United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
New York, NY, Employer
__________________________________________

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

Docket No. 12-1051
Issued: September 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 19, 2012 appellant filed a timely appeal of a January 25, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
an occupational disease in the performance of duty due to her job duties.
FACTUAL HISTORY
On November 24, 2010 appellant, then a 45-year-old claims examiner, filed an
occupational disease claim alleging that she developed cervical strain with radiculopathy, carpal
1

5 U.S.C. § 8101 et seq.

tunnel syndrome and aggravation of migraines due to her employment. She attributed her
conditions to the repetitive and continuous action of twisting, stretching and bending her neck to
look at the computer monitor and using a standard telephone. Appellant first became aware of
her condition on July 1, 2010 and first attributed the conditions to her employment on
July 22, 2010.
In a letter dated November 30, 2010, OWCP requested additional information from
appellant including factual and medical support of her claim. It allowed 30 days for a response.
Dr. Philip Baird, Board-certified in family practice, completed a note dated June 10, 2009 and
stated that appellant had a history of frequent severe migraine headaches and needed an antiglare screen for her computer as the light on the screen was a trigger for her migraines.
Dr. Robert Schiller, a Board-certified family practitioner, completed a note dated August 12,
2010 and diagnosed depression, anxiety and severe migraines due to work stress. He diagnosed
carpal tunnel syndrome and cervical radiculopathy. Dr. Schiller noted that appellant’s conditions
of carpal tunnel syndrome and cervical radiculopathy made it difficult to sit in front of a
computer for long stretches of time. He recommended a leave of absence. In an undated note,
Dr. Schiller stated that appellant was diagnosed with cervical strain due to constant repetitive
action and overuse in her daily work activities using a computer. He stated that her cervical
strain aggravated her migraine condition causing her to lose time from work.
Appellant completed a narrative statement on December 16, 2010 and stated that during
her workday she was exposed to an ergonomically incorrect computer workstation. She noted
that her workday included only computer usage. Appellant stated that she was required to use
the computer while answering the telephone and that she held the telephone in the crook of her
neck while typing a response. She stated that due to the high number of calls received she
developed neck pain or cervical strain. Appellant stated that the cervical strain triggered her
migraines. She stated that there were frequent staff shortages which resulted in increased work.
Appellant stated that she worked through lunch. She stated that in the beginning of 2010 her
pain and numbness increased and that by July 2010 she developed numbness, dizziness and pain
shooting up and down her right side.
Dr. Steven Levine, a Board-certified family practitioner, completed a report on
August 12, 2010 and indicated that appellant could not spend her entire workday in front of the
computer due to her migraines, carpal tunnel and cervical radiculopathy. He also indicated that
appellant had a stress condition of depression and anxiety with insomnia and could not work on
deadlines.
Appellant underwent an electromyography (EMG) on June 30, 2010 which demonstrated
right median nerve entrapment at the wrist and right cervical radiculopathy.
By decision dated March 18, 2011, OWCP denied appellant’s claim on the grounds that
she had not established a causal relationship between her diagnosed condition and her implicated
employment duties. Appellant requested a review of the written record on March 28, 2011.
By decision dated January 25, 2012, OWCP’s hearing representative reviewed the
medical evidence and found that appellant had not submitted the necessary medical opinion

2

evidence to establish that her diagnosed conditions were caused or aggravated by her
employment.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 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) a 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 evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
ANALYSIS
Appellant has attributed her conditions of migraines, cervical radiculopathy and carpal
tunnel syndrome due to requirements and conditions of her employment. Specifically she stated
that her job required her to utilize a computer for the entire workday as well as typing while
answering the telephone. Appellant described the glaring fluorescent lights and her method of
holding the telephone while typing. She stated that she was required to work through lunch. The
Board finds that appellant has provided a statement of the work duties to which she attributes her
conditions. Appellant has also provided medical evidence of diagnosed conditions including
depression, anxiety, severe migraines, carpal tunnel syndrome and cervical radiculopathy.
However, she has not provided the necessary medical opinion evidence to establish a causal
relationship between her diagnosed conditions and her implicated employment factors.4
Dr. Baird completed a note on June 10, 2009 and stated that appellant’s migraines were
triggered by the light of her computer screen. He recommended an anti-glare screen. Appellant
has attributed her migraines to her cervical radiculopathy caused by moving her neck while
operating a computer and using the telephone simultaneously. She has not described glare from
her computer as causing or contributing to her conditions. This report, without a rationalized
report as to how the light of the computer screen could cause migraines, is insufficient to meet
2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

While appellant has submitted medical evidence of diagnosed emotional conditions, she did not include any
such conditions on her claim or in her narrative statement. As she has not claimed an emotional condition and
OWCP has not issued a final decision addressing this issue, the Board has no jurisdiction to consider this aspect of
appellant’s diagnosed conditions on appeal. 20 C.F.R. § 501.3.

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appellant’s burden of proof in establishing that her migraines were caused or contributed to by
her employment.
In a report dated August 12, 2010, Dr. Schiller diagnosed depression, anxiety and severe
migraines, carpal tunnel syndrome and cervical radiculopathy. He stated that these conditions
were exacerbated by stress associated with appellant’s work duties. Dr. Schiller stated that it
was difficult for appellant to sit in front of a computer due to her cervical radiculopathy and
carpal tunnel syndrome. The Board finds that this report is not sufficient to meet appellant’s
burden of proof to establish a condition caused or contributed to by her employment. While
Dr. Schiller mentioned that appellant’s cervical radiculopathy and carpal tunnel syndrome made
it difficult to perform her job duties of working on a computer, he did not explain how the job
duties would cause or contribute to cervical radiculopathy or carpal tunnel syndrome. Without a
clear medical opinion that appellant’s implicated work factors caused or contributed to her
diagnosed conditions, this report does not establish a causal relationship between her conditions
and her employment and is not sufficient to meet her burden of proof.
In his undated report, Dr. Schiller stated that appellant’s cervical strain was due to
constant repetitive action and overuse in her daily work activities in front of a computer. He
further stated that her cervical strain aggravated her migraine condition causing her to lose time
from work. While Dr. Schiller offered an opinion that appellant developed cervical strain and
aggravated her migraines due to her implicated employment duties, he did not provide any
medical reasoning explaining how or why the work duties resulted in cervical strain or how her
diagnosed cervical strain aggravated her migraines. Without medical rationale explaining how
and why appellant’s employment activities resulted in the diagnosed condition and aggravation,
this report is not sufficient to meet her burden of proof.
The Board finds that appellant has not provided the necessary medical opinion evidence
with a proper history of injury describing the implicated employment duties, providing a
diagnosis and explaining how her employment duties caused or contributed to her diagnosed
conditions. Without clear and detailed medical evidence appellant has not established a causal
relationship between her employment and her work and has not established her claim.
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.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to meet her burden of proof in establishing an occupational disease claim.

