United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-1776
Issued: April 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from an April 19, 2010 decision of the
Office of Workers’ Compensation Programs that denied his hearing loss claim as untimely and a
June 11, 2010 decision that denied merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant filed a timely claim for compensation under the
Federal Employees’ Compensation Act;1 and (2) whether the Office properly refused to reopen
appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that he was not reasonably aware that he had a hearing
impairment until he saw his personal physician in September 2009.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 23, 2009 appellant, then a 57-year-old former marine patternmaker, filed
an occupational disease claim alleging that working around loud machine noise at work caused
employment-related hearing loss and tinnitus. He stated that he first became aware of the
condition and its relationship to his federal employment on September 1, 2009, and that he had
not been exposed to loud noise since leaving federal employment, noting that he resigned
effective November 1, 1987. Appellant submitted a September 1, 2009 audiogram report and
stated that his physician, Dr. Preston A. Rice, a Board-certified otolaryngologist, explained that
his condition could be caused by exposure to loud noise.
In December 1, 2009 letters, the Office asked that appellant provide information
regarding his employment and claimed hearing loss, and asked that the employing establishment
provide information regarding noise exposure. On December 17, 2009 the employing
establishment responded that appellant had not been in a hearing conservation program and
provided his employment history, noting that he began employment in 1973 and in 1981 became
a management analyst. Audiograms dated July 15, 1981 and July 31, 1984 were submitted.
Appellant advised that he did not participate in a hearing conservation program.
By decision dated January 5, 2010, the Office denied the claim on the grounds that it was
not timely filed. On January 8, 2010 appellant requested a review of the written record. In a
September 1, 2009 report, Dr. Rice noted a two-week history of tinnitus in both ears and that he
was exposed to noise in his federal employment and in the military. He advised that an
audiogram demonstrated a normal sloping to mild/moderate high frequency sensorineural
hearing loss. The employing establishment provided a noise assessment worksheet.
In an April 19, 2010 decision, an Office hearing representative affirmed the January 5,
2010 decision. On May 19, 2010 appellant requested reconsideration, stating that he did not
know that he had tinnitus or a hearing loss until just before he saw Dr. Rice on September 1,
2009, and that shortly thereafter he filed his claim. He stated he was never told he had a hearing
problem prior to leaving federal employment, and did not know there was a relationship between
his hearing problems and his federal employment until he saw Dr. Rice.
In a nonmerit decision dated June 11, 2010, the Office denied appellant’s reconsideration
request.
LEGAL PRECEDENT -- ISSUE 1
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of the Act provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation

2

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

2

for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”3
Section 8119 of the Act provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.4 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.5
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability, and
the Board has held that the applicable statute of limitations commences to run although the
employee does not know the precise nature of the impairment.6 For actual knowledge of a
supervisor to be regarded as timely filing, an employee must show not only that the immediate
superior knew that he or she was injured, but also knew or reasonably should have known that it
was an on-the-job injury.7
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.8 Where the employee continues
in the same employment after he or she reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of federal employment, the time

3

5 U.S.C. § 8122(a).

4

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

5

Laura L. Harrison, 52 ECAB 515 (2001).

6

5 U.S.C. § 8119(b); Delmont L. Thompson, 51 ECAB 155 (1999).

7

Id. at § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

8

Larry E. Young, supra note 4.

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limitation begins to run on the date of the last exposure to the implicated factors.9 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.10
In interpreting section 8122(a)(1) of the Act, Office procedures provide that if the
employing establishment gives regular physical examinations which might have detected signs
of illness, such as hearing tests, it should be asked whether the results of such tests were positive
for illness and whether the employee was notified of the results.11
ANALYSIS -- ISSUE 1
The Board finds that appellant’s claim was timely filed. As noted above, if an employee
continues to be exposed to injurious working conditions, the time limitation begins to run on the
date of the last exposure.12 Therefore, the time for filing appellant’s claim did not begin to run
until November 1, 1987, the date he resigned. Accordingly, the three-year statute of limitations
would have expired no later than November 1, 1990 and appellant’s September 23, 2009 claim
for compensation would be barred by this exception to the statute of limitations.13 There is also
no evidence of record that establishes that appellant’s supervisor had actual knowledge of any
injury within 30 days or that written notice of the injury was given within 30 days. Furthermore,
this is not a case where the employing establishment had constructive knowledge of an
employment-related hearing loss as both appellant and the employing establishment
acknowledged that there was not a hearing conservation program in place.
In cases of latent disability, however, the time limitation does not begin to run until the
claimant is aware or by the exercise of reasonable diligence should have been aware, of the
causal relationship between the employment and the compensable disability.14 When appellant
filed this claim for compensation on September 23, 2009, he indicated that he was first aware of
his condition and its relationship to his employment on September 1, 2009 because Dr. Rice
explained to him at that time that his condition could be caused by noise exposure. While the
record contains employing establishment audiograms dated July 15, 1981 and July 31, 1984,
neither shows that at that time appellant was informed of the results or if any hearing loss
condition was considered employment related, and although he reported that his hearing
worsened over time and thought that it was due to aging, he also stated that his tinnitus condition
became severe two weeks prior to seeing Dr. Rice on September 1, 2009, when he was told by
the physician of the possible relationship of his hearing loss and tinnitus to employment noise
exposure.

9

Id.

10

Debra Young Bruce, 52 ECAB 315 (2001).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
12

Larry E. Young, supra note 4.

13

Supra note 2.

14

5 U.S.C. § 8122(b).

4

There is therefore no evidence to support that appellant should have had actual
knowledge of a possible causal relationship between his work activities and the hearing loss and
tinnitus prior to September 1, 2009.15 The Board therefore finds that there is no competent
evidence of record to start the running of the time limitations period prior to appellant’s assertion
that he became aware on September 1, 2009, the date of Dr. Rice’s examination, that his hearing
loss and tinnitus were employment related. As appellant has filed a timely claim for
compensation, the case will be remanded to the Office for further development to determine if he
sustained the claimed hearing loss and tinnitus causally related to factors of his federal
employment. Following such development as the Office deems necessary, it shall issue a
de novo decision on the merits of this case.
In light of the Board’s findings regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds that appellant’s claim was timely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 11 and April 19, 2010 are set aside, and the case is
remanded to the Office for further proceedings consistent with this decision of the Board.
Issued: April 1, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

15

Debra Young Bruce, supra note 10.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE AIRFORCE, TINKER
AIRFORCE BASE, Midwest, OK, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1255
Issued: November 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 14, 2008, which denied his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award issue in this case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award
for hearing loss.
FACTUAL HISTORY
The record reflects that appellant, an electrician, filed a claim which the Office, on
August 18, 2000, accepted for bilateral sensory hearing loss.1 However, his hearing loss was
determined to be unratable for schedule award purposes. On June 16, 2006 appellant, then
1

Appellant’s initial claim and supporting documents are not in the record before the Board.

59 years old, filed another claim for a schedule award for hearing loss.
May 31, 2000.

