United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF THE NAVY, OFFICE OF
NAVAL PERSONNEL, Millington, TN,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1419
Issued: January 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 10, 2014 appellant, through her attorney, filed a timely appeal from a
January 16, 2014 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish bilateral upper arm
conditions causally related to factors of her employment.
FACTUAL HISTORY
On April 15, 2013 appellant, then a 47-year-old American sign language (ASL)
interpreter, filed an occupational disease claim alleging that she developed bilateral shoulder and
1

5 U.S.C. § 8101 et seq.

elbow conditions as a result of the way she held her shoulders and hands and the amount of
interpreting she did in the performance of duty. She first became aware of her conditions on
November 1, 2009 and realized it resulted from her employment on December 1, 2009. Ralph E.
Decker, appellant’s supervisor, noted that for the time period that appellant worked directly for
him he was unsure as to what nature of her work would have caused her illness.
The record reveals that appellant has a history of upper extremity problems. About 18
years ago she fractured her left ulnar and underwent surgery to move her extensor capri ulnaris
and a synthetic sheath was implanted. From April 2010 to January 2013, appellant underwent
various other surgeries to her upper extremities, including two right shoulder surgeries, left tarsal
tunnel and left wrist surgery, right tarsal tunnel, and elbow surgery, in addition to lower
extremity surgeries for right and left foot tarsal and plantar fasciitis.2 She was on and off duty
while recovering from her most recent surgery. In September 2012, appellant returned to light
duty. On January 29, 2013 she stopped work again and did not return.
In an undated letter, appellant reported that she was the sole interpreter for six deaf or
hard of hearing employees. She stated that in approximately November 2009 she began to
experience pain and fatigue going down her right shoulder and was unable to hold her arms up
for an extended period of time without experiencing severe discomfort. Appellant described the
medical treatment she received, which included steroid injections, physical therapy, and multiple
surgeries. She stated that her physician informed her that this type of injury was typically seen in
people who constantly have their arms at shoulder height or higher for extended periods of time.
Appellant believed that the employment-related activities that contributed to her condition were
the requirement to facilitate daily sign language communication for six deaf and hard of hearing
individuals in their work environment, logging and journaling her interpreting activities, and
other jobs as assigned by her supervisor. She noted that these activities were performed daily for
varying amounts of time from 30 minutes to 2 hours depending on the situation. Appellant
reported that she also worked part time as a trilingual video interpreter where she worked less
than 20 hours a week and had a 10-minute break every 50 minutes.
In a December 30, 2009 report, Dr. Christopher M. Pokabla, a Board-certified orthopedic
surgeon, noted appellant’s complaints of right shoulder pain and symptoms that began about a
year ago. He reported that she believed her work as a sign language interpreter contributed to
her symptoms. Dr. Pokabla reviewed appellant’s history and conducted an examination of her
right shoulder. He observed decreased internal rotation when compared to the contralateral side
and minor tenderness over the biceps tendon anteriorly. Strength testing was five out of five.
Neer’s test was positive indicating impingement. Dr. Pokabla diagnosed right shoulder rotator
cuff tendinitis/impingement. He noted that appellant had the “head forward type posture,” which
2

On April 7, 2010 appellant underwent right shoulder arthroscopic surgery with rotator cuff repair, subacromial
decompression, and distal clavicle excision. On December 17, 2010 she underwent left foot tarsal tunnel release and
left peroneal exploration, repair, and tenodesis. On October 17, 2011 appellant underwent left wrist decompression
with tenosynovectomy and dorsal stabilization. On January 3, 2012 she underwent right foot tarsal tunnel release
and endoscopic plantar fascia release. On June 21, 2012 appellant underwent another right shoulder arthroscopic
surgery with rotator cuff repair and revision. On July 13, 2012 she underwent right elbow lateral release. On
January 29, 2013 appellant underwent right elbow arthroscopy with synovectomy and debridement. On January 30,
2013 she underwent right shoulder arthroscopic surgery with biceps tenodesis.

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he opined was “due to the fact that she [was] doing a lot of interpreting and therefore [was]
having her posture pulled forward.” Dr. Pokabla recommended physical therapy two to three
times a week and advised them to work on rotator cuff strengthening and to get her head back.
In a January 27, 2010 report, Dr. Jay Dudley, Board-certified in family and preventative
medicine, stated that appellant was examined for follow-up of rotator cuff tendinitis and
impingement. Upon examination, he observed pain and about 4+/5 with supraspinatus isolation
testing. Strength testing of appellant’s supraspinatus had an interval worsening. O’Brien test
was grossly positive. Dr. Dudley diagnosed rotator cuff tendinitis and impingement. He
recommended a magnetic resonance imaging (MRI) scan to rule out a rotator cuff tear.
Dr. Pamela H. Burdett, a Board-certified diagnostic radiologist, reviewed the February 1,
2010 MRI scan of the right shoulder and noted thinning and fraying of the articular surface and
supraspinatus tendon. She also observed a small linear partial thickness articular surface tear at
the mid substance of the tendon. Dr. Burdett diagnosed moderate supraspinatus tendinopathy
with thinning and articular surface fraying and tiny linear partial-thickness articular surface tear,
mild-to-moderate infraspinatus tendinopathy without tear, mild acromioclavicular joint
arthropathy with moderate degenerative changes of the distal clavicle, and minimal subacromial
bursitis.
Appellant submitted various reports by Dr. John J. Lochemes, a Board-certified
orthopedic surgeon, dated September 14, 2010 to April 20, 2012, for treatment for her foot and
ankle conditions. Dr. Lochemes noted that she underwent several surgeries, including bilateral
cubital tunnel decompressions on the right side, three carpal tunnel releases on the right, two on
the left, and a tarsal tunnel release of the left foot.
Appellant continued to receive medical treatment from Dr. Pokabla for right shoulder
pain from February 3, 2010 to March 20, 2013. In a February 3, 2010 report, Dr. Pokabla related
her complaints of persistent right shoulder pain, rotator cuff tendinitis, and impingement and
noted that a February 1, 2010 MRI scan of the right shoulder revealed partial thickness rotator
cuff tear and impingement. In May 5 and 24, 2010 reports, he related that appellant’s right arm
and shoulder were sore due to using her arm to sign for deaf people. Dr. Pokabla also noted that
appellant felt a “pop” in her shoulder during physical therapy and that she experienced pain after
interpreting for one and one half hours. In January 24 and February 18, 2011 reports, he related
that appellant had undergone right shoulder rotator cuff repair surgery in April 2010 but still
complained of sharp, intermittent pain with certain movements and weakness. Dr. Pokabla
stated that they discussed the stresses her job as a sign language interpreter placed on her
shoulder. He reported that appellant worked up to “10 hours a day with her shoulder in an
elevated position.” Dr. Pokabla explained that her job-related activities were not giving her
shoulder any time to rest and put unusual strain on her shoulder. In an August 31, 2012 report,
he stated that “[appellant’s] occupation as a signer for the deaf certainly put her shoulder at
increased stress.” In an August 31, 2012 report, Dr. Pokabla noted that she continued to
complain of pain anterior in the left shoulder and diagnosed left shoulder rotator cuff syndrome.
In a September 21, 2012 report, Dr. Pokabla related appellant’s complaints of consistent
bilateral shoulder pain anteriorly and her concerns about disability with signing at work.
Examination revealed tenderness anteriorly around the area of the coracoid and the pec minor