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ORDER
IT IS HEREBY ORDERED THAT the January 25, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, JUANITA CRAFT
POST OFFICE, DALLAS, TX, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0245
Issued: November 30, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On December 14, 2020 appellant, through counsel, filed a timely appeal from a
November 16, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 The Clerk of the Appellate Boards assigned Docket No. 21-0245.
On July 2, 2016 appellant, then a 47-year-old city carrier associate, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured the ball of his foot when he stepped on a
rock or crack walking while in the performance of duty. On December 6, 2017 OWCP accepted
this claim for bilateral hallux valgus, bilateral foot sprains, and plantar f ascial fibromatosis.

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

The case record also contains a n August 4, 2020 merit decision of OWCP. As counsel did not appeal from that
decision, it is not presently before the Board. See 20 C.F.R. § 501.3.

On May 4, 2018 appellant filed a schedule award claim (Form CA-7). By decision dated
March 26, 2020, OWCP granted him a schedule award for two percent permanent impairment of
each of his lower extremities. On March 31, 2020 appellant, through counsel, requested an oral
hearing before a representative of OWCP’s Branch of Hearings and Review. By decision dated
August 4, 2020, OWCP’s hearing representative affirmed the March 26, 2020 schedule award
decision.
On September 15, 2020 appellant, through counsel, requested reconsideration of the
August 4, 2020 decision. Appellant submitted a September 4, 2020 report from Dr. Neil Allen, a
Board-certified in internal medicine and neurology, finding that appellant had 11 percent
permanent impairment of each of his lower extremities based on loss of range of motion 3 under
the standards of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).
By decision dated November 16, 2020, OWCP denied appellant’s request for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).
The Board has duly considered the matter and finds that this case is not in posture for
decision. As noted, by decision dated March 26, 2020, OWCP granted appellant a schedule award
for two percent permanent impairment of each lower extremity. Subsequently, appellant submitted
a September 4, 2020 report from Dr. Allen who determined that appellant had 11 percent
permanent impairment of each lower extremity under the standards of the sixth edition of the
A.M.A., Guides. By decision dated November 16, 2020, OWCP denied appellant’s claim without
reviewing the merits, finding that he failed to provide relevant and pertinent new evidence.
The Board has held that a claimant 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 conditions resulting in permanent impairment or increased impairment.4
When a claimant has requested reconsideration and has submitted evidence of permanent
impairment or increased permanent impairment, then he or she will be entitled to a merit decision
on the issue. 5
In the present case, appellant submitted a September 4, 2020 report from Dr. Allen
following OWCP’s March 26, 2020 schedule award decision. This report contained an impairment
rating that referenced the A.M.A., Guides. As noted above, where a claimant has requested
reconsideration, and has submitted evidence of increased permanent impairment, then he or she
will be entitled to a merit decision on the issue. 6 The case will therefore be remanded to OWCP
3

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

4

E.S., Docket No. 20-0656 (issued February 5, 2021); J.D., Docket No. 19-0019 (July 26, 2019); R.D., Docket No.
18-0579 (issued September 14, 2018); E.G., Docket No. 17-1710 (issued January 4, 2018); G.E., Docket No. 17-0594
(issued September 14, 2017); D.S., Docket No. 17-0407 (issued May 24, 2017).
5

C.W., Docket No. 18-1110 (issued December 28, 2018).

6

Id.

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to adjudicate this matter as a request for an increased schedule award. Following this and such
other development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim
for an increased schedule award.
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: November 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 07-2214
Issued: February 6, 2008

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 August 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 8, 2007 merit decision concerning his entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of his
right leg, for which he received a schedule award.
FACTUAL HISTORY
The Office accepted that on May 26, 2004 appellant, then a 50-year-old mail carrier,
sustained a partial tear of his right knee medial meniscus due to stepping off an 18- to 24-inch
curb while delivering mail. On June 24, 2004 Dr. James S. Keene, an attending Board-certified
orthopedic surgeon, indicated that diagnostic testing showed that appellant had a partial tear of
his right medial meniscus. Dr. Keene stated that appellant’s right lateral meniscus was intact.

On February 7, 2005 Dr. Keene performed a partial medial meniscectomy on appellant’s
right knee. The procedure was authorized by the Office. On April 12, 2005 Dr. Keene stated
that examination of appellant’s right knee showed that his surgical incisions were well healed
and his skin demonstrated no erythema or effusion. Appellant’s right knee showed no effusion
or swelling, no joint line tenderness was present and his distal neurovascular examination was
normal. Dr. Keene stated: “The patient was given five percent permanent disability for his right
knee medial meniscectomy.”
On June 13, 2005 appellant filed a claim for a schedule award due to his accepted
employment injury. On February 24, 2006 Dr. Keene indicated that appellant had permanent
impairment of his right leg due to his partial medial meniscectomy, but he did not provide an
impairment rating. He determined that appellant reached maximum medical improvement on
June 1, 2005.1
On June 12, 2006 Dr. David H. Garelick, a Board-certified orthopedic surgeon who
served as an Office medical adviser, reviewed the medical evidence of record. He indicated that
appellant did not exhibit any sensory or range of motion deficits in his right knee. Dr. Garelick
determined that under Table 17-33 on page 546 of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001) appellant had a two
percent permanent impairment of his right leg due to his partial medial meniscectomy.
The Office accepted that on March 28, 2007 appellant sustained another partial tear of his
right medial meniscus due to stepping off a porch step while delivering mail.2 The Office
combined the files for appellant’s May 26, 2004 and March 28, 2007 injuries.
On May 2, 2007 Dr. Keene performed a partial medial meniscectomy on appellant’s right
knee.3 The procedure was authorized by the Office. On June 6, 2007 appellant filed a claim for
a schedule award. On June 14, 2007 Dr. Keene indicated that appellant did not have any
permanent impairment of his right knee due to sensory loss, limitation of motion, ankylosis,
muscle weakness or atrophy.4 He concluded that appellant had a five percent permanent
disability due to his partial medial meniscectomy. Dr. Keene determined that appellant reached
maximum medical improvement on June 14, 2007.

1

Dr. Keene indicated that appellant had 150 degrees of flexion and 0 degrees of flexion in his right knee.

2

On April 13, 2007 Dr. Kirkland Davis, an attending Board-certified orthopedic surgeon, stated that magnetic
resonance imaging scan testing obtained the day before showed a partial tear of appellant’s right medial meniscus
with an intact lateral meniscus.
3

Dr. Keene also debrided appellant’s right medial and lateral femoral condyles. He noted that appellant’s right
lateral meniscus was normal.
4

Dr. Keene indicated that appellant complained of occasional right knee pain, inability to kneel and some
difficulty with steps. He noted that appellant had 130 degrees of flexion and 0 degrees of extension. In another
June 14, 2007 report, Dr. Keene indicated that examination of appellant’s right knee revealed a well-healed scar
with no effusion or joint line tenderness. Appellant had 125 degrees of flexion and 0 degrees of extension and was
intact from and neurologic and vascular standpoint. Dr. Keene stated that appellant had a five percent permanent
disability.