He retired on

Appellant submitted a treatment note from Dr. R. Stanley Baker, a Board-certified
otolaryngologist, dated November 3, 2005, who treated him for hearing loss which he attributed
to occupational exposure to noise prior to retiring five years earlier. Dr. Baker noted findings
upon physical examination of normal configuration of the external ears and canals, normal color,
contour and mobility of each tympanic membrane with no sign of middle ear inflammation or
damage. He noted asymmetric progression of the noise-induced hearing loss corresponded to
left-handed firearm use and referenced two audiograms performed on May 24, 2000 and
November 3, 2005. Dr. Baker recommended that appellant use hearing protection for his
recreational activity and advised that he was a possible candidate for amplification. Appellant
also submitted a job description.
In a statement of accepted facts, the Office noted that appellant worked as an electrician
from February 24, 1982 until his retirement on May 31, 2000. Appellant indicated that he first
realized his hearing loss was caused or aggravated by his employment on June 11, 1988. His
noise exposure at work comprised of noise from jet engines, B-1 bombers, blow dryer machines,
air rackets, sand blasters, grinders, cabin pressure machines, air compressors, rivet guns and
drills. Appellant was also exposed to noise during his military service in the reserve unit from
April 17, 1966 to September 1972 from turbine compressors, gas generators and hydraulic jeeps.
By letter dated November 15, 2007, the Office referred appellant to Dr. Richard B.
Dawson, a Board-certified otolaryngologist, for otologic examination and audiological
evaluation. It provided Dr. Dawson with a statement of accepted facts, available exposure
information and copies of all medical reports and audiograms.
Dr. Dawson performed an otologic evaluation of appellant on December 18, 2007 and
audiometric testing was conducted on the doctor’s behalf the same day. Testing at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed the following: right ear
10, 5, 25 and 55 decibels; left ear 5, 5, 15 and 25 decibels. Dr. Dawson determined that
appellant sustained bilateral high tone sensorineural hearing loss, worse on the right. He
indicated that the sensorineural hearing loss was due to noise exposure encountered in
appellant’s employment above the accepted level which caused temporary and permanent
threshold changes. Dr. Dawson advised that there was no other relevant history implicated to
cause the existing hearing loss. He noted an increase in hearing loss in the right ear since
appellant’s retirement in 2000. Dr. Dawson found no evidence of ratable impairment and
recommended a hearing aid in the right ear.
On February 5, 2008 Office medical adviser reviewed Dr. Dawson’s report and the
audiometric test of December 18, 2007 to determine if appellant’s hearing loss was ratable for
schedule award purposes. The medical adviser concluded that in accordance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment,2 (A.M.A., Guides),
(5th ed. 2001) that appellant had zero percent monaural hearing loss in the left and right ear and
zero percent bilateral sensorineural hearing loss. The medical adviser determined that
2

A.M.A., Guides (5th ed. 2001).

2

appellant’s hearing loss was not severe enough to be ratable for a schedule award after applying
the Office’s current standards for evaluating hearing loss to the results of the December 18, 2007
audiogram. The medical adviser noted that appellant had a zero percent hearing loss in both ears
in 2000 when he retired from federal employment. He noted that since then the pure tone
audiogram of December 18, 2007 showed an increased hearing loss in both ears, more so in the
right ear. The medical adviser opined that the noise-induced hearing loss did not progress when
the noise exposure ceased in 2000; therefore, the increase since 2000 was not due to noise
exposure of his federal job. He concurred with Dr. Dawson’s recommendation for amplification
in the right ear and opined that this need was partially due to the hearing loss present on the
retirement audiogram.
By decision dated February 14, 2008, the Office determined that the hearing loss was
employment related but not severe enough to be considered ratable for purposes of a schedule
award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id. See B.C., 58 ECAB ___ (Docket No. 06-925, issued October 13, 2006).

6

A.M.A., Guides 250 (5th ed. 2001).

7

Id.

8

Id.

9

Id.

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arrive at the amount of the binaural hearing loss.10 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.11
ANALYSIS
After appellant claimed a schedule award on June 13, 2006, the Office referred him to
Dr. Dawson for otologic examination and audiological evaluation. Dr. Dawson determined that
appellant’s hearing loss was work related and provided an audiogram taken on his behalf.
On February 5, 2008 an Office medical adviser applied the Office’s standardized
procedures to the December 18, 2007 audiogram performed for Dr. Dawson. Testing for the
right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibels losses of
10, 5, 25 and 55 respectively. These decibels were totaled at 95 and were divided by 4 to obtain
an average hearing loss at those cycles of 23.75 decibels. The average of 23.75 decibels was
then reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to equal 0,
which was multiplied by the established factor of 1.5 to compute a 0 percent loss of hearing for
the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz
revealed decibels losses of 5, 5, 15 and 25 respectively. These decibels were totaled at 50 and
were divided by four to obtain the average hearing loss at those cycles of 12.50 decibels. The
average of 12.50 decibels was then reduced by 25 decibels (the first 25 decibels were discounted
as discussed above) to equal 0 which was multiplied by the established factor of 1.5 to compute a
0 percent hearing loss for the left ear.
The Board finds that the Office medical adviser applied the proper standards to the
findings stated in Dr. Dawson’s report and the December 18, 2007 audiogram. The result is a
zero percent monaural hearing loss and a zero percent binaural hearing loss as set forth above.
Appellant questions why his employment-related hearing loss warrants a hearing aid but not a
schedule award. As noted, the Office uses a standard formula in determining whether a work
related hearing loss is severe enough to be ratable for schedule award purposes. On February 5,
2008 the Office medical adviser applied this standard formula to the December 18, 2007
audiogram and determined that appellant’s hearing loss is not ratable for schedule award
purposes. Consequently, appellant is not entitled to a schedule award for his hearing loss.
CONCLUSION
The Board finds the Office properly denied appellant’s claim for a schedule award for
hearing loss.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon., granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

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ORDER
IT IS HEREBY ORDERED THAT the February 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TSA – FEDERAL AIR MARSHAL SERVICE,
West Orange, NJ, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1516
Issued: March 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 11, 2009 appellant filed a timely appeal from a May 1, 2009 merit schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than a three percent left upper extremity
impairment, for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In a February 20, 2008 decision, the
Board set aside the Office’s July 10, 2007 schedule award finding three percent left arm
impairment.1 The Board noted that an Office medical adviser did not provide sufficient
1

Docket No. 07-2034 (issued February 20, 2008).