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insertion. Dr. Pokabla advised appellant to return to light duty on September 24, 2012.
Appellant was limited to signing and interpreting for 5 to 10 minutes at a time with support
services as needed, frequent resting of the right upper extremity, and limited repetitive motions.
Dr. Pokabla diagnosed status post revision rotator cuff repair and continued anterior shoulder
pain. He indicated that appellant needed to work with restrictions as signing required her to keep
her arms elevated above her head for long periods of time. In an October 3, 2012 report,
Dr. Pokabla stated that she should continue working light duty.
In a March 20, 2013 report, Dr. Pokabla stated that appellant was postrevision rotator
cuff repair and was doing better. Examination revealed range of motion 150/35/buttock and no
evidence of a Popeye deformity. Strength was almost five out of five for supraspinatus with only
minimal substitution. Dr. Pokabla diagnosed status post revision rotator cuff repair and status
post biceps tenodesis.
Appellant also submitted various reports dated August 24, 2011 to March 6, 2013 by
Dr. Christian Fahey, a Board-certified orthopedic surgeon, for complaints of elbow pain. In
August 24 to September 19, 2011 reports, Dr. Fahey related that appellant was a right-hand
dominant sign language interpreter who had multiple operations on her upper extremities. He
noted her complaints that the pain and swelling in her wrist had progressively worsened.
Dr. Fahey provided examination findings and diagnosed hand and wrist tenosynovitis. In a
December 12, 2011 report, he noted that appellant had left wrist surgery about two months ago.
Dr. Fahey authorized her to return to full duty on December 23, 2011 and remain in a brace. In
reports dated June 13 to December 12, 2012, he noted appellant’s complaints of progressively
worsening pain of both hands and elbows. Upon examination, Dr. Fahey observed that appellant
was very tender on the epicondyle and had diffuse Tinel’s sign. He diagnosed bilateral lateral
epicondylitis. In a March 6, 2013 report, Dr. Fahey noted that appellant was examined for
postoperative follow-up of right elbow arthroscopy with synovectomy. Upon examination of her
elbow, he observed that appellant’s elbow was no longer swollen and she had full flexion,
pronation, and supination. Dr. Fahey reported that appellant was doing better.
In a May 24, 2012 right shoulder arthrogram and MRI scan, Dr. Robert A. Duke, a
Board-certified diagnostic radiologist, noted appellant’s history of right shoulder pain and
previous shoulder surgery.
He reported that arthrogram images showed satisfactory
opacification of the joint capsule and no extra-articular extravasation of contrast material.
Dr. Duke also stated that MRI scan images revealed a focal elongated defect in the greater
tuberosity consistent with a single bone anchor. He also noted a Type 1 acromion process.
Dr. Duke diagnosed status post rotator cuff repair with bone anchor within greater tuberosity as
noted and subacromial subdeltoid bursa effusion consistent with bursitis.
In a September 25, 2012 MRI scan of the right elbow, Dr. Donald D. Owens, a Boardcertified diagnostic radiologist, noted that appellant underwent elbow surgery in 2012. He
observed intact extensor tendon, ulnar, and radial collateral ligaments. No tendon abnormalities
or demonstrable mass was identified. Dr. Owens diagnosed postoperative change regional to the
site of origin of the common extensor tendon and otherwise negative MRI scan of the right
elbow.

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By letter dated April 17, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she respond to specific questions regarding
the employment-related activities that she believed contributed to her condition and to submit
medical evidence to establish that she sustained a diagnosed condition as a result of her duties as
an ASL interpreter. In a similar letter to the employing establishment, OWCP requested
additional information from a knowledgeable supervisor regarding the type of repetitive tasks
that appellant performed at work.
In various reports dated January 11 to May 28, 2013, Dr. Kenneth Weiss, a Boardcertified orthopedic surgeon, examined appellant for status post right shoulder arthroscopy with
arthroscopic biceps tenodesis and left subacromial injection and injection of her bicipital groove.
He related that she was moving her arm and felt a pop in the shoulder. In a March 28, 2013
report, Dr. Weiss related appellant’s complaints of continued left shoulder and some right
shoulder pain. Upon examination, he observed no signs or symptoms of infection from
appellant’s wounds. Dr. Weiss provided range of motion findings and noted 4/5 motor strength.
Supraspinatus stress and isolation tests were both negative. Dr. Weiss diagnosed status post right
shoulder arthroscopy with biceps tenodesis. He stated that, due to the fact that appellant signed
for a living, he did not think that she could return to such work at this point due to the repetitive
use of the arms. In a May 28, 2013 report, Dr. Weiss explained that he felt that what appellant
was doing with her “repetitive use and work at shoulder level [had] aggravated or at least
contributed to her shoulder condition that required surgery.” He stated that she was authorized to
return to light duty with restrictions of no overhead/repetitive use of the right upper extremity
and no pushing, pulling, or lifting greater than two pounds. Dr. Weiss hoped to allow appellant
to return to full duty in the next two to four months. He provided return to work notes dated
April 30 and May 28, 2013 with these restrictions.
In a May 8, 2013 statement, appellant related that in November 2009 she began to
experience pain and fatigue going down her right shoulder and was unable to hold her arm up for
the extended period of time needed to interpret without experiencing severe discomfort. She
described the medical treatment she received, which included a second right shoulder surgery in
June 2012 and elbow surgery in July 2012. Appellant reported that she was off work for three
months and returned to light duty with limited signing/interpreting. She alleged that Command
rarely adhered to her restrictions when she interpreted a function, which contributed to her need
for a third right shoulder surgery and a second right elbow surgery in January 2013. Appellant
explained that she was the sole sign language interpreter for the employing establishment with no
relief interpreter. She reported that she was required to interpret various classes such as job
training, evaluations, or Command sponsored events that may last up to six hours without relief.
Appellant noted that industry standard required two interpreters when interpreting continuously
for longer than 50 minutes.
In a May 16, 2013 e-mail, Mr. Diecker, a workforce development manager, stated that he
could neither confirm nor deny that appellant’s current medical conditions were a result of work
while assigned under his supervision. He stated that he was aware that she was accomplishing
sign language duties after normal hours and with another employer.
In a June 3, 2013 letter, Antoinette B. Brady, Director of the Equal Employment
Opportunity and Diversity Management Program (EEODM), stated that she did not have first-

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hand knowledge of appellant’s daily activities prior to her joining the EEODM staff in
December 2011. She reported that appellant’s tasks involved sign language interpretation and
keyboarding, which required repetitive shoulder, arm, hand, and wrist movements. Ms. Brady
noted that appellant performed these tasks daily for about eight hours, two days a week and
seven hours, three days a week. She explained that for sign language interpretation she advised
appellant to follow the professional standard, which included a break of at least 15 minutes for
each hour of interpretation and more frequent breaks when the material being interpreted was
highly technical. Ms. Brady also provided various performance appraisals and e-mails from
appellant regarding missing work for medical reasons.
In a decision dated June 19, 2013, OWCP denied appellant’s occupational disease claim.
It accepted that she worked as an ASL interpreter and was diagnosed with various shoulder and
elbow conditions but denied her claim finding insufficient medical evidence to establish that her
diagnosed conditions were causally related to factors of her employment.
By letter dated July 17, 2013 and received on July 23, 2013, appellant requested a review
of the written record. She contended that Drs. Pokabla and Weiss established a causal
relationship between her job and her injuries. Appellant stated that the position descriptions of
her interpreter positions demonstrated the physical demands of being a sole interpreter. She also
pointed out that she had to meet the requirements to maintain national certification for her job.
In a letter dated July 23, 2013, appellant withdrew her request for a review of the written record
and requested reconsideration.
In a July 5, 2013 report, Dr. Pokabla stated that he initially examined appellant on
December 30, 2009 and diagnosed rotator cuff tendinitis. He noted that at that time she worked
as a sign language interpreter, which involved a “significant amount of time with her shoulder in
a forward flexion position holding her arm approximately at shoulder height.” Dr. Pokabla
reviewed the medical treatment appellant received and noted that she underwent various
surgeries, injections, and physical therapy. He opined that appellant’s work as a sign language
interpreter “did have a causal relationship to the pathology for which she underwent treatment.”
Dr. Pokabla reported that the position description clearly stated that she was required to work
without breaks while interpreting for two to three hours at a time, also up to six hours with
infrequent breaks. He explained that “this considerable overhead work would certainly place
increased strain on the patient’s shoulders.”
Appellant provided a description of her position as an interpreter at the employing
establishment. The summary regarding the physical demands of her job stated that the work
“requires standing for long periods of time when interpreting (e.g., two to three hours) without
breaks and up to six hours with infrequent breaks.” Training-related work was described as
sedentary with no special physical demands required to perform the work. Appellant also
provided a position description of her part-time job as a video relay service interpreter. The
description stated that part-time employees worked up to 29 hours a week and that they
determined their own schedules. Employees had a 15-second break between calls and calls
varied in length from a few minutes to over an hour. Each employee may call for a team or pass
off a call after the first 10 minutes of a call in order to change their pace.