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On July 2, 2007 Dr. Garelick reviewed the medical evidence of record and discussed the
findings of Dr. Keene. He determined that under Table 17-33 on page 546 of the A.M.A.,
Guides appellant had a two percent permanent impairment of his right leg due to his partial
medial meniscectomy.
On August 8, 2007 the Office granted appellant a schedule award for a two percent
permanent impairment of his right leg. The award ran for 5.76 weeks from June 14 to
July 24, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 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.7
ANALYSIS
The Office accepted that on May 26, 2004 appellant sustained a partial tear of his right
medial meniscus due to stepping off an 18- to 24-inch curb while delivering mail. On
February 7, 2005 Dr. Keene, an attending Board-certified orthopedic surgeon, performed a
partial medial meniscectomy on appellant’s right knee. The Office accepted that on March 28,
2007 appellant sustained another partial tear of his right medial meniscus due to stepping off a
porch step while delivering mail. On May 2, 2007 Dr. Keene performed a partial medial
meniscectomy on appellant’s right knee. In an August 8, 2007 award of compensation, the
Office granted appellant a schedule award for a two percent permanent impairment of his right
leg.
The Board finds that the Office properly relied on the opinion of Dr. Garelick, a Boardcertified orthopedic surgeon who served as an Office medical adviser, in determining that
appellant had a two percent permanent impairment of his right leg. On July 2, 2007 Dr. Garelick
properly determined that under Table 17-33 on page 546 of the A.M.A., Guides appellant had a
two percent permanent impairment of his right leg due to his May 2, 2007 partial medial
meniscectomy.8 There is no indication in the record that appellant’s right knee condition would
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

See A.M.A., Guides 546, Tables 17-33. The fact that appellant also underwent a right partial medial
meniscectomy on February 7, 2005 would not entitle him to a higher impairment rating under the relevant standards
of the A.M.A., Guides. See id.

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warrant additional impairment ratings for muscles weakness, limited motion or sensory loss
related to peripheral nerves.9
On June 14, 2007 Dr. Keene indicated that appellant had a five percent permanent
disability due to his partial medial meniscectomy. However, a five percent impairment rating for
appellant’s right leg is not supported by Table 17-33 or any other portion of the A.M.A., Guides.
The opinion of Dr. Keene is of diminished probative value in that he failed to provide an
explanation of how his assessment of permanent impairment was derived in accordance with the
standards adopted by the Office and approved by the Board as appropriate for evaluating
schedule losses.10
As the report of Dr. Garelick provided the only evaluation which conformed with the
A.M.A., Guides, it constitutes the weight of the medical evidence.11 Therefore, the Office
properly granted appellant a schedule award for a two percent permanent impairment of his right
leg.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a two percent permanent impairment of his right leg, for which he received a schedule
award.

9

See A.M.A., Guides at 532, 537, 552, Tables 17-8, 17-10 and 17-32. Although appellant complained of some
right knee pain and other deficits, Dr. Keene reported normal examination findings with respect to sensation,
strength and motion. Even if strength and motion impairments were found under the relevant standards they could
not be combined with a diagnosis-based impairment such as that derived from the performance of a partial medial
meniscectomy. See id. at 526, Table 17-2.
10

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).
11

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 8, 2007 decision is affirmed.
Issued: February 6, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, MITCHELL POST
OFFICE, Mitchell, SD, Employer
__________________________________________

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Appearances:
Larissa Ann Parde, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0908
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 26, 2021 appellant, through his representative, filed a timely appeal from a
March 24, 2021 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.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right hip condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 11, 2018 appellant, then a 57-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained right hip osteoarthritis as a result of factors
of his federal employment including standing, walking, lifting, twisting, and turning. He noted
that he first became aware of his claimed condition and that it was cause d or aggravated by his
federal employment on May 9, 2018. Appellant did not stop work.
In a development letter dated July 17, 2018, OWCP advised appellant of the deficiencies
of the claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and afforded him 30 days for the submission of additional evidence.
An x-ray of appellant’s right hip obtained on May 9, 2018 demonstrated advancement of
severe degenerative joint disease with bone-on-bone acetabular osteophytes.
In a note dated June 18, 2018, Dr. Chris Krouse, an osteopath Board-certified in orthopedic
surgery, diagnosed severe degenerative change of the right hip. He recommended a total hip
arthroplasty. Dr. Krouse noted that appellant had a long-standing history of extensive use of the
right hip as a result of his federal employment, including factors such as ambulation, lifting of mail
tubs, pushing/pulling, and bending/twisting. He opined within a reasonable degree of certainty
that appellant’s right hip degenerative change was beyond a reasonable doubt directly related to
appellant’s occupation and 35 years of federal service.
By decision dated October 9, 2018, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a causal relationship between the diagnosed
conditions and factors of his federal employment.
OWCP continued to receive medical evidence. In a report dated September 5, 2013,
Dr. John Swisher, an osteopath Board-certified in sports medicine, examined appellant for
complaints of right hip and leg pain. He diagnosed right low back pain with right lower extremity
pain resembling potential radiculopathy, right lateral hip pain, either secondary to radiculopathy
or trochanteric syndrome, right proximal hamstring pain consistent with probable tendinosis,
intermittent right knee pain with evidence of degenerative joint disease , and right groin/deep
gluteal pain with femoral acetabular impingement. In a report dated September 25, 2013,
Dr. Swisher diagnosed localized osteoarthritis of the pelvis, lumbosacral spondylosis, and
trochanteric bursitis.
An x-ray of appellant’s right hip obtained on September 5, 2013 demonstrated moderate
narrowing involving the superior hip joint space with osteophytes off the superior and inferior
aspects of the acetabulum and inferior aspect of the femoral head. A magnetic resonance imaging
scan of the hip and pelvis obtained on September 6, 2013 demonstrated degenerative changes

2

including flattening of the inferior articular surface of the femoral head, osteophyte formation, and
moderate narrowing medially.
On April 11, 2014 appellant underwent right hip arthroscopic labral repair, arthroscopic
acetabuloplasty and arthroscopic femoral neck osteochondroplasty.
In a report dated September 17, 2014, Dr. Swisher examined appellant for complaints of
progressively more painful right hip. He diagnosed right greater trochanteric syndrome and
administered an injection.
In a report dated February 8, 2016, Dr. Krouse examined appellant for complaints of right
hip pain. He diagnosed right hip pain, likely bursitis versus degenerative change. Dr. Krouse
administrated an injection.
On July 20, 2016 Dr. Krouse examined appellant for right hip and left knee pain. On
physical examination of the right hip, he observed a positive grind test. Dr. Krouse diagnosed left
knee and right hip degenerative joint disease. He administered an injection.
Dr. Krouse reported on May 9, 2018 that he had examined appellant for severe right hip
pain, interfering with walking and sleeping. On physical examination, he observed a severely
antalgic gait with positive grind testing and minimal internal/external rotation. Dr. Krouse
diagnosed bone-on-bone degenerative joint disease of the right hip and recommended right hip
arthroplasty.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and opined that, after reviewing appellant’s work duties, his diagnosis was beyond a
reasonable doubt directly related to appellant’s occupation of over 35 years. He explained that the
amount of ambulation and positional changes appellant performed were the direct cause of
aggravation and acceleration of cartilage wear of the right hip, leading to advanced osteoarthritis
necessitating total hip arthroplasty.
OWCP received a note from Dr. Krouse dated July 5, 2018, which was substantially similar
to his note of June 18, 2018.
In a letter dated January 16, 2019, Dr. Krouse diagnosed degenerative joint disease. He
noted that appellant’s overall degenerative decline, based on physical examination and
radiographic findings, continued to progress despite conservative treatment. Dr. Krouse reviewed
appellant’s employment duties and opined that they had contributed to acceleration of appellant’s
degenerative joint disease.
On June 7, 2019 appellant requested reconsideration of the October 9, 2018 decision.
By decision dated August 27, 2019, OWCP denied modification.
In a letter dated January 29, 2020, Dr. Krouse stated that he had reviewed all medical
documentation and agreed with his previous narrative.
On March 10, 2020 appellant requested reconsideration.