reasoning to support rating pain under Chapter 18 of the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 The Board
also found that the medical adviser did not consider all material information in the record. In a
March 13, 2009 decision,3 the Board set aside the Office’s June 4, 2008 decision denying
appellant’s claim for an additional schedule award.4 The Board found that the Office medical
adviser did not provide a formal pain-related analysis under section 18.3d of the A.M.A., Guides
or provided sufficient reasoning to explain why appellant’s impairment could not be evaluated
under Chapter 16 of the A.M.A., Guides. The case was remanded for further development. The
law and the facts of the previous Board decisions are incorporated herein by reference.
On remand, the Office requested that Dr. Morley Slutsky, an Office medical adviser,
provide a supplemental report addressing a pain-related analysis under section 18.3d of the
A.M.A., Guides when he previously evaluated the reports of Dr. Joseph Corona, a Boardcertified orthopedic surgeon, and Dr. George L. Rodriguez, a Board-certified physiatrist.
Dr. Slutsky was also asked whether appellant’s impairment could be evaluated under Chapter 16
of the A.M.A., Guides.
In a March 25, 2009 report, Dr. Slutsky noted that, since he was not an evaluating
physician, he could not perform a formal pain-related analysis. He stated that the medical
documentation clearly showed a situation where appellant’s left shoulder pain increased the
burden of his condition and limited his activities of daily living under section 2.4, page 18 of the
A.M.A., Guides. In a March 5, 2007 report, Dr. Rodriguez reported that appellant experienced
pain constantly and had limited his left shoulder due to pain during range of motion testing.
Dr. Corona also stated, in a December 27, 2006 report, that appellant complained of persistent
discomfort in his left shoulder. Dr. Slutsky noted that both physicians recommended three
percent impairment for pain as they felt it limited his ability to function. He advised that
appellant’s impairment could not be evaluated under Chapter 16 of the A.M.A., Guides.5 The
range of motion measurements obtained by Dr. Rodriguez were limited by pain and not a valid
basis on which to rate impairment. He did not know whether Dr. Corona used a goniometer for
his range of motion measurements, which the A.M.A., Guides at pages 475, 476 and 478
required for impairment rating purposes. Even if the range of motion measurements could be
used, Dr. Corona found normal left shoulder range of motion so there would be no range of
motion impairment. The surgical note of July 26, 2004 did not establish that appellant
underwent a distal clavicle resection and he was not eligible for an impairment rating secondary
to this procedure as assigned by Dr. Rodriguez. Regarding strength impairment, Dr. Slutsky
noted Dr. Corona found normal strength and Dr. Rodriguez noted that strength should not be
rated in the presence of pain. Therefore, no other left shoulder ratable deficits were identified in
the medical reports of records. Dr. Slutsky reiterated his opinion that appellant had three percent
impairment for pain under Chapter 18.3 of the A.M.A., Guides based on Dr. Corona’s
2

A.M.A., Guides (5th ed. 2001).

3

Docket No. 08-1907 (issued March 13, 2009).

4

Id.

5

While Dr. Slutsky opined that appellant’s impairment could not be evaluated under Chapter 16 of the sixth
edition of the A.M.A., Guides, his discussion of the evidence was under the fifth edition of the A.M.A., Guides.

2

evaluation. Section 18.3 was appropriate to rate sensory loss to appellant’s left upper extremity
as Dr. Corona’s evaluation revealed appellant had excess pain in the context of a verifiable
medical condition (left shoulder impingement status post arthroscopic decompression and
debridement of an anterior labral tear) that caused pain, which could not be addressed by other
impairment methods used in the A.M.A., Guides.
On April 13, 2009 the Office requested further clarification from Dr. Slutsky regarding
whether appellant’s impairment could be evaluated under Chapter 16 of the fifth edition of the
A.M.A., Guides. In an April 13, 2009 report, Dr. Slutsky reiterated that appellant’s impairment
could not be evaluated under Chapter 16 with reference to the reports submitted by
Dr. Rodriguez and Dr. Corona.
By decision dated May 1, 2009, the Office denied appellant’s claim for an additional
schedule award. It found that the medical evidence did not support that he had more than three
percent impairment to his left arm.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of schedule members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. For consistent results and to ensure equal justice, under the law to
all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides (5th ed. 2001)
has been adopted by the Office for evaluating schedule losses.8
Section 18.3d(c) of the A.M.A., Guides provides that an additional three percent
impairment may be granted for pain that slightly increases the burden of a condition.9 The
A.M.A., Guides warns that examiners should not use Chapter 18 to rate pain-related impairment
for any condition that can be adequately rated on the basis of the body and organ impairment
rating systems given in the other chapters.10
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the district medical adviser for an opinion concerning the nature and

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404; see also David W. Ferrall, 56 ECAB 362 (2005).

9

A.M.A., Guides, supra note 2 at 573.

10

Id. at 571. See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700
Exhibit 4 (November 2002).

3

percentage of impairment in accordance with the A.M.A., Guides, with the district medical
adviser providing rationale for the percentage of impairment specified.11
ANALYSIS
Appellant received a schedule award for a three percent impairment of his left arm for
residual impairment due to his work-related conditions. The Board remanded the case for a
supplemental opinion from the Office medical adviser addressing whether the provisions of
Chapter 16 were not adequate to rate appellant’s impairment and a formal pain-related analysis
under section 18.3d of the A.M.A., Guides.
On March 25, 2009 Dr. Slutsky reviewed the reports of record and concluded that
appellant had three percent impairment due to pain under Chapter 18.3 of the A.M.A., Guides.
He could not perform a formal pain-related analysis on appellant, as he was not an examining
physician. However, both Dr. Rodriguez and Dr. Corona had recommended three percent
impairment for pain as they felt the left shoulder pain increased the burden of appellant’s
condition and limited his activities of daily living under section 2.4, page 18 of the A.M.A.,
Guides.
In his March 25 and April 13, 2009 reports, Dr. Slutsky further explained why the
provisions of Chapter 16 were not adequate to rate appellant’s pain impairment. He advised that
Dr. Rodriguez incorrectly rated appellant for undergoing a distal clavicle resection, which was
not supported by the surgical report. Dr. Slutsky also noted range of motion findings were
influenced by pain avoidance on appellant’s part which did not reflect the maximum active
shoulder range of motion, as required. While it was not clear whether Dr. Corona used a
goniometer for his range of motion measurements, he had found normal range of motion for the
left shoulder. Therefore, range of motion was not a basis for rating impairment. Dr. Slutsky
further found that there was no impairment due to loss of strength as Dr. Corona found normal
strength. The medical adviser also noted that Dr. Rodriguez had noted that strength was not to
be rated in the presence of pain.12 The Board finds that Dr. Slutsky provided sound reasoning as
to why the medical reports of Dr. Rodriguez and Dr. Corona could not be used to rate
impairment under Chapter 16 of the A.M.A., Guides. Dr. Slutsky concluded that appellant had
three percent impairment due to pain under Chapter 18.3d of the A.M.A., Guides. There is no
other medical evidence, consistent with the A.M.A., Guides to establish greater impairment.
On appeal, appellant’s attorney contends that appellant’s physicians differ as to the extent
of his impairment and an Office medical adviser should not be able to decide which physician is
more credible. He asserts appellant should be sent for further medical examination. The Board
previously found that Dr. Slutsky provided sound reasoning for why he did not use the range of
motion and distal clavicle resection impairment ratings by Dr. Dr. Rodriguez. Based on
Dr. Corona’s evaluation, appellant had a three percent impairment of his left arm under the
A.M.A., Guides. He explained that section 18.3 was appropriate to rate sensory loss to
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
12

See A.M.A., Guides, 508, section 16.8a.

