United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE ARMY,
FORT CAMPBELL, KY, Employer
__________________________________________

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

Docket No. 07-374
Issued: May 10, 2007

Case Submitted on the Record

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

JURISDICTION
On November 22, 2006 appellant filed a timely appeal from a September 8, 2006 Office
of Workers’ Compensation Programs’ merit decision affirming the denial of compensation for
lost wages between April 1 and June 1, 2005 and a denial of authorization to change physicians.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether appellant’s disability for intermittent days between April 1
and June 1, 2005 was causally related to her March 4, 2004 employment injury; and (2) whether
the Office abused its discretion in denying her request to change physicians.
FACTUAL HISTORY
On March 9, 2004 appellant, then a 46-year-old office automation assistant, filed a
traumatic injury claim alleging that she injured her right shoulder on March 4, 2004 when she
carried a box from one building to another. Dr. Donald W. Huffman, an attending Board-

certified family practitioner, diagnosed a thoracic strain and released appellant to return to
modified work as of March 12, 2004. Appellant was released to return to regular work on
April 1, 2004. The Office accepted her claim for a thoracic strain.
On April 4, 2004 appellant requested permission to change physicians.
In reports dated June 24 and November 2, 2004, Dr. Wesley L. Coker, a Board-certified
orthopedic surgeon, indicated that appellant picked up a box at work on March 4, 2004 and was
placed on a physical therapy program by her attending physician. Appellant was experiencing
pain in the distal portion of her right scapula (shoulder blade). Dr. Croker made a tentative
diagnosis of a right rhomboid strain and placed her on an exercise program.
On November 16, 2004 the Office advised appellant that it had not authorized treatment
by Dr. Coker for her March 4, 2004 employment injury, a thoracic strain which should have
resolved. It indicated that appellant needed to provide a medical report explaining how her
current condition was related to her employment injury.
On July 12, 2005 appellant filed a claim for compensation for lost wages for the period
April 1 to June 1, 2005.
On August 2, 2005 the Office asked appellant to provide medical evidence establishing
that her disability between April 1 and June 1, 2005 was causally related to her March 4, 2004
employment injury. Appellant responded that she was treated by Dr. Robert J. Pound, a
chiropractor, on intermittent days between April 1 and June 1, 2005.
On August 23, 2005 Dr. Pound indicated that he was treating appellant for pain in her
thoracic spine.
On September 2, 2005 the Office advised appellant that Dr. Pound was not authorized to
treat her because chiropractors were not authorized to treat a back strain.
By decision dated October 7, 2005, the Office denied appellant’s claim for compensation
for intermittent disability between April 1 and June 1, 2005. The Office also denied appellant’s
request to change physicians.
Appellant requested a hearing that was held on June 29, 2006.
By decision dated September 8, 2006, the Office hearing representative affirmed the
October 7, 2005 decision.
LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of proving by the preponderance of the reliable, probative and
substantial evidence that he was disabled for work as the result of an employment injury.1
Monetary compensation benefits are payable to an employee who has sustained wage loss due to
1

David H. Goss, 32 ECAB 24 (1980).

2

disability for employment resulting from the employment injury.2 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues which must be proved by a preponderance of reliable, probative and substantial
medical evidence.3
ANALYSIS -- ISSUE 1
Appellant claimed compensation for intermittent days between April 1 and June 1, 2005.
She was treated on those days by Dr. Pound, a chiropractor. The Office did not authorize this
treatment. Under section 8101(2) of the Federal Employees’ Compensation Act, chiropractors
are only considered physicians and their reports considered medical evidence to the extent that
they treat spinal subluxations as demonstrated by x-ray to exist. Dr. Pound did not diagnose a
spinal subluxation as shown on x-ray. He is not considered a physician under the Act in this
case. Dr. Pound’s reports are of no probative value on the issue of whether appellant was
disabled between April 1 and June 1, 2005 due to her March 4, 2004 employment injury. As he
does not qualify as a physician under the Act, the Office properly denied appellant’s claim for
compensation between April 1 and June 1, 2005.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of the Act provides that an employee injured in the performance of duty
shall be furnished with the services, appliances and supplies prescribed or recommended by a
qualified physician which are likely to cure, give relief, reduce the degree or the period of
disability or aid in lessening the amount of monthly compensation.4 This section also provides
that an employee may initially select a physician to provide medical services, appliances and
supplies in accordance with the Office’s regulations.5 These regulations provide that an
employee who wishes to change physicians must submit a written request to the Office fully
explaining the reasons for the request. The Office may approve the request in its discretion if
sufficient justification is shown.6
ANALYSIS -- ISSUE 2
On April 4, 2004 appellant requested permission to change physicians from Dr. Huffman
to Dr. Coker. The record shows that appellant’s last treatment by a physician was November 2,
2004 when she saw Dr. Coker for right shoulder pain. Dr. Coker did not provide findings on
examination, a diagnosis or a rationalized opinion explaining how appellant’s condition was
causally related to her March 4, 2004 employment injury, a thoracic strain. Appellant failed to
establish that she had any work-related medical condition after April 1, 2004, the date she was
2