3

By decision dated May 5, 2020, OWCP denied modification.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and his medical findings on examination. Dr. Krouse further explained
that working for 39 years and averaging many miles of walking in various terrains with repetitive
movement, up and down stairs, on uneven ground, in and out of mail trucks, twisting, and changing
directions would contribute to appellant’s osteoarthritis findings. He opined within a reasonable
medical certainty that appellant’s repetitive walking and duties of appellant’s federal employment
over the past 39 years was a contributing factor to his medical findings of hip osteoarthritis.
Dr. Krouse further opined that appellant’s work duties had aggravated his diagnosed appellant’s
osteoarthritis, that it was beyond a reasonable double that years of repetitive movement and
excessive loading/movements were well beyond a normal course of natural aging to the joints. He
opined that it was his medical judgment that this process was a contributing factor to acceleration
of hip osteoarthritis.
On December 29, 2020 appellant requested reconsideration.
By decision dated March 24, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 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 timely filed with in the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or co ndition for which

3

Id.

4

C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).

4

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 6 The opinion of the physician must be based on a complete factual
and medical background, 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. 7
ANALYSIS
The Board finds that this case is not in posture for decision.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and after reviewing appellant’s work duties, opined that his diagnosis was directly related
to appellant’s occupation of over 35 years. He explained that the amount of ambulation and
positional changes were the direct cause of aggravation and acceleration of cartilage wear of the
right hip, leading to advanced osteoarthritis necessitating total hip arthroplasty.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and medical findings on examination. Dr. Krouse further explained
that appellant’s work for 39 years, averaging many miles of walking in various terrains with
repetitive movement, up and down stairs, on uneven ground, in and out of m ail trucks, twisting,
and changing directions would contribute to appellant’s osteoarthritis findings. He further opined
that appellant’s work duties had aggravated his diagnosed his osteoarthritis, as years of repetitive
movement and excessive loading/movements were well beyond a normal course of natural aging
to the joints. Dr. Krouse opined that it was his medical judgment that this process was a
contributing factor to acceleration of hip osteoarthritis.
The Board finds that, taken together, Dr. Krouse’s reports are sufficient to require further
development of the medical evidence. Dr. Krouse provided a comprehensive understanding of the

5

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
6

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
7

D.J., Docket No. 19-1301 (issued January 29, 2020).

5

medical record and case history. He provided explanation as to how appellant’s work duties
resulted in his diagnosed right hip condition.
The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical. 8 Dr. Krouse’s reports, while insufficient to meet appellant’s burden of proof
to establish his claim, raise an uncontroverted inference between his diagnosed right hip condition
and the accepted factors of appellant’s federal employment. Accordingly, his medical opinion is
sufficiently to require further development of appellant’s claim.9
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10 OWCP has an obligation to see that justice is
done.11
On remand, OWCP shall refer appellant to a physician in the appropriate field of medicine,
along with the case record and a statement of accepted facts, for an examination and a rationalized
medical opinion as to whether the accepted employment factors either caused or aggravated h is
diagnosed right hip conditions. 12 If the second opinion physician disagrees with the opinion of
Dr. Krouse, he or she must provide a fully-rationalized explanation explaining why the accepted
employment factors were insufficient to have caused or aggravated appellant’s right hip condition.
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

B.H., Docket No. 20-0734 (issued November 13, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases
cited therein.
9

D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
10

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
11

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, Panama City, FL,
Employer
__________________________________________

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Appearances:
Robert E. O’Dell, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0159
Issued: October 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2014 appellant, through his representative, filed a timely appeal from a
May 1, 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.2

1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from May 1, 2014, the date of OWCP’s last merit decision, was
October 28, 2014. Since using October 31, 2014, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is October 23, 2014, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f) (1).

ISSUE
The issue is whether appellant met his burden of proof to establish hearing loss in the
performance of duty.
FACTUAL HISTORY
On January 18, 2013 appellant, then a 62-year-old engineering technician, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a
result of noise exposure from his federal employment. He reported that he worked in high level
noise environments and often had no hearing protection. Appellant stated that his 2012
audiogram revealed severe hearing loss when compared to his baseline testing done in 2006.
Appellant reported that he began working at Ingall’s Shipbuilding from 1969 to 1980
where hearing protection was not provided. He began his federal employment with the U.S.
Navy Supervisor of Shipbuilding in 1984. From 1984 to 2003, hearing protection was not
readily available. Appellant stated that exposure to shipbuilding noise was constant and included
chipping, grinding, hammer blows against steel, fan motors, horns, alarms, and other noises. He
reported that he was exposed to hazardous levels of noise for four to eight hours a day, five days
a week.
Appellant reported that he had hunted using a .22 caliber rifle from childhood until about
20 years ago. Approximately three years ago, he began target shooting recreationally,
approximately 10 to 20 rounds every couple of months. Appellant stated that he always wore ear
plugs as well as industrial hearing protection ear muffs when shooting. He noted that he first
began to experience hearing problems in 2000 when he was having trouble hearing conversations
and was experiencing buzzing in his ears.
In support of his claim, appellant submitted a November 14, 2012 audiogram which
revealed the following decibel (dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 10, 15, 25,
and 55 for the right ear and 20, 25, 55, and 65 for the left ear. His November 28, 2006 reference
audiogram revealed the following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 10, 10, 15, and
50 for the right ear and 20, 10, 35, and 65 for the left ear. In a November 15, 2012 audiology
report, Alan Gregg Moore, an occupational audiologist, diagnosed sensorineural bilateral hearing
loss likely due to a combination of years of occupational noise exposure, inadequately protected
exposure to gunfire, and presbycusis.
In an unsigned employing establishment worksheet, appellant’s supervisor reported that
appellant’s federal employment spanned from 1984 to the present and until recently, hearing
protection was not always required or provided. He stated that appellant continued to be exposed
to hazardous noise daily in his employment.
By letter dated February 4, 2013, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history and all nonoccupational exposure to noise, as well
as when he first related his hearing loss to conditions of employment. OWCP also requested that
he provide medical documentation pertaining to any prior treatment he received for ear or