4

appellant’s left upper extremity as Dr. Corona’s evaluation revealed appellant had excess pain in
the context of a verifiable medical condition (left shoulder impingement status post arthroscopic
decompression and debridement of an anterior labral tear) that caused pain, which could not be
properly rated by other impairment methods used in the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has no more than a three percent impairment of his left
upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 22, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 18-0579
Issued: September 14, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 24, 2018 appellant filed a timely appeal from an August 31, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
lapsed from the last merit decision, dated June 3, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On March 4, 2015 appellant, then a 58-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, he sustained a left ring finger, right thigh, and right knee
1

5 U.S.C. § 8101 et seq.

injury when he caught himself from falling while delivering mail. He stopped work on
March 5, 2015. OWCP accepted the claim for right quadriceps tendon tear, right knee medial
meniscus tear, and left hand finger sprain of the fourth digit.
Appellant sought treatment with Dr. Nikhil G. Pandhi, a Board-certified orthopedic
surgeon. On July 1, 2015 he underwent an OWCP-approved right knee arthroscopy. In an
August 20, 2015 report, Dr. Pandhi reported that appellant was doing much better following his
right knee arthroscopy. Appellant returned to work on August 25, 2015.
On February 22, 2016 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated March 17, 2016, OWCP requested that appellant submit a
report from his attending physician addressing his work-related condition, the date of maximum
medical improvement (MMI), objective findings, subjective complaints, and an impairment rating
rendered according to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).2 It afforded appellant 30 days to provide
the requested information.
In a May 3, 2016 medical report, Dr. Pandhi reported that appellant was doing well and
could return to his full work activities. He provided physical examination findings and a review
of diagnostic testing. Dr. Pandhi noted that the right knee did not have symptoms of instability,
but that appellant had occasional discomfort along the medial joint line which was manageable.
By decision dated June 3, 2016, OWCP denied appellant’s claim for a schedule award,
finding that the evidence submitted was insufficient to establish that he sustained permanent
impairment of a scheduled member or function of the body.
On June 7, 2017 appellant requested reconsideration of the June 3, 2016 decision. He
contended that his physician failed to provide him with the relevant medical evaluation despite
numerous requests.
In support of reconsideration, appellant submitted an April 20, 2017 narrative report from
Dr. Pandhi. Dr. Pandhi explained that appellant was originally evaluated on March 6, 2015 for a
March 4, 2015 injury to his right thigh. Appellant suffered a right quadriceps muscle rupture and
right knee medial meniscus tear. Dr. Pandhi noted that the quadriceps injury healed uneventfully,
but that the right knee required surgery. On July 1, 2015 appellant underwent a right knee
arthroscopy with partial medial meniscectomy and lateral partial meniscectomy without
complication. Dr. Pandhi reported that postoperatively, appellant developed prepatellar bursitis
which was treated with a cortisone injection on August 20, 2015. He released appellant to full
duty on May 3, 2016. Dr. Pandhi evaluated him once again on February 28, 2017 and reiterated
the need for long-term core, hip, quadriceps, and hamstring strengthening. His July 1, 2015
operative report was also submitted detailing findings from appellant’s right knee arthroscopy.

2

A.M.A., Guides (6th ed. 2009).

2

By decision dated August 31, 2017, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.3 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).4
The Board has found that the imposition of the one-year limitation does not constitute an abuse of
the discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation, if the claimant’s application for review demonstrates clear evidence of error on the part
of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a claimant
must submit evidence relevant to the issue decided by OWCP. The evidence must be positive,
precise, and explicit and it must manifest on its face that OWCP committed an error.6
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.7
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to demonstrate clear evidence of error.8 It is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence demonstrates
clear error on the part of OWCP.10 The Board makes an independent determination as to whether
a claimant has submitted clear evidence of error on the part of OWCP.11

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.4(b) (February 2016).

5

See M.P., Docket No. 17-0367 (issued March 12, 2018); Thankamma Mathews, 44 ECAB 765 (1993).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

Annie L. Billingsley, 50 ECAB 210 (1998).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000).

3

ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed within the one-year time limitation period set forth in 20 C.F.R.
§ 10.607.
In its August 31, 2017 decision, OWCP determined that appellant failed to file a timely
application for review. An application for reconsideration must be received within one year of the
date of OWCP’s merit decision.12 OWCP issued its most recent merit decision, denying
appellant’s schedule award claim, on June 3, 2016. A request for reconsideration must be received
by OWCP within one year of the date of OWCP’s decision for which review is sought.13
Therefore, appellant had one year from June 3, 2016 to submit a timely request for
reconsideration.14 Appellant’s request for reconsideration was received on June 7, 2016, more
than one year after the date of the last merit decision of record on June 3, 2016. Thus, the request
for reconsideration was untimely filed.15
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.16 The Board has explained
that if appellant has requested reconsideration, and has submitted new and relevant evidence with
respect to a permanent impairment or an increased permanent impairment, then a claimant will be
entitled to a merit decision on the issue,17 but when a claimant does not submit any relevant
evidence with respect to a permanent impairment or increased permanent impairment, then OWCP
will properly consider the request under the standards for reconsideration. As appellant’s request
for reconsideration was untimely he must demonstrate clear evidence of error by OWCP in
denying his claim.18

12

20 C.F.R. § 10.607.

13

Supra note 4.

14

In computing the time for requesting reconsideration, the date of the event from which the designated time period
begins to run shall not be included when computing the time period. However, the last day of the period shall be
included unless it is a Saturday, a Sunday, or a legal holiday. The time for requesting reconsideration of OWCP’s
June 3, 2016 decision began to run on June 4, 2016, and ended on June 3, 2017. The Board notes, however, that
June 3, 2017 fell on a Saturday. It is well established that when a time limitation expires on a nonbusiness day, the
limitation is extended to include the next business day. Therefore, because the time limitation for filing a request for
reconsideration fell on Saturday, the time period for filing a request for reconsideration did not expire until the next
business day, which was Monday, June 5, 2017. See M.H., Docket No. 13-1901 (issued January 8, 2014); Debra
McDavid, 57 ECAB 149, 150 (2005); Angel M. Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB
427, 427-28 (1990).
15

P.R., Docket No. 14-0300 (issued May 12, 2014).

16

See C.H., Docket No. 17-0226 (issued June 26, 2018).

17

See Linda T. Brown, 51 ECAB 115 (1999).

18

See Debra McDavid, 57 ECAB 149 (2005).

4

Appellant submitted a July 31, 2017 note from Dr. Pandhi releasing him from his care.
This evidence is immaterial to his schedule award claim and fails to demonstrate clear evidence of
error. The only other medical evidence submitted were Dr. Pandhi’s July 1, 2015 operative report
and his April 20, 2017 narrative report. Dr. Pandhi provided a summary of injury, course of
treatment, surgery, postoperative evaluation, and reported that appellant was released to full duty
on May 3, 2016. This evidence did not provide a permanent impairment rating. It did not raise a
substantial question as to the correctness of OWCP’s decision.19 Rather, these reports were
substantially similar to Dr. Pandhi’s May 3, 2016 report which was reviewed by OWCP in its
June 3, 2016 decision. This evidence was not positive, precise, and explicit in manifesting on its
face that OWCP committed an error in denying his schedule award claim.20 The Board notes that
clear evidence of error is intended to represent a difficult standard. Evidence, such as a detailed
well-rationalized medical report, which if submitted before the merit denial might require
additional development of the claim, is insufficient to demonstrate clear evidence of error.21 This
evidence, however, is insufficient to establish that OWCP erred in its denial of appellant’s claim.22
Appellant did not submit the type of positive, precise, and explicit evidence that manifests
on its face that OWCP committed an error.23 Thus, he did not demonstrate clear evidence of error
in the denial of his schedule award claim.24
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

19

J.J., Docket No. 13-1363 (issued November 6, 2013).

20

See A.C., Docket No. 18-0201 (issued June 29, 2018); see also G.B., Docket No. 13-1557 (issued
October 29, 2013).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016).

22

See W.R., Docket No. 09-2336 (issued June 22, 2010).

23

J.T., Docket No. 10-0313 (issued February 24, 2010).

24

B.B., Docket No. 08-0232 (issued August 7, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the August 31, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
SPOKANE PROCESSING & DISTRIBUTION
CENTER, Spokane, WA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1681
Issued: December 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 21, 2008 appellant filed a timely appeal from an April 1, 2008 nonmerit decision
of the Office of Workers’ Compensation Programs finding that he abandoned his request for a
hearing. As more than one year has elapsed between the filing of this appeal and the last merit
decision dated March 28, 2007, the Board lacks jurisdiction to review the merits of this case.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the April 1, 2008
nonmerit decision.
ISSUE
The issue is whether the Office properly found that appellant had abandoned his request
for an oral hearing.