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

3

Edward H. Horten, 41 ECAB 301 (1989).

4

5 U.S.C. § 8103(a).

5

Id.

6

See 20 C.F.R. § 10.316(b).

3

released to regular work by Dr. Huffman. Consequently, she did not establish a justification for
a change in physicians from Dr. Huffman to Dr. Coker. Therefore, the Office did not abuse its
discretion in denying appellant request to change physicians.
CONCLUSION
The Board finds that appellant failed to establish that her disability for intermittent days
between April 1 and June 1, 2005 was causally related to her March 4, 2004 employment injury.
The Board further finds that the Office did not abuse its discretion in denying authorization for a
change in physicians.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 8, 2006 is affirmed.
Issued: May 10, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CINCINNATI VA MEDICAL CENTER,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 21-1245
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 21, 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 her burden of proof to establish a medical condition
causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On November 3, 2020 appellant, then a 41-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 4, 2018 she injured her right arm when she grabbed a
patient who attempted to leave the premises while in the performance of duty. She explained that
the patient became agitated, started to swing his cane at the staff, and attempted to leave the
hospital. Appellant asserted that she grabbed him at the same time the police attempted to subdue
him by placing him on the bed which jerked her arm to the left and pulled her down with the patient
onto the bed. She noted that she initially experienced immediate pain to her wrist and arm, which
worsened with certain activities and continued days later. Appellant stopped work on
December 7, 2018.
In a November 18, 2020 development letter, OWCP notified appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
factual questionnaire for her completion. OWCP afforded appellant 30 days to respond. No
further evidence was submitted.
By decision dated December 21, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the accepted December 4, 2018 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
In a December 4, 2018 report, Dr. Jason T. Hildebrant, an internist, related that appellant
was involved in a work-related altercation with a patient who was trying to leave the hospital. He
summarized her account that the patient became agitated and aggressive, and that she tried to
redirect him back to his bed while a coworker relieved him of his cane. Dr. Hildebrant noted that
appellant was unsure whether she injured her arm from being hit by the cane or by the patient.
Appellant reported having aching pain in her right forearm. Dr. Hildebrant conducted a physical
examination and diagnosed right arm pain.
A December 15, 2018 x-ray of the right wrist revealed no acute osseous injury. A right
hand x-ray of even date demonstrated no fracture or dislocation. A right forearm x-ray of even
date revealed mild degenerative changes.
In an August 31, 2020 medical report, Dr. Glen A. McClung, a Board-certified orthopedic
surgeon, noted that appellant presented with right shoulder pain after she fell on her right shoulder.
He conducted a physical examination and diagnosed a possible right shoulder partial rotator cuff
tear.
In a November 18, 2020 medical report, Dr. McClung reported that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He noted that she reinjured her right shoulder “in April.” Dr. McClung conducted a

2

physical examination and diagnosed probable right shoulder distal clavicle osteolysis, right
shoulder impingement, and a possible partial rotator cuff tear.
A November 30, 2020 magnetic resonance imaging (MRI) scan of the right shoulder
revealed moderate-to-severe supraspinatus and mild infraspinatus tendinosis without tear as well
as mild acromioclavicular (AC) joint osteoarthritis with acromial morphology.
In a December 2, 2020 medical report, Dr. McClung conducted a physical examination and
diagnosed right shoulder impingement, AC arthrosis, and rotator cuff tendinitis.
In a December 10, 2020 form report, Dr. McClung noted that appellant’s condition began
in April 2020 and diagnosed right shoulder pain, rotator cuff tendonitis, impingement, and AC
arthrosis. He advised that she was scheduled for right shoulder surgery on December 28, 2020.
In a December 28, 2020 operative report, Dr. McClung noted that appellant underwent
surgery, including right shoulder arthroscopies with subacrominal decompression, distal clavicle
excision, and extensive debridement. He diagnosed right shoulder impingement, AC arthrosis,
bursitis, and synovitis.
In a letter dated January 12, 2021, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on April 19, 2021.
By decision dated June 21, 2021, the hearing representative affirmed, as modified, the
December 21, 2020 decision, finding that the medical evidence submitted was sufficient to
establish a diagnosed medical condition. The claim remained denied, however, as the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted December 4, 2018 employment incident.
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 that the individual is an emp loyee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 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