2

hearing problems. It requested that the employing establishment provide noise survey reports for
each site where appellant worked, the sources and period of noise exposure for each location,
and copies of all medical examinations pertaining to hearing or ear problems.
In a February 25, 2013 narrative statement, appellant responded to OWCP questionnaire
and provided details pertaining to the types of noise to which he was exposed while working at
shipyards from 1969 to the present, noting the following dates of employment: 1969 to 1980
Ingall’s Shipbuilding; 1980 to 1983 Hudson Shipbuilding; 1984 to present U.S. Navy Supervisor
of Shipbuilding. He reported no prior workers’ compensation claims for hearing loss or an ear
condition.
In support of his claim, appellant submitted audiograms and hearing conservation data
dated September 16, 1987 to November 14, 2012. He argued that his progressive loss of hearing
was first discovered in his November 20, 2002 audiogram when compared to the September 16,
1987 reference baseline audiogram. Appellant stated that his November 28, 2006 audiogram
became his baseline audiogram for testing done on August 11, 2011 and November 14, 2012
which revealed a progressive threshold shift in both ears. In a November 28, 2006 audiology
report, Christon J. Duhon, an audiologist, diagnosed tinnitus and noise-induced hearing loss,
noting that appellant was exposed to high levels of environmental noise. He also noted a noise
exposure history since 17 years of age, most of which was from working in naval shipyards.
In a February 4, 2013 statement, Scott D. Buettner, appellant’s supervisor stated that
appellant worked at the U.S. Navy Supervisor of Shipbuilding from 1984 to the present and that
his personal work statement and history supported his claim. He stated that appellant was
exposed to noise from diesel engines, gas turbines, various machinery, hammers, peening of
steel, and other high-frequency noise which included 400 Hz electronic equipment. Dr. Buettner
stated that the only noise survey available was dated June 18, 2012. A copy of the June 18, 2012
industrial hygiene survey report was provided.
In a March 22, 2013 statement of accepted facts (SOAF), OWCP provided a summary of
appellant’s nonfederal employment, noting that he worked at Ingall’s Shipbuilding from 1969 to
1979, and Hudson Shipbuilding from 1980 to 1983, and that his federal employment with the
U.S. Navy spanned from 1984 to the present. The SOAF described the sources of federal noise
exposure, which included 400 Hz electronic equipment, and noted that noise source dB levels
ranged from 88 and higher dB. Appellant’s hobbies included occasional hunting, from
childhood until about 20 years ago, using a .22 caliber rifle, and target shooting with ear plugs
and industrial ear muff protection.
OWCP referred appellant, the SOAF, and the case record to Dr. John S. Keebler, a
Board-certified otolaryngologist, for a second opinion evaluation on April 16, 2013.
Audiometric testing performed that same date revealed the following dB losses at 500, 1,000,
2,000, and 3,000 Hz: 15, 15, 30, and 55 for the right ear and 15, 15, 50, and 70 for the left ear.
Dr. Keebler reported that appellant hunted in past years and would shoot guns occasionally.
When comparing the 1987 audiogram to the 2013 audiogram, he reported that appellant’s present
audiometric findings were worse bilaterally. Dr. Keebler diagnosed bilateral sensorineural
hearing loss which he opined was not due to employment-related noise exposure. He stated that
appellant’s sensorineural hearing loss was in excess of what would normally be predicated on the

3

basis of presbycusis in the left ear only. When asked if the workplace noise exposure was
sufficient as to intensity and duration to have caused the loss in question, Dr. Keebler replied that
it could have been but because only the left ear had changed enough for noise-induced hearing
loss, the hearing loss was most likely caused by gun blast noise rather than industrial noise since
industrial noise would harm both ears equally.
On May 8, 2013 OWCP routed Dr. Keebler’s report to its district medical adviser (DMA)
for an opinion pertaining to a schedule award. The DMA stated that Dr. Keebler opined that
appellant’s sensorineural hearing loss was not due to federal noise exposure. Dr. Keebler noted
that since 1987 hearing loss greater than presbycusis was present in the left ear only and that this
unilateral change was likely due to shooting guns rather than industrial noise exposure which
would have injured both ears. The DMA noted that in view of Dr. Keebler’s findings, a schedule
award determination was not appropriate in this case.
OWCP denied appellant’s claim by decision dated May 10, 2013 as the medical evidence
did not support that his hearing loss was causally related to workplace noise exposure.
On May 30, 2013 appellant, through counsel, requested an oral hearing before the Branch
of Hearings and Review.
In a March 15, 2014 report, Marianne Towell, an audiologist, reported that appellant’s
1987 audiogram revealed bilateral hearing loss, worse in left ear, but not classically
asymmetrical according to FDA standards. She stated that hearing thresholds had consistently
worsened in the left and right ear from 1987 to 2013. Ms. Towell opined that a substantial
portion of appellant’s hearing loss was due to the shipyard noise exposure from 1984 to the
present, especially given that his supervisor stated that appellant was exposed up to 100 dB noise
exposure levels. She disagreed with Dr. Keebler’s findings and noted that from 1987 to 2013,
appellant’s right ear had worsened greater than the left. Ms. Towell further stated that, while a
right-handed shooter should have greater hearing decrease in the left ear, this is not substantiated
by hearing decreases in test results from 1987 to 2013. She stated that there were multiple
reasons which could cause one ear to be worse than the other in an industrial noise-exposed
worker. Specifically, Ms. Towell provided examples stating that orientation to noise source can
cause greater hearing damage to one ear than the other where, because of the head shadow effect,
equal damage can only be expected to occur if the noise source is directly in front of or directly
behind the worker. She further stated that ear canal size, improper use of ear protection, and
excessive ear hair and ear wax could all contribute to asymmetrical hearing. An audiometric
record of appellant’s left ear and right ear was provided comparing numerous audiograms taken
from September 19, 1987 to June 13, 2013.
At the March 17, 2014 hearing, counsel for appellant argued that his hearing loss was
caused by his federal employment noise exposure. Appellant testified that he stopped hunting
approximately 20 years ago. He stated that he would occasionally go to target practice, used a
.40 caliber gun, and utilized hearing protection. Appellant further stated that he would shoot
straight ahead with the pistol held by two hands in the center of the body mass. The record was
held open for 30 days.

4

In an April 1, 2014 memorandum, counsel argued that Dr. Keebler incorrectly stated that
the worsening of appellant’s hearing since 1987 was more profound in the left ear as Ms. Towell
stated that it was actually more profound in the right ear. He further argued that FECA did not
allow for apportionment of causation and that a minor component of hearing loss could not
override appellant’s workplace-induced hearing loss.
By decision dated May 1, 2014, OWCP affirmed the May 10, 2013 decision finding that
appellant failed to establish that his hearing loss was causally related to employment-related
noise exposure. It noted that the weight of the medical evidence rested with Dr. Keebler and
Ms. Towell’s opinion was of no probative value as audiologists were not considered physicians
under FECA.3
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.5
Appellant has the burden of establishing by weight of the reliable, probative, and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.6 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.7
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;8 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;9 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for

3

5 U.S.C. § 8102(2).

4

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

Michael E. Smith, 50 ECAB 313 (1999).

6

Stanley K. Takahaski, 35 ECAB 1065 (1984).