1

20 C.F.R. §§ 501.2(c), 501.3.

FACTUAL HISTORY
On October 20, 2005 appellant, then a 30-year-old postal clerk, filed an occupational
disease claim alleging that he sustained tendinitis due to repetitive motion and keyboarding. He
stopped work on September 21, 2005 and returned to a reassigned position on October 11, 2005.
By decision dated December 6, 2005, the Office denied appellant’s claim on the grounds
that he did not establish the employment exposure occurred as alleged. It noted that he did not
respond to its request for additional factual information. On December 26, 2005 appellant
requested an oral hearing. Following a preliminary review of the case, the Office hearing
representative reversed the December 6, 2005 decision and accepted that he sustained bilateral
wrist tendinitis causally related to factors of his federal employment.
On December 7, 2006 the Office notified appellant that it had accepted his claim for
resolved bilateral wrist tendinitis. On January 30, 2007 appellant filed a notice of recurrence of
disability beginning July 9, 2006 causally related to his accepted work injury. He stopped work
on July 10, 2006 and returned to work on July 31, 2006.
By decision dated March 28, 2007, the Office found that appellant had not established
that he sustained an employment-related recurrence of disability. On April 22, 2007 appellant
requested an oral hearing. On May 4, 2007 it acknowledged his request for an oral hearing and
informed him that it would be docketed for a hearing in six to eight months.
In a letter dated February 12, 2008, the Office notified appellant that a telephonic hearing
on his case would be held on March 17, 2008 at 1:30 p.m. eastern time.
By decision dated April 1, 2008, the Office found that appellant had abandoned his
request for an oral hearing. It noted that there was no indication that he notified the Office either
before or after the hearing to explain his failure to telephone at the scheduled time for his
hearing.
LEGAL PRECEDENT
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b) provides as follows: “Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary [of
Labor] under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [his] claim before a representative of the
Secretary.”
With respect to abandonment of hearing requests, Chapter 2.1601.6(e) of the Office’s
procedure manual provides in relevant part:
“e. Abandonment of Hearing Request.
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
2

appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
Under these circumstances, [the Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the [district] Office….”2
ANALYSIS
By decision dated March 28, 2007, the Office found that appellant had not established
that he sustained a recurrence of disability due to his accepted employment injury. Appellant
timely requested an oral hearing. In a February 12, 2008 letter, it notified appellant that a
telephonic hearing was scheduled for 1:30 p.m. eastern time on March 17, 2008. He did not
telephone at the appointed time or request a postponement of the hearing.3 Appellant further did
not explain his failure to appear at the hearing within 10 days of the scheduled hearing date of
February 12, 2008.4 As this meets the criteria for abandonment specified in the Office procedure
manual, the Board finds that the Office properly determined that he abandoned his request for an
oral hearing.5
On appeal, appellant argued that he misplaced his written notice of the telephonic hearing
and did not locate it in time to realize that the telephonic call was scheduled for eastern time
rather than pacific time. He asserted that he telephoned the hearing representative and left her a
message requesting that another hearing be scheduled. Appellant also telephoned the Office but
only contacted voicemail. There is no evidence in the case record, however, showing that
appellant telephoned the hearing representative or the Office on or within 10 days of March 17,
2008 and explained his failure to appear.6
CONCLUSION
The Board finds that appellant abandoned his request for a telephonic oral hearing.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also G.J., 58 ECAB ___ (Docket No. 07-1028, issued August 16, 2007).
3

Appellant was directed to call a toll-free number a few minutes before 1:30 p.m., eastern time, on February 12,
2008, but there is no evidence that he did so or otherwise made himself available for the scheduled telephonic
hearing.
4

Id.

5

Claudia J. Whitten, 52 ECAB 483 (2001).

6

Appellant submitted new evidence with his appeal. The Board has no jurisdiction to review new evidence on
appeal; see 20 C.F.R. § 501.2(c). He can submit this evidence to the Office and requested reconsideration under 5
U.S.C. § 8128.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 1, 2008 is affirmed.
Issued: December 11, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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Appearances:
Sally LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0381
Issued: September 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 23, 2015 appellant, through counsel, filed a timely appeal from a July 27,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board.
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its July 27, 2015 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant is entitled to wage-loss compensation for standby premium
pay, beginning May 10, 2008.
FACTUAL HISTORY
On February 28, 2007 appellant, then a 52-year-old biomedical engineering technician,
sustained a neck and shoulder injury after falling backwards over an exposed utility box. He
stopped work on August 6, 2007 and received wage-loss compensation until February 19, 2008
when he was released to regular duty without restrictions. Appellant’s pay rate during this time
included standby premium pay as the employing establishment advised that he worked 18 on-call
shifts per year. He worked regular duty without restrictions from February 19, 2008 until May 8,
2014 when OWCP accepted a recurrence of total disability based on worsening of symptoms.
Appellant received disability compensation on the supplemental compensation rolls beginning
May 8, 2014 and was placed on the periodic compensation rolls for total disability on
November 25, 2014.4
OWCP accepted the claim for neck sprain, left shoulder and upper arm sprain,
displacement of cervical intervertebral disc without myopathy, brachial neuritis or radiculitis,
dysphagia, and esophageal reflux. An initial x-ray of the cervical spine revealed an anterior
spinal needle at the C6-7 disc level, moderate osteophyte formation at C5-6, and mild osteophyte
formation at C6-7. On September 27, 2007 appellant underwent an OWCP authorized cervical
neck fusion performed by Dr. Cary Alberstone, a Board-certified neurological surgeon.
In a February 5, 2008 report, Dr. Alberstone advised that appellant complained of neck
pain. He assessed cervical disc herniation status post multilevel anterior cervical discectomy and
fusion. Dr. Alberstone noted that appellant was able to return to work without restrictions
beginning February 19, 2008. In a March 18, 2008 report, he noted that appellant complained of
left shoulder pain. Dr. Alberstone advised that appellant required no additional treatment at that
time and indicated that his work status remained the same.
In a February 23, 2009 report, Dr. Hany Fouad, Board-certified in family medicine,
advised that appellant was unable to work nights while on medication.
In May 22, 2012 claims for compensation (Form CA-7), appellant requested
compensation for on-call wage loss from May 10, 2008 through May 15, 2012 and retention pay
wage loss from January 6, 2008 through May 18, 2012.5 In a May 31, 2012 call record, he
corrected the dates provided on his claim for compensation forms. Appellant indicated that his
loss of retention pay began on May 10, 2008 and his on-call wage loss began on June 1, 2008.
In a July 14, 2009 report, Dr. Fouad, advised that appellant was under his care since
July 12, 2007 for chronic neck pain. He also assessed generalized anxiety disorder with
4

OWCP used the date disability began pay rate as it was greater than the date of recurrence pay rate.

5

On appeal, appellant is not arguing that he is entitled to retention pay.