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Appellant also provided an article from the Registry of Interpreters for the Deaf regarding
how interpreters could prevent and care for repetitive strain injuries. The article noted that the
interpreters had a “high risk of developing some type of repetitive stress injury during their
career.” It further explained that because interpreters tended to hold their necks still while doing
active repetitive movements this static motion wore down the pads between their cervical
vertebrae which often led to compressed nerves, pain, stiffness, and numbness in their arms and
hands.
By decision dated August 7, 2013, OWCP denied modification of the June 19, 2013
denial decision.
By letter dated and received on November 25, 2013, appellant, through counsel,
requested reconsideration. Counsel alleged that appellant’s claim should be accepted based on
Dr. Pokabla’s medical reports or at the minimum, that there was sufficient evidence to require
additional medical development.
In a September 10, 2013 statement, appellant described the various functions of her sign
language interpreting duties for the employing establishment. She stated that she may spend 30
minutes to an entire day interpreting depending on the function and that she had no other
interpreter to relieve her. Appellant noted that even during her breaks she was often called to
different areas in order to interpret something for a deaf or hard of hearing employee. She
further stated that she also helped employees with personal or financial issues by interpreting for
them. Appellant reported that during the rehabilitation from her first rotator cuff surgery her
physician began to realize that it was the repetitive motion and the way she held her shoulders
when she interpreted for long amounts of time that caused her injuries. Regarding her part-time
job, she stated that each shift may consist of maybe four to five hours with a mandatory 10minute break every hour. Appellant noted that the physical demands of her part-time job were
nowhere as taxing as for the employing establishment.
In a November 15, 2013 letter, Dr. Pokabla stated that appellant was status post revision
rotator cuff repair and arthroscopic biceps tenodesis. He noted that he reviewed her statements
regarding both her federal and nonfederal jobs working as a sign language interpreter and
concluded, to a reasonable medical certainty, that her diagnosis was directly related to her work
duty as a federal sign language interpreter.
In a decision dated January 16, 2014, OWCP denied modification of the August 7, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

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related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
Appellant alleged that she developed bilateral elbow and shoulder conditions as a result
of the repetitive use of her arms at or above shoulder height in the performance of her duties as a
sign language interpreter. OWCP accepted that she worked as a sign language interpreter and
was diagnosed with shoulder and elbow conditions. It denied appellant’s claim finding
insufficient medical evidence to establish that her diagnosed upper extremity conditions were
causally related to her federal employment. The Board finds that this case is not in posture for
decision as to whether appellant’s bilateral upper extremity conditions resulted from factors of
her federal employment.
As previously noted, an employee who claims benefits under FECA has the burden of
establishing the essential elements of his or her claim.8 As part of this burden, the employee
must present rationalized medical opinion evidence, based upon a complete and accurate factual
and medical background, establishing causal relationship.9 However, it is well established that
proceedings under FECA are not adversarial in nature, and while the employee has the burden to
establish entitlement to compensation, OWCP shares responsibility in the development of the
evidence and to see that justice is done.10

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
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R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

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I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

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I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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Supra note 3.

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Supra note 7.

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Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

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In support of her claim, appellant submitted various reports by Dr. Pokabla for treatment
for right shoulder pain and symptoms beginning on December 30, 2009. He reviewed her
history and noted that she worked as a sign language interpreter. Upon examination of her right
shoulder, Dr. Pokabla observed decreased internal rotation when compared to the contralateral
side and minor tenderness over the biceps tendon anteriorly. Neer’s test was positive indicating
impingement. Dr. Pokabla diagnosed right shoulder rotator cuff tendinitis/impingement. In
May 5 and 24, 2010 reports, he related that appellant’s right arm and shoulder were sore due to
using her arm to sign for deaf people and that she complained of pain after interpreting for one
and one half hours. In an August 31, 2012 report, Dr. Pokabla opined that appellant’s
“occupation as a signer for the deaf certainly put her shoulder at increased stress.” In a July 5,
2013 report, he reviewed the medical treatment appellant received and noted that she underwent
various surgeries, injections, and physical therapy. Dr. Pokabla noted that appellant spent a
“significant amount of time with her shoulder in a forward flexion position holding her arm
approximately at shoulder height.” He opined that appellant’s work as a sign language
interpreter did have a causal relationship to the pathology for which she underwent treatment.”
In a November 15, 2013 report, Dr. Pokabla again concluded that after reviewing appellant’s
statements regarding both her federal and nonfederal jobs as a sign language interpreter,
appellant’s right shoulder rotator cuff and biceps tenodesis conditions were directly related to her
work as a federal sign language interpreter.
The Board finds that while Dr. Pokabla’s reports are not completely rationalized, they are
consistent in indicating that appellant sustained an employment-related injury, and are not
contradicted by any substantial medical or factual evidence of record. Dr. Pokabla accurately
described appellant’s medical history and work duties as a sign language interpreter. He
provided findings on examination and provided a medical diagnosis of a right shoulder
condition. Dr. Pokabla opined that appellant’s right shoulder condition resulted from the
repetitive duties of her federal employment. Although he did not provide a fully-rationalized
medical opinion on causal relationship, Dr. Pokabla provided a consistent opinion based on
examination findings and an accurate background that appellant’s bilateral shoulder conditions
were causally related to factors of her employment.11 Therefore, while Dr. Pokabla’s reports are
not sufficient to meet appellant’s burden of proof to establish her claim, they raise an
uncontroverted inference between appellant’s claimed condition and her federal employment,
and are sufficient to require OWCP to further develop the medical evidence and the case
record.12
OWCP found that Dr. Pokabla’s opinion on causal relationship was not well rationalized
because in the July 5, 2013 report he attributed appellant’s bilateral shoulder condition to
“overhead work.” It determined that Dr. Pokabla did not accurately describe appellant’s work
factors as neither appellant’s statements nor the description position mentioned “overhead work.”
OWCP concluded that Dr. Pokabla failed to properly explain any mechanism of injury for how
appellant’s interpreting duties resulted in her bilateral shoulder condition. The Board finds,
however, that this one discrepancy in the July 5, 2013 report is insufficient to disprove or
contradict Dr. Pokabla’s previous reports which accurately describe appellant’s employment
11

See D.G., Docket No. 14-901 (issued August 21, 2014).

12

Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).