7

See John W. Butler, 39 ECAB 852, 858 (1988).

8

Michael R. Shaffer, 55 ECAB 386 (2004).

9

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

5

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.10
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable certainty and must be supported
by medial rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.11
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish his or her claim, OWCP also has a
responsibility in the development of the evidence.12
ANALYSIS
It is not disputed that appellant was exposed to hazardous employment-related noise at
the U.S. Navy Supervisor of Shipbuilding. The issue is whether he established employmentrelated hearing loss due to noise exposure during his federal employment. The Board finds that
this case is not in posture for decision.
OWCP properly referred appellant to Dr. Keebler, a Board-certified otolaryngologist, for
a second opinion evaluation.13 In his April 16, 2013 report, Dr. Keebler stated that, from 1987 to
the present, appellant’s current audiometric findings were worse bilaterally. He diagnosed
bilateral sensorineural hearing loss which he opined was not due to employment-related noise
exposure. Dr. Keebler stated that appellant’s sensorineural hearing loss was in excess of what
would normally be predicated on the basis of presbycusis in the left ear only. When asked if the
workplace noise exposure was sufficient as to intensity and duration to have caused the loss in
question, he replied that it could have been but because only the left ear had changed enough for
noise-induced hearing loss, the hearing loss was most likely caused by gun blast noise rather than
industrial noise since industrial noise would harm both ears equally.
The Board finds that the medical evidence has not been properly developed.
Dr. Keebler’s opinion is speculative and equivocal in nature as he failed to provide a rationalized
opinion establishing that occupational noise exposure had no effect on appellant’s hearing.14 The
Board notes that there is no requirement that the federal employment be the only cause of
appellant’s hearing loss. If work-related exposures caused, aggravated, or accelerated

10

Beverly A. Spencer, 55 ECAB 501 (2004).

11

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

12

See Claudia A. Dixon, 47 ECAB 168 (1995).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(b)
(January 2013).
14

M.H., Docket No. 12-733 (issued September 5, 2012); D.F., Docket No. 09-1080 (issued December 7, 2009).

6

appellant’s condition, he is entitled to compensation.15 The Board has consistently held that a
medical opinion not fortified by rationale is of limited probative value.16
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.17 When OWCP selects a physician for an
opinion on causal relationship, it has an obligation to secure, if necessary, clarification of the
physician’s report and to have a proper evaluation made.18 Because it referred appellant to a
second opinion physician, it has the responsibility to obtain a report that will resolve the issue of
whether his hearing loss was caused by his federal employment.19 As OWCP referred appellant
to Dr. Keebler, it has the responsibility to obtain a report that will resolve the issue of whether
appellant’s hearing loss was caused or contributed to by his federal employment.20
Following this and any other further development deemed necessary, OWCP shall issue
an appropriate merit decision on appellant’s occupational disease claim.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
developed sensorineural hearing loss in the performance of duty.

15

See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

16

F.H., Docket No. 14-0268 (issued July 2, 2014); A.D., 58 ECAB 149 (2006).

17

P.K., Docket No. 08-2551 (issued June 2, 2009).

18

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

19

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

20

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2014 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent
with this opinion.
Issued: October 7, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1658
Issued: November 12, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 1, 2019 appellant, through counsel, filed a timely appeal from February 13 and
July 16, 2019 merit decisions 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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the July 16, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to expand the acceptance
of her claim to include the additional conditions as causally related to her accepted November 22,
2016 employment injury; (2) whether OWCP abused its discretion by denying authorization for
left shoulder surgery; (3) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective June 6, 2018, as she no longer had
residuals or disability causally related to the accepted November 22, 2016 employment injury; and
(4) whether appellant has met her burden of proof to establish continuing employment-related
residuals or disability after June 6, 2018, causally related to the accepted November 22, 2016
employment injury.
FACTUAL HISTORY
On November 22, 2016 appellant, then a 57-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on that date she was involved in a motor vehicle
accident and injured her wrists and sustained headaches while in the performance of duty.4 On
December 27, 2016 OWCP accepted the claim for bilateral wrist sprains, sprain of the left
shoulder, and sprains of the cervical, thoracic, and lumbar regions. Appellant did not immediately
stop work. OWCP paid her wage-loss compensation on the supplemental rolls from January 17 to
June 24, 2017 and placed her on the periodic rolls from June 25, 2017 to June 5, 2018.
Appellant treated with Dr. Laura E. Ross, a Board-certified orthopedist, from February 24
to August 11, 2017, for injuries sustained in a motor vehicle accident at work. Dr. Ross diagnosed
cervical, thoracic, and lumbar sprain and strain; bilateral shoulder pain; bilateral wrist pain; and
left scapular pain. She opined that appellant was disabled from work. In duty status reports (CA17) dated February 16 to October 25, 2017, Dr. Ross diagnosed bilateral hip pain and bursitis and
advised that appellant continued to be disabled from work.
A magnetic resonance imaging (MRI) scan of the cervical spine dated May 3, 2017
revealed multilevel cervical spondylosis, narrowing of neural foramen at C5-C6, and disc
protrusion at C6-C7. On June 8, 2017 appellant underwent a thoracic spine, lumbar spine, and left
shoulder MRI scans. The MRI scan of the thoracic spine revealed disc bulges at C5-C6, C6-C7,
and T10-T11. The MRI scan of the left shoulder was normal and the MRI scan of the lumbar spine
revealed disc bulges at L4-L5 and L5-S1 and neural foraminal narrowing at L4-L5 and L5-S1.
Appellant was treated by Dr. Vannette Perkins, a Board-certified anesthesiologist, who
performed epidural steroid injections on August 30 and September 12, 2017. Dr. Perkins
diagnosed lumbar radiculopathy at L5-S1.
A left shoulder arthrogram, performed on October 19, 2017, revealed a large tear of the
anterior labrum and small tear of the posterior superior labrum. An electromyogram (EMG), dated
November 6, 2017, revealed no abnormalities.

4

In response to OWCP’s development letter, on December 15, 2016, appellant reported driving her postal truck
when she heard a “pop” and lost control of the steering wheel and brakes, striking a fire hydrant and shrubs as her
truck went down an embankment.