2

associated panic attacks. Dr. Fouad indicated that due to those conditions appellant was unable
to work night shifts.
By letter dated June 6, 2012, OWCP informed appellant of the type of evidence needed to
establish entitlement to other wage loss for the period beginning on May 10, 2008. On June 7,
2012 OWCP asked the employing establishment to provide additional information regarding
appellant’s claim for compensation.
In a June 8, 2012 report, Dr. Fouad advised that appellant was under his care since
July 12, 2007 for chronic left shoulder pain and hand numbness. He noted that he prescribed
hydrocodone-acetaminophen, which caused drowsiness rendering appellant unable to drive the
65 miles from his home to work at night for on-call shifts. Dr. Fouad also advised that appellant
took paroxetine for depression, which he attributed to the original injury and appellant’s inability
to cope with the significant loss of income. He indicated that he also prescribed lorazepam for
anxiety, which he attributed to the original injury and appellant’s inability to perform his job.
Dr. Fouad noted that appellant began taking these medications on July 12, 2007.
In a June 12, 2012 letter, a human resources specialist of the employing establishment
advised that appellant’s retention pay was not extended because he failed to complete the written
justification for renewal that was required each year. The specialist also noted that on
January 29, 2009 appellant advised that he could not continue on the on-call list and that he
would no longer be available for on-call duty. Accompanying the June 12, 2012 letter were
e-mails between appellant and management. In a January 29, 2009 e-mail, appellant advised that
he was no longer available for on-call duty due to the stress involved in being on call every three
weeks. E-mails from March 2009 between appellant and the employing establishment were also
submitted. Robert Benkeser, director of facilities management at the employing establishment,
acknowledged that appellant’s medical reports indicated that he was unable to perform night
work because of the side effects of his medications. He noted that appellant would only be
assigned to on-call work from 8:00 a.m. until 6:00 p.m. on weekends and holidays. Appellant
argued that he was being discriminated against for his medical condition and refused to be on
call every weekend and holiday. Mr. Benkeser noted that his message did not indicate that
appellant would be on call every weekend and holiday and that the work would be evenly
distributed. Appellant advised that he would no longer be on call until he ceased taking
medication.
By decision dated July 17, 2012, OWCP denied appellant’s claim for other wage-loss
compensation. It acknowledged that medical evidence of record indicated that he was unable to
work at night. However, OWCP noted that the employing establishment was able to
accommodate this restriction and offered appellant on-call shifts during the day.
On January 7, 2013 appellant requested reconsideration. In a December 24, 2012 report,
Dr. Fouad advised that appellant held off on taking medication during the daytime in order to
perform his usual work duties. He noted that the side effects of appellant’s medication included
drowsiness and impaired judgment. Dr. Fouad indicated that appellant could not drive or answer
emergency calls at night while on call due to long hours of driving and anxiety from the induced
stress, which worsened in the evening.

3

By decision dated April 8, 2013, OWCP denied appellant’s request for reconsideration
without conducing a merit review.
On June 25, 2013 appellant again requested reconsideration. In a May 10, 2013 report,
Dr. Fouad reiterated the history of appellant’s injury. He noted that appellant’s continuous pain
required the use of medication. Dr. Fouad advised that appellant held off from taking his
medications during the daytime in order to perform his usual work duties. He indicated that
appellant could not drive, answer emergency calls at night, or make sound professional decisions
while on medication.
In a June 25, 2013 statement, appellant indicated that when he returned to work he was
able to work on-call shifts as his pain was tolerable. He noted that later, his pain worsened and
indicated that when he was scheduled for on-call work he would not take any medication as the
side effects of the hydrocodone rendered him unable to drive or make sound decisions at work.
Appellant contended that the employing establishment never formally offered him modified
on-call duty and that there was no such thing as on-call duty only on the weekend. He argued
that a mere suggestion in an e-mail about weekend on-call work could not constitute a job offer.
By decision dated September 13, 2013, OWCP denied modification of its prior decision.
In an April 29, 2014 report, Dr. Brian Santini, Board-certified in internal medicine,
advised that appellant had shoulder and arm pain. He noted that appellant was having trouble
driving and working at night due to his pain medication. Dr. Santini indicated that appellant
wanted to stop taking the pain medication and go to in-house rehabilitation. He advised that
appellant should be off work for four weeks.
In an August 18, 2014 letter, appellant, through counsel, again requested reconsideration.
She argued that he was entitled to retention pay as the record established that at the time of his
injury he was receiving retention pay and that his loss of on-call or standby pay was a direct
consequence of the medical treatment received for the accepted work injuries.
By decision dated November 20, 2014, OWCP denied modification of its prior decision.
Appellant, through counsel, again requested reconsideration on March 31, 2015. She
argued that he could not maintain his on-call status because his medications interfered with his
ability to drive and work. Appellant contended that the employing establishment’s e-mail
offering daytime only on-call shifts was not a formal job offer.
In a January 30, 2015 statement, appellant indicated that his physician advised him to
cease working on-call shifts. He acknowledged that the employing establishment proposed to
schedule him for on-call shifts during the day on weekends and holidays. However, appellant
argued that this was not a solution because he still would be unable to take his medications as
prescribed. He also noted that Mr. Benkeser told him that he would not entertain his work
restriction of no night shifts.
By decision dated April 16, 2015, OWCP denied appellant’s request for reconsideration
without conducting a merit review.

4

On April 28, 2015 appellant, through counsel, again requested reconsideration.
reiterated the arguments previously made.

He

In a December 17, 2014 report, Dr. Santini advised that appellant began taking medicine
for anxiety and depression secondary to his chronic pain after undergoing neck surgery in 2008.
He noted that appellant was unable to work or drive after taking lorazepam. Dr. Santini
indicated that appellant was taking medications after work and during the night for anxiety and
depression, which prevented him from performing on-call shifts secondary to sleep deprivation.
Appellant noted that not taking his medications or performing on-call shifts would have
exacerbated his chronic pain from his neck and shoulder injuries, anxiety, and depression.
By decision dated July 27, 2015, OWCP denied modification of its previous decision.
On appeal appellant, through counsel, argues that on-call pay is a component of pay
under FECA and that his loss of on-call pay was directly related to the accepted conditions.
Counsel notes that OWCP found that there was no explanation for why he was unable to drive
for daytime on-call shifts, as he demonstrated the ability to drive to work in the morning for his
regular shift. She argues that appellant was only able to drive for his regular shift because he
was not taking his medications as prescribed and that OWCP incorrectly interpreted his devotion
to work as a clear ability to drive. Counsel cites similarities with the facts in the case of
Diane Jones, where the employee’s physician explained that the claimant’s prescribed
medications “caused disabling cognitive side effects of decreased alertness and concentration
making her unable to drive to work.”6 She notes that the Board found this opinion sufficient to
remand the case for further development on the issue of whether appellant sustained a recurrence
of disability.
LEGAL PRECEDENT
Compensation is payable for loss of premium pay due to an employment-related
condition.7 A claimant has the burden of proving by a preponderance of the evidence that he or
she is disabled for work as a result of an accepted employment injury and submit medical
evidence for each period of disability claimed.8 Whether a particular injury causes an employee
to be disabled for employment and the duration of that disability are medical issues.9 The issue
of whether a particular injury causes disability for work must be resolved by competent medical
evidence.10 To meet this burden, a claimant must submit rationalized medical opinion evidence,

6

Diane Jones, Docket No. 01-2267 (issued September 24, 2002).