3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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employment injury. 5 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. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 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 specif ic employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
In his November 18 2020 medical report, Dr. McClung noted that appellant sustained a
work-related injury of the right shoulder “back in December” when a patient grabbed and pulled
her arm. He also indicated that she reinjured her right shoulder “in April.” Dr. McClung diagnosed
right shoulder distal clavicle osteolysis, right shoulder impingement, and a possible partial rotator
cuff tear. While his report is generally supportive of causal relationship, he did not offer any
explanation or medical rationale as to how appellant could have developed the diagnosed right
shoulder conditions due to the accepted December 4, 2018 employment incident. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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medical rationale explaining how a given medical condition is related to the accepted employment
incident.10 For these reasons, this report is insufficient to establish the claim.
In his reports dated December 2, 10, and 28, 2020, Dr. McClung provided multiple
diagnoses related to appellant’s right shoulder and arm. However, he did not provide an opinion
on causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value. 11 Thus, these reports are
also insufficient to establish appellant’s claim.
In an August 31, 2020 medical report, Dr. McClung noted that appellant fell on her right
shoulder and diagnosed a possible right shoulder partial rotator cuff tear. However, he failed to
provide a firm diagnosis in connection with the accepted December 4, 2018 employment incident.
The Board has long held that a medical report lacking a firm diagnosis and a rationalized medical
opinion regarding causal relationship is of no probative value.12 Thus, this report is insufficient to
establish appellant’s claim.
Dr. Hildebrant, in his December 4, 2018 medical report, indicated that appellant was
involved in a work-related altercation with a patient who was trying to leave the hospital while
threatening staff members with his cane. He diagnosed right arm pain. However, the Board has
held that pain is a description of a symptom, not a clear diagnosis of a medical condition. 13 A
medical report lacking a firm diagnosis is of no probative value.14 This report is, therefore,
insufficient to establish a diagnosed medical condition causally related to the accepted
employment incident.
The remaining medical evidence includes radiographic studies. The Board has held,
however, that diagnostic studies, standing alone, lack probative value and are, therefore,
insufficient to establish the claim. 15

10
B.H., Docket No. 20-077 (issued October 21, 2020); see S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J.,
Docket No. 19-1339 (issued March 4, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a
report is of limited probative value regarding causal relationship if it does not contain medical rationale describing the
relation between work factors and a diagnosed condition/disability).
11
L.T., Docket No. 20-0582 (issued November 15, 2021); A.C., Docket No. 21-0087 (issued November 9, 2021);
D.B., Docket No. 19-0514 (issued January 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

W.G., Docket No. 20-0439 (issued July 13, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.R., Docket No. 18-1408 (issued March 1, 2019); D.A.,
Docket No. 18-0783 (issued November 8, 2018).
14

C.S., id.; J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

15

J.E., Docket No. 21-0956 (issued November 23, 2021); J.K., Docket No. 20-0591 (issued August 12, 2020); J.P.,
Docket No. 19-0129 (issued December 13, 2019).

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As the medical evidence of record is insufficient to establish that appellant’s diagnosed
right arm condition is causally related to the accepted December 4, 2018 employment incident, the
Board finds that appellant has not met her burden of proof.
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 met her burden of proof to establish a medical
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 09-173
Issued: July 6, 2009

Case Submitted on the Record

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

JURISDICTION
On October 22, 2008 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated September 24, 2008 and November 19, 2007. Under
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 more than a 13 percent permanent impairment to her
left upper extremity.
FACTUAL HISTORY
Appellant, a 52-year-old clerk, injured her left shoulder and neck while separating mail
on March 26, 2004. She filed a claim for benefits, which the Office accepted for aggravation of
cervical strain and left shoulder impingement. The Office authorized surgery for acromioplasty,
arthroscopic subacromial decompression, a resection arthroplasty, of the left shoulder. The
procedure was performed by Dr. Jerry Barron, an orthopedic surgeon, on February 2, 2007.