2

Dr. Ross treated appellant in follow up from October 25 to December 1, 2017 and
diagnosed multilevel cervical, thoracic, and lumbar disc protrusions, left shoulder impingement
syndrome with acromioclavicular (AC) joint arthrosis and labral tear, probable labral tear of the
right shoulder with impingement, bilateral wrist contusions with possible carpal tunnel syndrome
(CTS), and left lower extremity radiculitis. She indicated that appellant failed an adequate course
of conservative treatment for the left shoulder and recommended arthroscopic surgery, labral
repair, and arthroscopic subacromial decompression. In duty status reports (CA-17) dated
October 25 and December 1, 2017, Dr. Ross advised that appellant remained disabled from work.
On December 27, 2017 Dr. Ross requested authorization to perform left shoulder
arthroscopy.
On January 3, 2018 OWCP notified appellant that her request for authorization of the left
shoulder arthroscopic surgery could not be approved. It indicated that the evidence was
insufficient to authorize the proposed surgery, because the requested treatment did not appear to
be medically necessary for and causally related to the accepted conditions.
In duty status reports (Form CA-17) dated January 12 and February 23, 2018, Dr. Ross
diagnosed bilateral sprain of the cervical, thoracic, and lumbar spine and advised that appellant
remained disabled from work.
On February 1, 2018 OWCP referred appellant, the case file, a statement of accepted facts
(SOAF), and a series of questions to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for
a second opinion examination. It requested his opinion on appellant’s employment-related
conditions, disability and whether she continued to suffer from residuals of her work-related injury,
whether she was capable of returning to gainful employment, and whether the proposed left
shoulder arthroscopic surgery was medically necessary.
In a February 16, 2018 report, Dr. Askin described appellant’s November 22, 2016
employment injury, noting that there was a defect in the vehicle she was operating and she hit a
fire hydrant before proceeding down an embankment. He recounted her medical history, reviewed
diagnostic reports, and provided findings on physical examination. Dr. Askin diagnosed bilateral
wrist sprain, left shoulder sprain, and cervical, thoracic, and lumbar sprains. He noted that
appellant had age-appropriate degenerative changes without objectively determinable lingering
effects of any of the accepted conditions. Dr. Askin concluded that the accepted conditions were
totally resolved. He noted that appellant was diagnosed with multilevel cervical, thoracic, and
lumbar disc protrusions, left shoulder impingement syndrome with AC arthrosis, left shoulder
labral tear, probable right shoulder labral tear with impingement syndrome, bilateral wrist
contusions, possible CTS, and left shoulder radiculitis. Dr. Askin opined that these diagnosed
conditions were not considered to be related to, or a consequence of, the motor vehicle incident of
November 22, 2016, but were age-appropriate imperfections for someone of appellant’s age. He
noted the labral tears detected by prior MRI scan were age-appropriate and accrued spontaneously
independent of the accident described. Dr. Askin opined that there was no traumatically-induced
imperfections evidenced by the appellant for which surgical treatment would be effective and the
proposed surgical treatments were not medically reasonable or necessary services “for the reported
injury.” He explained, “In fact, surgery would be an injury that would likely cause unneeded harm
to her.” Dr. Askin concluded that no further medical treatment was necessary and that appellant
could return to her date-of-injury position.
3

In a letter dated March 12, 2018, OWCP advised appellant that the evidence submitted was
insufficient to establish that she sustained additional conditions causally related to the
November 22, 2016 employment injury. It requested that she submit additional medical evidence
to establish additional diagnosed conditions causally related to the November 22, 2016
employment injury.
In a February 23, 2018 progress report, Dr. Ross noted that appellant experienced minimal
relief with physical therapy and again recommended that appellant undergo the proposed left
shoulder surgery. She noted that appellant remained off work. A Form CA-17 report, dated
March 16, 2018, diagnosed bilateral shoulder pain, cervical, thoracic, and lumbar spasms and
noted that appellant could return to full-time light-duty work.
By decision dated April 2, 2018, OWCP denied authorization for the left shoulder
arthroscopic surgery. It found that the weight of the medical opinion evidence rested with
Dr. Askin, who concluded that the requested treatment was not medically necessary for appellant’s
accepted employment injury.
On March 16, 2018 Dr. Ross further evaluated appellant and noted complaints of constant
pain in her knees and shoulders. She recommended a left shoulder arthroscopy and opined that
this procedure was related to her work injury.
By decision dated April 13, 2018, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to establish that the
additional conditions were causally related to the accepted November 22, 2016 employment
injury. It noted that the second opinion report of Dr. Askin established that appellant had not
developed multilevel cervical, thoracic, and lumbar disc protrusions, left shoulder impingement
syndrome with AC arthrosis, left shoulder labral tear, probable right shoulder labral tear with
impingement syndrome, bilateral wrist contusions, possible CTS, and left lower extremity
radiculopathy as a consequence of her accepted injury.
On May 1, 2018 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits as she no longer had disability or residuals causally related to
her accepted contusion of the sprain of the bilateral wrists, sprain of the left shoulder, and sprain
of the cervical, thoracic, and lumbar regions. It found, based on Dr. Askin’s report, that she had
no current disability and no medical residuals requiring further treatment. OWCP allowed
appellant 30 days to respond to the proposal.
On April 19 and May 18, 2018, Dr. Ross opined that the proposed surgery was causally
related to the accepted employment injury and medically necessary. In letters of medical necessity
dated May 3 and 10, 2018, she requested authorization for pain treatment.
On May 3, 2018 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative with respect to the April 2, 2018 decision denying her request for
arthroscopic surgery of the left shoulder.
In a report dated May 10, 2018, Dr. Ross reviewed Dr. Askin’s report and disagreed with
his observations and conclusions. She opined that the labral tear was traumatically induced by the
November 22, 2016 accident and that therefore the acceptance of appellant’s claim should be
4

expanded to include impingement syndrome and labral tear of the left shoulder. With regard to
Dr. Askin’s opinion that tears of the labrum noted on appellant’s MRI scan were ordinarily
incidental findings, Dr. Ross agreed that labrum tears could be degenerative in nature, but stated
that this was not ordinarily the case, especially following a traumatic motor vehicle accident like
appellant had experienced on November 22, 2016. Dr. Ross disagreed with Dr. Askin’s statement
that there was no traumatically-induced imperfection for which surgical treatment would be
effective. She concluded that appellant sustained injuries to her left shoulder were a direct result
of the work accident. Dr. Ross considered appellant’s objective medical findings, the history of
her injury, her consistent and progressive symptoms, and failure to positively respond to
conservative treatment and firmly concluded that the labral tear was traumatically induced by the
accident on November 22, 2016. As such, she opined that surgical intervention for the left
shoulder was medically necessary.
In response to the proposed notice of termination, on May 21, 2018 counsel asserted that
Dr. Askin’s report was not well reasoned and failed to provide medical rationale to support his
conclusion that appellant’s left shoulder condition was related to the aging process. He further
asserted that there was a conflict of opinion between Dr. Askin and Dr. Ross regarding whether
the labral tear was related to the motor vehicle accident and whether surgery was warranted.
By decision dated June 1, 2018, OWCP denied appellant’s request for an oral hearing. It
found that her request was not made within 30 days of OWCP’s April 2, 2018 decision. As such,
appellant was not entitled to an oral hearing or a review of the written record as a matter of right
and determined that the case could equally be addressed by requesting reconsideration.
By decision dated June 6, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day.
On June 11, 2018 appellant, through counsel, requested an oral hearing, with regard to the
June 6, 2018 decision, before an OWCP hearing representative. The hearing was held on
November 29, 2018.
On June 13, 2018 appellant, through counsel, requested reconsideration of the April 2,
2018 decision which denied left shoulder surgery.
By decision dated September 11, 2018, OWCP denied modification of the decisions dated
April 2 and 13, 2018.5
By decision dated February 13, 2019, an OWCP hearing representative affirmed the
decision dated June 6, 2018, terminating appellant’s wage-loss compensation and medical
benefits.
OWCP received an operative report from Dr. Ross dated January 2, 2019, who performed
arthroscopic left subacromial decompression with debridement of grade 3 labral tear and partial

5

Although the record does not contain a request for reconsideration of the April 13, 2018 decision, OWCP
addressed both decisions and issues in its September 11, 2018 decision.