7

Obie R. Hale, Docket No. 97-0330 (issued December 2, 1998); Dempsey Jackson, Jr., 40 ECAB 942 (1989);
Thomas Donaghue, 39 ECAB 336 (1988).
8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

10

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.11
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.12
ANALYSIS
OWCP accepted appellant’s claim for neck sprain, left shoulder, and upper arm sprain,
displacement of cervical intervertebral disc without myopathy, brachial neuritis or radiculitis,
dysphagia, and esophageal reflux. Appellant was released to full duty without restrictions on
February 19, 2008. While working full duty without restrictions he advised that he would no
longer work on-call shifts due to stress. Subsequently, appellant alleged that his inability to
work on-call shifts was due to the accepted work injury. The Board finds that medical evidence
of record is insufficient to establish that the accepted conditions caused his inability to work
on-call shifts.
The Board finds that appellant has not established entitlement to other wage-loss
compensation, commencing May 10, 2008, due to the February 28, 2007 employment injury.
Appellant alleged that his loss of on-call pay was a result of his accepted work conditions. In
support of his claim for wage-loss compensation he submitted several reports from Dr. Fouad.
In a December 24, 2012 report, Dr. Fouad advised that appellant held off on taking medication
during the daytime in order to perform his usual work duties. Appellant noted that the side
effects of his medication included drowsiness and impaired judgment and indicated that he could
not drive or answer emergency calls at night while on call. This report is insufficient to establish
that the accepted work-related conditions rendered him unable to work on-call shifts. Although
Dr. Fouad noted that appellant is unable to drive or take emergency calls at night, he did not
address whether appellant was able to work on-call shifts during the day.
The March 3, 2009 e-mail from Mr. Benkeser advised that appellant could work on call
during the day from 8:00 a.m. to 6:00 p.m. on weekends and holidays, which appellant declined
in a March 4, 2009 e-mail. In his May 10, 2013 report, Dr. Fouad indicated that appellant could
not drive, answer emergency calls at night, or make sound professional decisions while on
medication. In February 23 and July 14, 2009 reports, he advised that appellant was unable to
work nights due to his medication. In a June 8, 2012 report, Dr. Fouad advised that he
prescribed hydrocodone-acetaminophen, which caused drowsiness rendering appellant unable to
drive the 65 miles at night for on-call shifts. Again, he indicated that appellant could not drive or
answer emergency calls at night, but he failed to note any daytime restrictions that would prevent
him from working on-call shifts.
11

C.S., Docket No. 08-2218 (issued August 7, 2009).

12

Sandra D. Pruitt, 57 ECAB 126 (2005).

6

Appellant submitted several reports from Dr. Santini. In his December 17, 2014 report,
Dr. Santini advised that appellant was unable to work or drive after taking his prescribed
lorazepam. He indicated that appellant was taking medications after work and during the night
for anxiety and depression, which prevented appellant from performing on-call shifts and opined
that appellant’s chronic pain, anxiety, and depression would be exacerbated without taking his
medications and performing on-call shifts. Dr. Santini notes that appellant’s medication for
anxiety and depression prevented him from taking on-call shifts. However, OWCP has not
accepted anxiety and depression as diagnosed conditions. Therefore, this report is insufficient to
establish that appellant was unable to perform on-call shifts due to the accepted work-related
conditions. In his April 29, 2014 report, Dr. Santini, advised that appellant was experiencing
shoulder and arm pain. He noted that appellant was having trouble driving and working at night
due to his pain medication. Dr. Santini indicated that appellant was unable work or drive at night
due to the side effects of his medications, but he failed to note any daytime restrictions that
would prevent him from working on-call shifts. As a result, this report is insufficient to
discharge appellant’s burden of proof.
Furthermore, evidence of record does not establish that the employing establishment
withdrew appellant’s entitlement to on call or standby premium pay. On January 29, 2009
appellant voluntarily requested that he no longer be on call due to the stress involved in being on
call every three weeks. The record supports that he voluntarily withdrew himself from on-call
shifts although it remained available to him.
On appeal appellant, through counsel, argues that on-call pay is a component of pay
under FECA and that his loss of on-call pay was directly related to the accepted work-related
condition. The Board notes that standby premium pay is a component of pay when calculating a
claimant’s pay rate under FECA.13 However, as discussed, the medical evidence of record does
not establish that appellant’s accepted conditions rendered him unable to work on-call shifts.
Counsel contends that the present case is similar to Diane Jones, where the Board found that a
physician’s opinion that an employee’s prescribed medications rendered her unable to drive to
work was sufficient to remand the case for further development. The present case is
distinguished from Diane Jones, because appellant’s physician opined that his medications
rendered him incapable of working and driving at night. The medical evidence of record does
not specify any daytime restrictions. Therefore, appellant has not established that his accepted
conditions prevented him from working daytime on-call shifts.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

13

See supra note 6; 5 U.S.C. § 8114 (the value of subsistence and quarters, and of any other form of remuneration
in kind for services if its value can be estimated in money, and premium pay under section 5545(c)(1) of this title are
included as part of the pay). See also 5 U.S.C. § 5545(c) (an employee in a position requiring him regularly to
remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of
which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty
on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular,
unscheduled overtime duty in excess of his regularly scheduled weekly tour).

7

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
wage-loss compensation for standby premium pay beginning May 10, 2008.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2016
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-1479
Issued: December 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2012 appellant filed a timely appeal of a May 30, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether OWCP properly denied authorization for appellant’s bilateral elbow
ulnar nerve revision.
FACTUAL HISTORY
On June 2, 1989 appellant, then a 41-year-old letter carrier, filed a Form CA-2 alleging
an occupational disease in the performance of duty. OWCP accepted her claim for dorsal
ganglion cyst of the left wrist, bilateral carpal tunnel syndrome and left cubital tunnel syndrome.
1

5 U.S.C. § 8101 et seq.

On August 5, 1994 appellant injured her right upper extremity on the job. OWCP accepted her
claim for right deltoid strain.2 Appellant underwent left wrist ganglion cyst excision on June 13,
1989, left ulnar nerve and cubital tunnel release on June 16, 2004, right ulnar nerve and cubital
tunnel release on August 26, 2005 and right carpal tunnel release on December 16, 2010. She
has remained off duty.3
In a September 7, 2011 report, Dr. Obinwanne Fidelis Chinenye Ugwonali, a Boardcertified orthopedic surgeon, related that appellant experienced bilateral hand, wrist and shoulder
pain. On examination of the right upper extremity, he observed limited range of motion (ROM),
diminished strength and greater tuberosity tenderness of the shoulder, ulnar nerve distribution
sensation and positive Tinel’s sign at the elbow. An electromyogram (EMG) conducted on
April 4, 2011 revealed mild to moderate right carpal tunnel syndrome. Dr. Ugwonali diagnosed
chronic bilateral upper extremity pain status post bilateral carpal tunnel and cubital tunnel
releases, cervicalgia, cervical spondylosis and possible cervical radiculopathy. He recommended
right cubital tunnel revision surgery.4
OWCP referred appellant to Dr. Harold H. Alexander, a Board-certified orthopedic
surgeon, for a second opinion examination. In an August 24, 2011 report, Dr. Alexander noted
that appellant retired sometime after 2004 and that her ulnar nerve syndrome worsened because
she fell on her elbows when she helped her husband get up on multiple occasions.5 On
examination, he found diminished right shoulder ROM, lack of right opponens muscle function,
right elbow extensor weakness, right deltoid pain, decreased left stocking-glove sensation to light
touch, left hand numbness during Phalen’s maneuver, bilateral grip weakness and limited
bilateral abductor digiti minimi function. After reviewing the medical file, Dr. Alexander
remarked that appellant’s symptoms were inconsistent with the objective findings and likely
exaggerated. He advised against further surgery. Following an October 3, 2011 functional
capacity examination, Dr. Alexander noted in a November 20, 2011 addendum report that
appellant could return to sedentary duty sometime in the next six months and was a candidate for
vocational rehabilitation.
In a November 30, 2011 report, Dr. Ugwonali evaluated appellant and observed right
thumb tenderness at the first annular pulley and carpometacarpal joint, crepitus and limited
ROM. A cervical magnetic resonance imaging scan exhibited mild spondylosis and lordotic
straightening. Dr. Ugwonali diagnosed right trigger thumb, right carpometacarpal joint arthritis,
cervical spondylosis and chronic bilateral upper extremity pain status post bilateral carpal tunnel
and cubital tunnel releases.6 A December 9, 2011 EMG conducted by Dr. Shevin D. Pollydore, a

2

OWCP combined these claims under File No. xxxxxx930.