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duties. In the December 30, 2009 report, he stated that appellant had “head forward type
posture” and attributed this condition to the fact that she worked as an interpreter which required
her to have her “posture pulled forward.” In January 24 and February 18, 2011 reports,
Dr. Pokabla noted that appellant worked up to “10 hours a day with her shoulder in an elevated
position.” He also explained in a September 21, 2012 report that appellant needed to work
limited duty with restrictions because signing required her to keep her arms elevated for long
periods of time. Furthermore, the record clearly demonstrates in the July 5, 2013 report that
Dr. Pokabla reviewed appellant’s position description which stated that interpreters were
required to interpret for two to three hours at a time without breaks and up to six hours with
infrequent breaks. The Board notes that Dr. Pokabla consistently described appellant’s sign
language interpreting duties, specifically that she remained in a forward flexed position with her
arms at shoulder height for a significant period of time, and that this description is supported by
appellant’s statements, the position description, and the article from the registry of interpreters
for the deaf.13 Dr. Pokabla also consistently opined that her interpreting duties caused or
contributed to her bilateral shoulder conditions. Although his reports may not be fullyrationalized, they are sufficient to require OWCP to further develop the medical evidence and the
case record.
The Board further finds that the additional medical reports of Dr. Weiss also support
appellant’s claim that she sustained a bilateral upper extremity condition as a result of her
employment. In various reports dated January 11 to May 28, 2013, he noted that appellant was
status post right shoulder arthroscopy with arthroscopic biceps tenodesis and left subacromial
injection and injection of her bicipital groove. In a March 28, 2013 report, Dr. Weiss provided
range of motion findings of appellant’s shoulders and noted 4/5 motor strength. Supraspinatus
stress and isolation tests were both negative. Dr. Weiss diagnosed status post right shoulder
arthroscopy with biceps tenodesis. He stated that, due to the fact that appellant signed for a
living, he did not think that she could return to that at this point due to the repetitive use of the
arms. In a May 28, 2013 report, Dr. Weiss explained that he felt that what appellant was doing
with her “repetitive use and work at shoulder level [had] aggravated or at least contributed to her
shoulder condition that required surgery.” He stated that she was authorized to return to light
duty with restrictions of no overhead/repetitive use of the right upper extremity and no pushing,
pulling, or lifting greater than 2 pounds. The Board finds that both Dr. Pokabla and Weiss’s
reports are consistent with appellant’s statements and the position description to indicate that
appellant’s repetitive arm duties at shoulder height for an extended period of time as a sign
language interpreter caused or contributed to appellant’s bilateral upper extremity condition.
On remand, OWCP should prepare a statement of accepted facts and refer appellant to an
appropriate medical specialist for a detailed opinion as to whether her bilateral upper extremity
conditions are causally related to factors of her employment. Following this and any other
further development as deemed necessary, it shall issue an appropriate merit decision on
appellant’s claim.

13

The Board notes that this article is not regarded as medical evidence and has no evidentiary value in
establishing a causal relationship between appellant’s upper extremity conditions and her federal employment. See
Gloria McPherson, 51 ECAB 441 (2000). It is only relevant to describe appellant’s job duties and the physical
stress attributed to the repetitive actions of sign language interpreters.

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CONCLUSION
The Board finds that this case is not in posture for decision and requires additional
development of the medical evidence by OWCP.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: January 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 14-708
Issued: January 2, 2015

Case Submitted on the Record

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

JURISDICTION
On February 10, 2014 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) merit decision dated August 14, 2013. 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 this case.
ISSUE
The issue is whether OWCP abused its discretion by appellant’s request for authorization
for surgery.
FACTUAL HISTORY
Appellant, a 44-year-old claims examiner, filed a Form CA-2 claim for benefits on
November 26, 2010 alleging that he developed a lower back condition causally related to

1

5 U.S.C. § 8101 et seq.

employment factors. OWCP accepted the claim for aggravation of lumbosacral degenerative disc
disease.
In a report dated August 12, 2011, Dr. Clement K. Jones, a specialist in orthopedic/spinal
surgery, stated that appellant underwent a comprehensive orthopedic spine surgery consultation on
July 27, 2011 with follow-up visits on August 3 and 10, 2011; the most recent visit was a
preoperative consultation in anticipation of his elective surgery scheduled for August 16, 2011.
Dr. Jones stated that appellant had a history of intermittent lower back pain for 12 years.
His chief complaint was lower back pain with radiation to bilateral thighs, worse on the left
buttock and thigh pain, fatigue in his legs, and occasional anterior right thigh electrical buzzing
sensations. Dr. Jones advised that appellant underwent a magnetic resonance imaging (MRI) scan
of the lumbar spine on July 20, 2011 which showed multiple levels of desiccation and disc space
narrowing involving L3-4, L4-5, and L5-S1. He also stated that appellant had undergone lumbar
spine x-rays on August 3, 2011 which supported the diagnosis. Bilateral lower extremity EMG
and nerve conduction studies performed on August 1, 2011 showed chronic radiculopathy
affecting bilateral L3-4 myotome and left L4-5 myotome. Dr. Jones stated that he did not prescribe
any other treatment because after multiple diagnostic tests, appellant agreed to undergo elective
surgery. Dr. Jones stated that appellant had worked for the past two and half years as a claims
examiner, a job which required prolonged sitting at a computer while managing paper claims. He
related that sitting was the primary work factor of his job, which aggravated his back condition.
Dr. Jones stated that appellant believed that sitting at his computer more than 95 percent of the
time aggravated his lower back.
Dr. Jones related that appellant had no prior radicular leg complaints or symptoms despite a
nearly 12-year history of intermittent lower back pain. He concluded that, based on appellant’s
history of progressive worsening symptoms over the prior six months, especially in the two weeks
preceding his July 27, 2011 evaluation, it was reasonable to determine that the act of prolonged
sitting at work has served as an aggravation of his underlying multilevel degenerative condition.
On August 16, 2011 Dr. Jones performed the surgery.
In an August 16, 2011 report, Dr. Jones stated that appellant had a 12-year history of
intermittent lower back pain and a six-month history of progressive worsening symptoms; and his
symptoms were especially worse in the two weeks prior to his being examined on July 27, 2011.
He related that on July 18, 2011 appellant had an acute onset of severe lower back pain while
riding the ferry to work from Marin County to San Francisco. Appellant returned home and was
seen in the clinic with pain in bilateral buttocks and legs.
On November 16, 2011 Dr. Jones requested authorization for the August 16, 2011 spinal
surgery.
In a March 20, 2012 report, Dr. Daniel D. Zimmerman, a Board-certified orthopedic
surgeon and an OWCP medical adviser, reviewed appellant’s medical history and the surgical
report and denied authorization for the August 16, 2011 surgery. He opined that Dr. Jones had
advised that prolonged sitting by appellant at his workplace had aggravated his lumbar disc
disease. Dr. Zimmerman stated that appellant related that he had never experienced radicular

2

symptoms prior to August 2011; he asserted, however, that an October 3, 2007 office note from a
medical clinic documented pain radiating down his spine into both legs. He stated:
“OWCP accepted the generic idea of ‘aggravation of lumbosacral degenerative disc
disease.’ This is L5 and no other level. OWCP did not accept aggravation of discal
changes at L3-4 and L4-5. It cannot, thus, authorize the two-level operative
procedure performed on August 16, 2011.”
In order to determine whether appellant’s surgery was causally related to an accepted
condition, OWCP referred appellant to Dr. Aubrey A. Swartz, a specialist in orthopedic surgery,
for a second opinion examination. In his report dated June 25, 2012, Dr. Swartz stated that he
reviewed the findings on examination, the statement of accepted facts and the medical history.
With regard to whether the August 16, 2011 surgery was necessitated by an accepted condition, he
stated that Dr. Jones did not offer any treatment other than counseling and simply waiting it out
over time. Dr. Swartz asserted that it would be reasonable for appellant to place himself under the
care of a pain management physician for his current problem. He advised that pain management
could include a combination of appropriate medications, special spinal injection procedures, and
possibly a spinal cord stimulator to address the bilateral radicular pain from arachnoiditis he
developed at the time of surgery affecting the L3 and/or L4 nerve roots.
In a July 25, 2012 report, Dr. Jones stated that appellant continued to experience chronic
intermittent lower back pain as well as persistent severe left lower extremity pain. He related that
overall appellant felt that his lower back pain had improved 50 percent. Appellant currently rated
the severity of his back condition as a 1 to 3 on a scale of 1 to 10. Dr. Jones opined that there was
a 90 percent apportionment due to his alleged July 18, 2011 work injury which occurred while he
was riding the ferry to work from Marin to San Francisco, and from repeated and prolonged sitting
at work as a claims examiner. He accorded the remaining apportionment to his preexisting history
of intermittent lower back pain for 12 years without prior complaints of radicular leg symptoms.
In a November 19, 2012 report, Dr. Swartz stated that the cause of the development of
appellant’s lumbar degenerative disc disease would be primarily genetic. He indicated that this
opinion was supported by recent research in the field; he stated, however, that there were
aggravating factors, however, that could accelerate or aggravate the process. These included
specific activities of an individual. Dr. Swartz noted that appellant had engaged in recreational
activities such as skiing, biking, hiking, and boogie boarding.
Dr. Swartz advised that the type of prolonged sitting required by appellant’s job as claims
examiner could indeed aggravate discogenic disease and place increased pressure on the lower
lumbar discs, and could serve to further aggravate the process of disc herniation, protrusion and/or
bulging; this was supported by the medical literature in the field which demonstrated that
prolonged sitting may cause more pressure on the disc unit than many other activities. He noted
that Dr. Jones’ assertion that appellant had not experienced radicular pain prior to the July 18, 2011
incident was contradicted by prior treatment records; i.e., the October 3, 2007 medical note from
Dakota Ridge Family Medicine which noted radiation to both legs and buttocks and diagnosed low
back pain with possible radicular symptoms. Dr. Swartz stated that the findings that preceded
appellant’s claim were present, and he opined that it is more likely than not that those radicular
complaints represented early radiculopathy referable to the multilevel degenerative disc disease
and the spinal stenosis that he experienced in his lumbar spine. He further advised that appellant’s
3