5

undersurface rotator cuff tear. She diagnosed impingement syndrome of the left shoulder with
labral tear.
On March 27, 2019 appellant, through counsel, requested reconsideration of the decision
dated September 11, 2018.
By decision dated July 16, 2019, OWCP denied modification of the decision dated
September 11, 2018.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.7 The opinion of the physician must be based on a complete factual and medical
background of the claimant, 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 accepted employment injury.8 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.9
Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”10 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.11
ANALYSIS -- ISSUE 1
The Board finds this case not in posture for decision.
OWCP initially accepted that appellant sustained a sprain of the left and right wrists, sprain
of the left shoulder, and sprain of the cervical, thoracic, and lumbar regions causally related to a
November 22, 2016 employment injury.

6

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

See S.A., Docket No. 18-0399 (issued October 16, 2018).

8

See P.M., Docket No. 18-0287 (issued October 11, 2018).

9

Id.

10

5 U.S.C. § 8123(a).

11

C.W., Docket No. 18-1536 (issued June 24, 2019).

6

OWCP referred appellant to Dr. Stanley Askin for a second opinion examination and
opinion on appellant’s employment-related conditions, disability, and request for left shoulder
arthroscopic surgery. It specifically requested that Dr. Askin determine whether her claim should
be expanded to include other diagnoses, whether appellant continued to suffer from residuals of
her work-related injury, the need for surgery or further treatment, and whether she was capable of
returning to gainful employment.
In his report dated February 16, 2018, Dr. Askin diagnosed bilateral wrist sprain, left
shoulder sprain, and cervical, thoracic, and lumbar sprains, all totally resolved. He noted that
appellant had age-appropriate degenerative changes without objectively determinable lingering
effects of any of the accepted conditions. Dr. Askin noted that she was diagnosed with multilevel
cervical, thoracic, and lumbar disc protrusions, left shoulder impingement syndrome with AC
arthrosis, left shoulder labral tear, probable right shoulder labral tear with impingement syndrome,
bilateral wrist contusions, possible CTS, and left shoulder radiculitis; however, these diagnosed
conditions were not considered to be related or a consequence to the motor vehicle incident of
November 22, 2016, but were age-appropriate imperfections for someone of appellant’s age. He
noted that labral tears detected by appellant’s prior MRI scan were age-appropriate and accrued
spontaneously independent of the accident described and opined that there was no traumaticallyinduced condition for which surgical treatment would be effective. Dr. Askin found no objective
determinable findings that precluded her from returning to work without restrictions.
In a report dated May 10, 2018, Dr. Ross reviewed Dr. Askin’s report and disagreed with
his observations and conclusions. She opined that the labral tear was traumatically induced by the
November 22, 2016 accident, and appellant’s claim should be expanded to include impingement
syndrome and labral tear of the left shoulder. Dr. Ross agreed that labrum tears could be
degenerative in nature; however, she did not think this was ordinarily the case especially following
a traumatic motor vehicle accident like appellant experienced on November 22, 2016. She further
disagreed with Dr. Askin’s opinion that there was no traumatically-induced imperfection for which
surgical treatment would be effective. Dr. Ross asserted that appellant sustained injuries to her
left shoulder as a direct result of the work accident. She considered appellant’s objective medical
findings, the history of her injury, her consistent and progressive symptoms and failure to
positively respond to conservative treatment and firmly concluded that the labral tear was
traumatically induced by the accident on November 22, 2016. As such, Dr. Ross opined that
surgical intervention for the left shoulder was medically necessary.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint a referee physician or impartial medical specialist who shall
make an examination.12 The Board finds that a conflict remains in the medical opinions between
Dr. Askin and Dr. Ross regarding whether the acceptance of appellant’s claim should be expanded
to include additional conditions causally related to the accepted November 22, 2016 employment
injury.13

12

See C.S., Docket No. 19-0731 (issued August 22, 2019).

13

S.M., Docket No. 19-0397 (issued August 7, 2019).

7

The Board finds that, prior to determining whether OWCP abused its discretion by denying
authorization for left shoulder surgery, the issue of whether appellant’s claim should be expanded
to include additional conditions must first be resolved.
The Board further finds that the termination of appellant’s wage-loss compensation and
medical benefits must be reversed as it was premature to address whether OWCP had met its
burden of proof to terminate her wage-loss compensation and medical benefits, effective June 6,
2018, because she no longer had residuals or disability causally related to the accepted
November 22, 2016 employment injury.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical examiner for resolution of the conflict in medical opinion evidence in accordance with 5
U.S.C. § 8123(a).14 After such further development as OWCP deems necessary, it shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision. The Board further finds that
the termination of appellant’s wage-loss compensation and medical benefits is reversed.
ORDER
IT IS HEREBY ORDERED THAT the February 13, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
IT IS FURTHER ORDERED THAT the July 16, 2019 decision is set aside and the case
is remanded for further development consistent with the decision of the Board.
Issued: November 12, 2020
Washington, DC

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

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

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

14

Id.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, NORTHERN NEW
ENGLAND PERFORMANCE CLUSTER,
Burlington, VT, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 13-2057
Issued: March 5, 2014

Case Submitted on the Record

ORDER VACATING DECISION AND REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

The Board issued a decision in this case on February 7, 2014 affirming May 16 and
July 25, 2013 decisions of the Office of Workers’ Compensation Programs (OWCP). Prior to
the issuance of the Board’s decision, on February 5, 2014, the Director of OWCP filed a motion
to remand the case.
The Board will vacate its decision dated February 7, 2014 and grant the Director’s
motion to remand.1 The Director notes that OWCP has received medical evidence which was
not before the Board on appeal.2 As appellant has now submitted medical reports which could
not be considered by the Board, the Director asks that the Board remand the matter to OWCP for
further development and a new decision regarding whether the newly submitted medical reports
1

The Board’s Rules of Procedure at 20 C.F.R. § 501.6(d) provides that decisions and orders of the Board are final
as to the subject matter appealed, and such decisions and orders are not subject to review, except by the Board. The
decisions and orders of the Board will be final upon the expiration of 30 days from the date of issuance of the
Board’s decision. As 30 days have not expired from the issuance of the Board’s decision, the Board retains
jurisdiction over this appeal.
2

The Board’s review of a case is limited to evidence in the case record that was before OWCP at the time of its
final decision. 20 C.F.R. § 501.2(c)(1).

establish this claim. The Board hereby grants the Director’s motion and remands the case for
further development, to be followed by a merit review.
IT IS HEREBY ORDERED THAT the Board’s decision dated February 7, 2014 is
vacated and this case is remanded to Office of Workers’ Compensation Programs for further
proceedings to be followed by merit review.
Issued: March 5, 2014
Washington, DC

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

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

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

2