3

The foregoing information was incorporated into the February 14, 2012 statement of accepted facts.

4

Dr. Ugwonali’s October 19, 2011 follow-up report presented similar findings.

5

The case record indicates that appellant’s husband, who had been recovering from a stroke, passed away on
December 12, 2011.
6

Dr. Ugwonali’s follow-up reports of January 4 to April 18, 2012 presented similar findings.

2

Board-certified physiatrist, showed evidence of left elbow ulnar nerve injury with axonal
involvement.
Dr. Ugwonali submitted an authorization request form on March 22, 2012 for right elbow
ulnar nerve revision. In an April 18, 2012 report, he detailed that appellant did not fall on her
elbows but instead aggravated her condition when she attempted to lift her husband after he fell.
Dr. Ugwonali opined that she was rendered disabled by her industrial injury and recommended
left cubital tunnel revision surgery.
OWCP determined that a conflict in medical opinion arose between Dr. Alexander and
Dr. Ugwonali as to whether appellant’s surgery should be approved. It referred the case to
Dr. Thomas R. Cadier, a Board-certified orthopedic surgeon, for a referee examination. In an
April 2, 2012 report, Dr. Cadier reviewed the February 14, 2012 statement of accepted facts and
medical file. He evaluated appellant and elicited bilateral pain and tenderness to palpation and
manipulation of the wrist, elbow and upper arm, left stocking-glove hypesthesia and bilateral
grip weakness in the absence of upper extremity muscle atrophy. Dr. Cadier opined that she
demonstrated “classic symptom magnification and strong evidence of malingering.” He
explained:
“The degree of weakness in use of the upper extremities belied the fact that
[appellant] was carrying a purse which she managed without apparent difficulty.
She was able to open and close the door to the examining room without difficulty
although the forces generated by this simple act would be greater than that force
she demonstrated as her best effort in direct testing during the examination.... In
spite of the complaints of weakness ... [appellant] was able to adjust herself on the
examining table with her arms lifting a high percentage of her body weight to get
comfortable, again, this force being far in excess of what she demonstrated when
asked to resist my hand in testing biceps, triceps, grip strength, etc.”
Dr. Cadier concluded that appellant reached maximum medical improvement
approximately five years earlier based on the medical file and would not benefit from further
medical treatment or vocational rehabilitation.7
By decision dated May 30, 2012, OWCP denied authorization of appellant’s bilateral
elbow ulnar nerve revision, finding that the weight of the medical evidence did not establish that
such treatment was medically necessary.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States “shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of disability or aid in lessening the amount of monthly
compensation.”8 OWCP has the general objective of ensuring that an employee recovers from
7

Dr. Cadier’s March 1, 2012 work capacity evaluation form reiterated his opinion.

8

5 U.S.C. § 8103(a).

3

his or her injury to the fullest extent possible in the shortest amount of time. It therefore has
broad administrative discretion in choosing the means to achieve this goal. The only limitation
on OWCP’s authority is that of reasonableness.9 Abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment or actions taken which are
contrary to both logic and probable deductions from established facts. It is not enough to merely
show that the evidence could be construed so as to produce a contrary factual conclusion.10
While OWCP is obligated to pay for treatment of an employment-related injury, the
employee has the burden of proof to establish that the expenditure is incurred for treatment of the
effects of such injury. In order for a surgical procedure to be authorized, he or she must submit
evidence to show that the procedure is for an employment-related condition and that the surgery
is medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.11
If there is a conflict in medical opinion between the employee’s physician and the
physician making the examination for the United States, OWCP shall appoint a third physician,
known as a referee physician or impartial medical specialist, to make what is called a referee
examination.12 Where OWCP has referred appellant to a referee physician to resolve a conflict,
the referee’s opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.13
ANALYSIS
OWCP accepted that appellant sustained dorsal ganglion cyst of the left wrist, bilateral
carpal tunnel syndrome, left cubital tunnel syndrome and right deltoid strain while in the
performance of duty. Appellant subsequently underwent left ulnar nerve and cubital tunnel
release on June 16, 2004 and right ulnar nerve and cubital tunnel release on August 26, 2005. In
a March 22, 2012 request form, Dr. Ugwonali, appellant’s attending physician, recommended
right elbow ulnar nerve revision. On April 18, 2012 he noted that she also needed left elbow
ulnar nerve revision. In contrast, Dr. Alexander, the second opinion examiner, determined that
surgery was not medically necessary in view of the objective findings and her exaggerated
symptoms. After finding that, a conflict in medical opinion existed concerning whether the
proposed surgery should be approved, OWCP referred the case to Dr. Cadier for a referee
examination.
The Board finds that Dr. Cadier’s April 2, 2012 report is entitled to special weight
because his opinion was well rationalized and based on a proper factual and medical history. He
reviewed the February 14, 2012 statement of accepted facts and medical file and conducted a
9

R.L., Docket No. 08-855 (issued October 6, 2008); Daniel J. Perea, 42 ECAB 214, 221 (1990).

10

R.C., 58 ECAB 238, 241 (2006).

11

R.L., supra note 9.

12

See 5 U.S.C. § 8123(a); 20 C.F.R. § 10.321.

13

L.W., 59 ECAB 471 (2007); James P. Roberts, 31 ECAB 1010 (1980).

4

thorough physical examination. Dr. Cadier noted that the symptoms shown by appellant during
testing, including pain, weakness and tenderness, could not be reconciled with her apparent
functional capacity. In particular, he pointed out that she opened and closed the door to the
examination room and adjusting her body weight on the examination table without any difficulty,
each of which required a greater amount of force than what was exerted during the examination.
Dr. Cadier therefore concluded that appellant showed symptom magnification and did not exhibit
symptoms warranting surgery or further medical treatment. Consequently, the Board finds that
OWCP properly denied authorization of appellant’s bilateral elbow ulnar nerve revision.
Appellant contends on appeal that OWCP did not meet its burden of proof because
Dr. Alexander and Dr. Cadier’s reports were erroneous. As noted, it is the claimant who has the
burden of proof to establish that surgery is medically warranted for an employment-related
condition. The Board has already addressed the case record and determined that the weight of
the medical evidence does not support appellant’s claim. Appellant also submits new evidence
on appeal. The Board, however, lacks jurisdiction to review evidence for the first time on
appeal.14
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion when it denied authorization for
appellant’s bilateral elbow ulnar nerve revision.

14

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2012 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6