medical history suggested a predisposition to low back and lumbar spine problems and therefore
indicated that his degenerative disc problems were primarily genetic. Dr. Swartz stated:
“It is more likely than not that the sitting for the three to four years he was there at
that job would be a temporary aggravation and would not constitute a substantial
contributing portion of those factors that would have contributed to this condition.
The major factors would have been the intense recreational activities that he
enjoyed, also owning a construction company [and] the genetic influence in his
spine. The sitting would be more likely a temporary aggravation but would have
played a much smaller role than all of these vigorous activities in which he was
involved for several years. All of his physical activities, his work in the
construction industry and the genetic influence would constitute greater than 50
percent of his current problem and to a much greater degree than 51 percent. The
minority would be a temporary aggravation … (consisting of) the three years that
he spent at a job where he was required to sit at a desk.”
Dr. Swartz concluded that the need for surgery would be the natural progression of his disease, the
genetically-influenced disease, in addition to all of the vigorous activities in which he has
participated over the years, in addition to working in the construction industry as well; the sitting
would have played only a small part and was only a temporary aggravation of his lower back pain.
By decision dated January 10, 2013, OWCP denied authorization for surgery for left L3-4
and L4-5 hemilaminectomy with contralateral laminoplasties, excision of left paracentral and
central L4-5 sequestered extrusion, decompression of thecal sac with bilateral L3-4 and L4-5
foraminotomies.
By letter dated February 7, 2013, appellant requested an oral hearing, which was held on
May 30, 2013.
By decision dated August 14, 2013, OWCP affirmed the January 10, 2013 decision
denying authorization for appellant’s August 16, 2011 surgery. It found that Dr. Swartz
represented the weight of the medical evidence.
LEGAL PRECEDENT
Section 8103 of FECA2 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 OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.3 In interpreting this section of FECA, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA. OWCP has the general objective
of ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. It therefore has broad administrative discretion in choosing means to achieve
this goal. The only limitation on OWCP’s authority is that of reasonableness. Abuse of
2

Id.

3

Id. at § 8103.

4

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.4
ANALYSIS
In this case, OWCP accepted that appellant had sustained the condition of aggravation of
lumbosacral degenerative disc disease. Dr. Jones, appellant’s treating physician, recommended
that appellant undergo a left L3-4 and L4-5 hemilaminectomy with contralateral laminoplasties,
excision of left paracentral, and central L4-5 sequestered extrusion, decompression of thecal sac
with bilateral L3-4 and L4-5 foraminotomies procedure. He stated that appellant had worked for
the past two and half years as a claims examiner, a job which required prolonged sitting, the
primary work factor, which aggravated his back condition. Dr. Jones stated that appellant believed
that sitting at his computer more than 95 percent of the time aggravated his lower back. Dr. Jones
concluded that, based on his history of progressive worsening symptoms over the prior six months,
especially in the two weeks preceding his July 27, 2011 evaluation, it was reasonable to conclude
that the act of prolonged sitting at work had aggravated his underlying multilevel degenerative
condition. Dr. Jones therefore requested authorization for surgery, which he performed on
August 16, 2011.
As noted above, the only restriction on OWCP’s authority to authorize medical treatment
is one of reasonableness. In his May 20, 2012 report, OWCP’s medical adviser, Dr. Zimmerman,
recommended that OWCP deny authorization for the requested surgery. He stated that OWCP had
only accepted the generic idea of aggravation of lumbosacral degenerative disc disease, which
occurred only at the L5 level. As OWCP did not accept aggravation of disc changes at L3-4 and
L4-5, he opined that OWCP should not authorize the two-level operative procedure performed on
August 16, 2011. The case was referred to Dr. Swartz, the second opinion examiner, who opined
in his November 19, 2012 report that the primary need for surgery was not due to the accepted
condition of aggravation of lumbosacral degenerative disc disease, but to the natural progression of
his disease; this was a genetically-influenced disease, exacerbated by all of the vigorous activities
in which he engaged over the years, including numerous recreational activities and owning a
construction industry. Dr. Swartz asserted that the prolonged sitting required by his job as a claims
examiner would have played only a small part in the development of the disease and was only a
temporary aggravation of his lower back pain. He further advised that Dr. Jones’ assertion that
appellant did not experience radicular pain prior to the July 18, 2011 incident was contradicted by
the October 3, 2007 medical note which noted radiation to both legs and buttocks and diagnosed
low back pain with possible radicular symptoms. Dr. Swartz stated that these findings of radicular
complaints which preceded appellant’s claim represented early radiculopathy referable to the
multilevel degenerative disease and the spinal stenosis that he experienced in his lumbar spine.
This medical history suggested a predisposition to low back and lumbar spine problems which
strongly suggested that appellant’s degenerative disc problems were primarily genetic. Based on
the referral opinion of Dr. Swartz, OWCP denied authorization for the requested surgery in its
January 10, 2013 decision. An OWCP hearing representative affirmed this decision on
August 14, 2013.
4

Daniel J. Perea, 42 ECAB 214 (1990).

5

As noted above, the only restriction on OWCP’s authority to authorize medical treatment
is one of reasonableness. Dr. Swartz’s opinion constituted sufficient medical rationale to support
OWCP’s January 10, 2013 decision. He stated unequivocally, based on a thorough review of the
medical evidence, that the August 16, 2011 surgical procedure was not appropriate or necessary for
appellant’s accepted condition and that his lower back symptoms were mostly attributable to the
natural progression of degenerative disc problems which were primarily genetic, not work related.
Dr. Swartz’s report is sufficiently probative, rationalized, and based upon a proper factual
background. The Board finds that OWCP did not abuse its discretion by relying on the opinion
of Dr. Swartz as the weight of evidence to deny approval for the elective spinal surgery.
CONCLUSION
The Board finds that OWCP did not abuse its discretion to deny appellant authorization
for elective surgery.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.5
Issued: January 2, 2015
Washington, DC

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

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

5

Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective December 27, 2014.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1300
Issued: October 17, 2017

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 May 25, 2017 appellant filed a timely appeal from an April 14, 2017 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 this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral carpal
tunnel syndrome and bilateral basal joint arthritis causally related to accepted factors of her
federal employment.
FACTUAL HISTORY
On April 4, 2016 appellant, then a 49-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that on or before July 13, 2015 repetitive hand
1

5 U.S.C. § 8101 et seq.

motions in casing and delivering mail during six years at the employing establishment caused
bilateral carpal tunnel syndrome. She described carrying trays of mail and pushing bins of
parcels. Appellant alleged that delivering her route required opening and closing 125 key
keepers, 272 door knobs, 156 mailboxes, and 110 curbside boxes, as well as setting and releasing
her parking brake 65 times a day. She did not stop work at the time of her claim. In support of
her claim, appellant submitted a March 25, 2016 report from a physician assistant.
In an April 27, 2016 letter, OWCP notified appellant of the additional evidence needed to
establish her claim, including a report from her attending physician explaining how and why the
alleged factors of her federal employment would cause bilateral carpal tunnel syndrome. It
explained that physician assistants were not considered physicians under FECA. OWCP
afforded appellant 30 days to submit such evidence.
In response, appellant submitted April 28, 2016 electromyography and nerve conduction
velocity studies by Dr. David K. Kaufman, an attending Board-certified neurologist,
demonstrating moderate carpal tunnel syndrome on the right and borderline carpal tunnel
syndrome on the left. Dr. Kaufman noted that the bilateral carpal tunnel syndrome was
unchanged since August 18, 2006 electrodiagnostic studies.
Dr. Jon J. Cherney, an attending Board-certified orthopedic surgeon and hand surgeon,
provided a May 4, 2016 report relating appellant’s account of “pinching a key and opening key
locks 650 times a day, and repetitive pinching and grasping while sorting and delivering mail.
He diagnosed bilateral carpal tunnel syndrome, right greater than left, and bilateral basal joint
primary arthritis of both thumbs. Dr. Cherney opined that “[g]iven [appellant’s] history of
constant, full time, high force pinch, grasp, and rotation of the hand, these are work-related
problems. The osteoarthritis is accelerated beyond a normal progression by repetitive pinch.”
He noted work restrictions.
In a May 5, 2016 report, Dr. Brad Wozney, a Board-certified family practitioner, noted
treating appellant beginning on March 9, 2016 for bilateral hand and wrist pain. He related her
account of rotating her right hand and wrist approximately 500 times a day. Dr. Wozney opined
that “repetitive motion of sorting mail, which puts appellant’s wrist in recurrent flexion and
extension, is a major risk factor for carpal tunnel syndrome.” He explained that her work duties
were “most likely the underlying cause of her carpal tunnel syndrome. At minimum, it is the
greatest aggravating factor to her condition.” Dr. Wozney recommended bilateral carpal tunnel
release. He prescribed wrist splints and medication.
Appellant also submitted a May 4, 2016 letter from a physician assistant.
By decision dated May 27, 2016, OWCP denied the claim, finding that, although
appellant had established that the described work factors occurred as alleged, the medical
evidence of record contained insufficient medical rationale explaining how and why those factors
would cause or aggravate bilateral carpal tunnel syndrome.
On July 27, 2016 appellant requested reconsideration. In support of her request, she
submitted a June 30, 2016 letter from Dr. Cherney, opining that repetitive, high-force pinching
accelerated her bilateral basilar joint arthritis beyond a normal progression. Dr. Cherney

2

explained that appellant’s bilateral carpal tunnel syndrome was also caused by repetitive, highforce pinching, grasping, and awkward wrist positioning. He administered a right basal joint
injection on July 25, 2016.
Appellant also provided reports from a nurse practitioner.
By decision dated September 20, 2016, OWCP denied modification, finding that the
additional evidence submitted on reconsideration did not contain sufficient medical rationale to
establish causal relationship between the accepted work factors and bilateral carpal tunnel
syndrome. It found that Dr. Cherney’s opinion was not based on an accurate medical history as
he failed to mention that appellant was diagnosed with bilateral carpal tunnel syndrome in
August 2006. Therefore, Dr. Cherney’s opinion that her bilateral carpal tunnel syndrome was
due to repetitive pinching and grasping at work was of little probative weight. OWCP further
found that the nurse practitioner notes were of no probative value as nurse practitioners are not
considered physicians under FECA.
In a letter received on November 28, 2016, appellant requested reconsideration. She
provided her October 28, 2016 statement, noting that she began part-time work at the employing
establishment in 1996. Following 10 years of employment with the employing establishment,
appellant was diagnosed with bilateral carpal tunnel syndrome in 2006. She began full-time
work at the employing establishment in September 2010. Dr. Cherney then diagnosed bilateral
basal joint arthritis in addition to bilateral carpal tunnel syndrome. Appellant attributed her
carpal tunnel syndrome and basilar joint arthritis to “pinching keys and turning over 650 times
per day.” She provided a nonofficial job description from a lay advocate’s website.
The employing establishment responded to appellant’s request for reconsideration by
September 18, 2016 letter, contending that, while she delivered mail to 650 apartment mailboxes,
she used a key to open a “large cluster box door” which automatically opened the individual
mailboxes. Appellant did not unlock them individually as she asserted in her descriptions to her
physicians and accompanying her claim form. The employing establishment provided her
official position description
Appellant submitted additional medical evidence. In a November 17, 2016 report,
Dr. Cherney noted that August 22, 2006 electrodiagnostic studies demonstrated significant
bilateral carpal tunnel syndrome, with denervation in both hands. As this testing predated
appellant’s full-time employment as a letter carrier, Dr. Cherney did not believe, within a
reasonable degree of medical certainty, that he could relate her carpal tunnel syndrome to her
federal employment. He opined that repetitive, high-force pinching contributed materially to
development of bilateral basal joint arthritis.
By decision dated April 14, 2017, OWCP denied modification, finding that Dr. Cherney’s
November 17, 2016 report contained insufficient medical reasoning to establish that the accepted
work factors caused or aggravated the claimed conditions.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.5 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
Appellant alleged that she sustained bilateral carpal tunnel syndrome and bilateral basal
joint arthritis due to repetitive pinching and grasping at work on or before July 13, 2015. OWCP
accepted the implicated employment factors, but denied the claim as the medical evidence of
record was insufficient to establish causal relationship.

2

Id.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

20 C.F.R. § 10.5(q).

6

Solomon Polen, 51 ECAB 341 (2000).

4

In support of her claim, appellant provided reports from Dr. Cherney, an attending Boardcertified orthopedic surgeon and hand surgeon. Dr. Cherney initially opined that repetitive, highforce pinching, grasping, and awkward wrist positioning at work caused bilateral carpal tunnel
syndrome and bilateral basal joint arthritis. On November 17, 2016 he changed his opinion,
explaining that because appellant was first diagnosed with bilateral carpal tunnel syndrome on
August 18, 2006, prior to her full-time federal employment, he could no longer relate the
condition to the accepted work factors. Dr. Cherney’s opinion therefore negates causal
relationship between pinching and grasping at work and bilateral carpal tunnel syndrome. While
he commented that those tasks contributed materially to the development of bilateral basal joint
arthritis, he did not explain how and why the accepted work factors would cause or contribute to
the claimed arthritis. In the absence of a clear presentation of the pathophysiologic basis for
supporting a causal connection between appellant’s duties and the claimed basal joint arthritis,
Dr. Cherney’s opinion is insufficient to meet her burden of proof.7
Dr. Wozney, a Board-certified family practitioner, opined on May 5, 2016 that repetitive
wrist flexion and extension while sorting mail was the “greatest aggravating factor” and “most
likely the underlying cause” of appellant’s carpal tunnel syndrome. However, he did not set
forth his medical reasoning as to how those motions would cause or aggravate carpal tunnel
syndrome. The lack of rationale greatly reduces the probative value of his opinion.8
Appellant also provided evidence from a nurse practitioner and a physician assistant.
Nurse practitioners9 and physician assistants10 are not considered physicians under FECA, and
their opinions are therefore of no probative medical value. These reports are therefore
insufficient to meet appellant’s burden of proof to establish causal relationship.
As appellant failed to submit sufficient rationalized medical evidence setting forth the
pathophysiologic mechanisms by which the accepted work factors would cause or aggravate
bilateral carpal tunnel syndrome or bilateral basal joint arthritis, OWCP’s April 14, 2017
decision denying the claim was proper under the facts and circumstances of this case.
Appellant may submit additional 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained bilateral carpal tunnel syndrome and bilateral basal joint arthritis causally related to
accepted factors of her federal employment.

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

Id.

9

See 5 U.S.C. § 8101(2); D.C., Docket No. 16-1457 (issued May 18, 2017).

10

Allen C. Hundley, 53 ECAB 551 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2017 is affirmed.
Issued: October 17, 2017
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
__________________________________________
W.W., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Atlantic City, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
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)
)
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)
)
)

Docket No. 11-977
Issued: October 25, 2011

Case Submitted on the Record

ORDER AFFIRMING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 9, 2011 appellant, through his representative, filed a timely appeal from the
December 13, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which affirmed his schedule award.1
The Board has duly considered the matter and will affirm OWCP’s December 13, 2010
decision. Appellant’s representative expresses no disagreement with the schedule award per se.
Rather, counsel argues only that OWCP delayed its adjudication of appellant’s schedule award
claim until the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2009) became applicable on May 1, 2009, which deprived him of due
process rights regarding a determination under the fifth edition. He argues that a protected
property interest cannot be deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254
(1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). These cases held only that a claimant
who was in receipt of benefits (in Goldberg welfare benefits and in Mathews social security
benefits) could not have those benefits terminated without procedural due process.
1

On August 20, 2002 appellant, a 47-year-old supervisory general engineer, injured his upper back in the
performance of duty when he picked up a computer box and felt a snap or pop and a shock run down his arm. He
also complained of pain in his chest. OWCP accepted his claim for cervical sprain and authorized an anterior
cervical discectomy at C5-6 and C6-7. On May 25, 2010 OWCP issued a schedule award for an 18 percent
impairment of his left upper extremity.

In this case, appellant simply made a claim for a schedule award. He was not in receipt
of schedule award benefits nor was OWCP attempting to terminate benefits. Appellant had no
vested right to a schedule award under the fifth edition of the A.M.A., Guides.
In Harry D. Butler,2 the Board noted that Congress delegated authority to the Director of
OWCP regarding the specific methods by which permanent impairment is to be rated. Pursuant
to this authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants, and the Board has concurred in the adoption.3 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.4 The applicable date of the sixth
edition refers to when a schedule award decision is reached, not to the date of maximum medical
improvement or when the schedule award claim was filed. Accordingly,
IT IS HEREBY ORDERED THAT the June 9, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

43 ECAB 859 (1992).

3

Id. at 866.

4

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

2


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
H.T., Appellant
)
)
and
)
)
DEPARTMENT OF DEFENSE, DECA-WEST
)
REGION, McCLELLAN AIR FORCE BASE,
)
CA, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1854
Issued: May 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 24, 2008 appellant filed a timely appeal from the April 22, 2008 decision of an
Office of Workers’ Compensation Programs’ hearing representative, who affirmed a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award decision.
ISSUE
The issue is whether appellant has more than 10 percent permanent impairment of her left
upper extremity for which she received a schedule award.
FACTUAL HISTORY
On March 6, 2006 appellant, then a 59-year-old store worker, filed a traumatic injury
claim alleging that, on February 22, 2006, she moved heavy cases of flavored water and
sustained an injury to her left hand, wrist and shoulder. On April 27, 2006 the Office accepted
her claim for sprain/strain of the left wrist and aggravation of left carpal tunnel syndrome (CTS).

It authorized left carpal tunnel surgery, which appellant underwent on September 18, 2006.
Appellant received compensation benefits and subsequently claimed a schedule award.1
In a September 11, 2007 report, Dr. Robert D. Power, an occupational medicine
specialist, reviewed appellant’s history and utilized the American Medical Association, Guides
to the Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A., Guides). On examination,
appellant complained of tenderness in the palm, tingling and numbness in the first four digits of
the left hand and weakness. Dr. Power advised that, while appellant could perform activities of
daily living, she could not do any activities that required repetitive or strenuous use of the left
arm. He reviewed diagnostic studies including an x-ray of the left wrist which revealed
degenerative changes of the lateral midcarpal row and an April 27, 2006 electromyogram (EMG)
revealed moderately severe left carpal tunnel syndrome with acute denervation. Dr. Power noted
that appellant had a “hint of thenar atrophy,” a well-healed postsurgical scar from her carpal
tunnel release and tenderness in the palm with diminished sensation on two-point and SemmesWeinstein testing on the ulnar and radial side of the first three digits and the radial side of the
ring finger. He stated that appellant had constant slight tingling/numbness in the left hand first
four digits, constant tenderness at the base of the palm and pain that increased to moderate with
grasping. Dr. Power referred to Table 16-102 and determined that appellant had a Grade 4
sensory deficit in the distribution of the median nerve which represented a 25 percent sensory
deficit. He referred to Table 16-113 and determined that appellant had no motor deficit.
Dr. Power referred to Table 16-154 which provides a maximum impairment of 39 percent median
nerve impairment below the elbow. He multiplied the 25 percent deficit grade by 39 percent to
total 9.7 percent, which he rounded to 10 percent impairment of the left arm.5 Dr. Power
converted this to six percent whole person impairment. He added that appellant had “pillar pain”
which was “out of the ordinary for carpal tunnel syndrome.” Dr. Power referred to Chapter 18 at
page 573 of the A.M.A., Guides to rate an additional one percent impairment for pain and
tenderness in the palm. He added the one percent for pain and the six percent whole person
impairment to find a total seven percent whole person impairment. Dr. Power noted work
restrictions and opined that appellant reached maximum medical improvement on
September 11, 2007.
In a December 14, 2007 report, an Office medical adviser reviewed the medical evidence.
He utilized the A.M.A., Guides and to find that appellant had a 10 percent impairment of the left
arm. The Office medical adviser reviewed appellant’s history and findings on examination
which included residual complaints of some numbness and tingling in the left hand and wrist.
He advised that Dr. Power’s examination revealed a satisfactory range of motion with
1

The record reflects that appellant also has a right carpal tunnel syndrome condition, which was accepted by the
Office on January 14, 2008. The Office hearing representative instructed it to combine the claims under case
OWCP File No. xxxxxx707. Appellant underwent right hand carpal tunnel surgery on March 2, 2007.
2

A.M.A., Guides 482.

3

Id. at 484.

4

Id. at 492

5

Represented.

2

diminished sensation in the median nerve distribution, without motor weakness. The Office
medical adviser agreed that under Table 16-10 appellant had a Grade 4 sensory deficit for
decreased sensation which was forgotten with activity. Under Table 16-15 maximum of 39
percent impairment was allowed for the median nerve for loss of sensory function. Therefore,
appellant had 10 percent impairment of the left arm. The Office medical adviser also advised
that appellant was not entitled to an additional 1 percent impairment to the whole person for
residual “pillar” pain under the Chapter 18 because the 10 percent impairment rating under
Chapter 16 took into consideration appellant’s pain in both the hand and wrist following her
carpal tunnel surgery release. He opined that appellant had no more than 10 percent impairment
of her left arm.
In a letter dated March 14, 2008, appellant’s representative provided additional
information, which included a completed Form CA-7 dated March 13, 2008 and a copy of
Dr. Power’s September 11, 2007 report.
On April 22, 2008 the Office granted appellant a schedule award for 10 percent
impairment of the left upper extremity. The award covered a period of 31.20 weeks from
April 13 to November 17, 2008.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act6 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.7 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.8 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.9
ANALYSIS
In support of her claim for a schedule award, appellant submitted a September 11, 2007
report from Dr. Power, who determined that she sustained a seven percent impairment of the
whole person. The Board notes, however, that the Act does not provide for schedule awards
based on whole person impairment.10

6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8107.

8

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

9

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

10

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither the Act nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).

3

Office procedures provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.11 Regarding carpal tunnel syndrome, the A.M.A., Guides
provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present -(1) [p]ositive clinical findings of median nerve dysfunction and
electrical conduction delay(s): the impairment due to residual CTS
[computerized tomography scan] is rated according to the sensory
and/or motor deficits as described earlier.
(2) [n]ormal sensibility and opposition strength with abnormal
sensory and/or motor latencies or abnormal EMG
[electromyogram] testing of the thenar muscles: a residual CTS is
still present and an impairment rating not to exceed five percent of
the upper extremity may be justified.
(3) [n]ormal sensibility (two-point discrimination and SemmesWeinstein monofilament testing), opposition strength and nerve
conduction studies: there is no objective basis for an impairment
rating.”12
Dr. Power and the Office medical adviser were in agreement with regard to appellant’s
10 percent impairment of the left upper extremity for sensory deficit in the median nerve
distribution consistent with the first scenario, as noted, for rating impairment due to carpal tunnel
syndrome. In calculating 10 percent impairment for sensory deficit or pain, both physicians
referred to Table 16-10 page 482 of the A.M.A., Guides. Dr. Power found that appellant
qualified for Grade 4 which provides for a maximum 25 percent sensory deficit. The physicians
utilized Table 16-15 which provides for a 39 percent maximum sensory impairment for median
nerve below the elbow.13 Both of the physicians multiplied the 25 percent sensory deficit by the
39 percent maximum for median nerve sensory impairment. This totaled 9.75 percent
impairment which was rounded to 10 percent.14 Dr. Power advised that appellant sustained only
a sensory loss for pain and had no motor deficit.
11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003). See A.M.A., Guides 482, 484, 492; Joseph Lawrence, Jr., 53 ECAB 331 (2002).
12

A.M.A., Guides 495.

13

Id. at 492, Table 16-15. Although the Office medical adviser indicated 30 percent, it appears to be a
typographical error as the table reveals that the actual value is 39 percent for sensory deficit or pain.
14

See J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008) (the Office’s policy is to round the
calculated percentage of impairment to the nearest whole number).

4

Dr. Power advised that appellant had complaints of pillar pain in the palm that it was “out
of the ordinary for carpal tunnel syndrome. He concluded that she was entitled to an additional
one percent whole person impairment for pain pursuant to page 573 of the A.M.A., Guides.
However, according to section 18.3(b) of the A.M.A., Guides, “examiners should not use this
chapter to rate pain-related impairments for any condition that can be adequately rated on the
basis of the body and organ impairment systems given in other chapters of the
A.M.A., Guides.”15 Office procedures provide that Chapter 18 is not to be used in combination
with other methods to measure impairment due to sensory pain (Chapters 13, 16 and 17).16
Dr. Power did not adequately to explain why any additional pain related impairment was proper.
The Board notes that the 10 percent impairment rating for sensory deficit under Chapter 16 took
into account appellant’s upper extremity pain of the median nerve below the forearm. The
Office medical adviser found no basis for rating additional impairment. He properly noted that
the 10 percent impairment for sensory deficit took into account appellant’s residual pain
following her carpal tunnel release. The Board finds that Dr. Power did not provide sufficient
rationale to support additional impairment for pain under Chapter 18.
On appeal, appellant asserted that the schedule award was based on erroneous application
of the A.M.A., Guides, the wrong doctor’s reports and misinformation. However, she has not
supported her allegations with probative evidence. There is no other medical evidence, in
conformance with the A.M.A., Guides, establishing that appellant has more than 10 percent
impairment of the left upper extremity.
CONCLUSION
The Board finds that appellant does not have more than a 10 percent impairment of her
left upper extremity.

15

Section 18.3b, page 571, A.M.A., Guides (5th edition, 2001).

16

See supra note 12; FECA Bulletin 01-05 (issued January 31, 2001): Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 22, 2008 is hereby affirmed.
Issued: May 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., widow of R.H., Appellant

and
DEPARTMENT OF ENERGY, MOUND
PLANT, Miamisburg, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0978
Issued: August 29, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 4, 2017 appellant, through counsel, filed a timely appeal from a November 2,
2016 merit decision and a February 21, 2017 nonmerit 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.

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for a hearing
before an OWCP hearing representative; and (2) whether appellant established that the
employee’s death was causally related to factors of his federal employment.
FACTUAL HISTORY
Appellant, widow of the deceased employee, filed a claim for death benefits on
August 19, 2016.3 The claim alleged that exposure to hazardous material while in federal
employment contributed to the employee’s death. The employee had worked from January 22,
1984 to March 31, 1996 at the employing establishment’s facility in Miamisburg, Ohio as a
health and safety inspector. The employee died on August 16, 2013.
An autopsy report dated August 19, 2013 indicated that the employee’s final clinical
diagnoses included malignant mesothelioma, pneumonia, status post left pneumectomy, a history
of asbestos expose, a history of plutonium exposure, fluid overload, and seizures. The death
certificate indicated that the cause of death was malignant mesothelioma.
By decision dated November 2, 2016, OWCP denied appellant’s claim as untimely filed.
It found that the claim had been filed more than three years after the employee’s death on
August 16, 2013.
On November 8, 2016 appellant, through counsel, requested a telephonic hearing before a
hearing representative of OWCP’s Branch of Hearings and Review.
By decision dated February 21, 2017, OWCP’s Branch of Hearings and Review denied
appellant’s request for a hearing. The decision found that 5 U.S.C. § 8124 applied to injuries
after July 4, 1966, and “[s]ince the injury under consideration in the present case occurred on
March 31, 1996, the day of [the employee’s] last day in federal employment, you are not, as a
matter of right, entitled to an oral hearing nor a review of the written record on this claim.” The
Branch of Hearings and Review held that it had exercised its discretion and further denied the
hearing request as appellant could equally well request reconsideration.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8124(b)(1) provides in pertinent part:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this title 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.”4

3

The claim was dated August 4, 2016.

4

5 U.S.C. § 8124(b)(1).

2

As section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting a
hearing, a claimant is not entitled to a hearing as a matter of right unless the request is made
within the requisite 30 days.5
ANALYSIS -- ISSUE 1
OWCP’s merit decision was dated November 2, 2016. Counsel filed a hearing request on
November 8, 2016. Since the hearing request was filed within 30 days of the November 2, 2016
OWCP decision, appellant was entitled to a hearing as a matter of right.
The February 21, 2017 OWCP decision referred to section 8124 as applying to injuries
after July 4, 1966,6 and then erroneously found that it therefore did not apply to the current
claim. The claim in this case is for death benefits, and the employee’s death occurred on
August 16, 2013,7 but even if the date of the employee’s last exposure in federal employment,
March 31, 1996, was used as a date of injury, this was clearly after July 4, 1966.8
Since appellant filed a timely hearing request, she is entitled to a hearing pursuant to
5 U.S.C. § 8124(b)(1). The case will be remanded for a hearing before an OWCP hearing
representative. The Board will not address the merits of the November 2, 2016 OWCP decision
on this appeal.9
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for a hearing.

5

See William F. Osborne, 46 ECAB 198 (1994).

6

5 U.S.C. § 8124 was enacted as part of the 1966 amendments to FECA, and was applicable to injuries occurring
after July 4, 1966, the date of enactment. See David M. Spencer, 24 ECAB 251 (1973).
7

In Nellie V. Vanoy (Martin D. Vanoy), 32 ECAB 1924 (1981), the Board used the date of death as the applicable
date of injury under 5 U.S.C. § 8124, finding that there was no hearing as a matter of right because the employee’s
death occurred in 1950.
8

The February 21, 2017 decision may have erroneously read July 4, 1966 as July 4, 1996.

9

When a claimant is entitled to a hearing before an OWCP hearing representative, the Board will not address the
underlying merit decision. The merits are subject to further adjudication pursuant to the hearing before an OWCP
hearing representative, and therefore are not in posture for review by the Board. See Gary W. Cooper, Docket No.
97-0518 (issued March 5, 1999); see also 20 C.F.R. § 501.2(c)(2) (the Board will not review interlocutory matters
during the pendency of a case).

3

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of
Workers’ Compensation Programs is reversed. The November 2, 2016 decision is set aside and
the case remanded for further action consistent with this decision of the Board.
Issued: August 29, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4