In a physical therapy report dated May 10, 2007, a physical therapist noted that appellant
sustained loss of motion based on measurements for abduction, external rotation and internal
rotation.
In a disability slip dated July 2, 2007, Dr. Barron stated that appellant had a 20 percent
permanent impairment of the left upper extremity.
On July 6, 2007 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left upper extremity.
In a report dated July 19, 2007, an Office medical adviser found that appellant had a 13
percent permanent impairment pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (fifth edition). He rated a 10 percent permanent
impairment for resection arthroplasty, distal clavicle and 3 percent impairment for the loss of
motion in the left shoulder, as noted in the May 10, 2007 physical therapy notes.
By decision dated November 19, 2007, the Office granted appellant a schedule award for
a 13 percent permanent impairment of the left upper extremity for the period June 12, 2007 to
March 21, 2008, for a total of 40.56 weeks of compensation.
On November 29, 2007 appellant requested reconsideration of the November 19, 2007
schedule award decision. She submitted several medical reports and diagnostic test reports;
however, none of these reports contained a rating for permanent impairment based on her
accepted neck and left shoulder conditions.
By decision dated September 24, 2008, the Office found that appellant was not entitled to
any additional award for impairment to his left lower extremity.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act1 set forth
the number of weeks of compensation to be paid for permanent loss, or loss of use of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.2 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating
schedule losses.3

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

Id. at § 8107(c)(19).

3

20 C.F.R. § 10.404.

2

ANALYSIS
In this case, the Office medical adviser determined that appellant had a 13 percent
impairment of the left upper extremity based on the A.M.A., Guides. He properly rated a 10
percent impairment for left shoulder resection arthroplasty, as set forth at Table 16-27 at page
506 of the A.M.A., Guides. This finding was proper and in conformance with the applicable
table of the A.M.A., Guides. However, the Office medical adviser failed to specify the methods
by which he calculated the three percent rating for loss of range of motion. He did not examine
appellant and derived this rating by relying on random physical therapy notes. Therefore, the
Office medical adviser failed to provide an adequate basis for his finding of a three percent
impairment based on loss of motion. In addition, the Board notes that Table 17-2 of the A.M.A.,
Guides expressly prohibits an award for impairments based on muscle atrophy, muscle strength
(loss), range of motion loss or ankylosis in combination with an impairment due to a diagnosisbased estimate (resection arthroplasty).4 The Board therefore disallows the three percent
impairment rating the Office medical adviser accorded for loss of range of motion. The Board
finds that the Office medical adviser’s opinion constituted a sufficient basis for an award based
on a 10 percent left upper extremity impairment. The Office therefore properly found that his
opinion constituted the weight of the medical evidence in this regard.
Following the November 19, 2007 decision, appellant submitted several reports but did
not submit a report which provided a rating for permanent impairment based on her accepted
neck and left shoulder conditions. As there is no other medical evidence establishing that
appellant sustained any additional permanent impairment, the Board finds that appellant is
entitled to a 10 percent impairment of the left upper extremity.
CONCLUSION
The Board finds that appellant has established no more than a 10 percent impairment of
the left upper extremity.

4

See James R. Taylor, 56 ECAB 537 (2005). In this case the Board held that the principle enunciated in Table
17.2, page 526 for not combining these awards in lower extremity impairments also applies to upper extremity
impairments.

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ORDER
IT IS HEREBY ORDERED THAT the September 24, 2008 and November 19, 2007
decisions of the Office of Workers’ Compensation Programs be affirmed, as modified.
Issued: July 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1910
Issued: April 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 13, 2013 appellant, through his attorney, filed a timely appeal from the
April 8, 2013 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 his burden of proof to establish disability on or after
September 28, 1979 due to his accepted work injuries.
FACTUAL HISTORY
OWCP accepted that on November 4, 1978 appellant, then a 40-year-old mail carrier,
sustained cervical and low back strains when his postal vehicle was struck from behind by

1

5 U.S.C. §§ 8101-8193.

another vehicle.2 Appellant received continuation of pay from November 7 to December 25,
1978 and disability compensation for intermittent periods between December 26, 1978 and
August 29, 1979. He returned to limited-duty work on a full-time basis on August 30, 1979
without any wage loss.
Appellant resigned from the employing establishment effective September 28, 1979. He
filed a claim alleging that he was entitled to disability compensation beginning
September 28, 1979 due to his accepted work injuries.
In a report dated February 22, 1984, Dr. Roger L. Weir, an attending Board-certified
neurologist, stated, “[appellant’s] problems with his back and neck are caused by processes
which were induced by his injuries in 1972 and 1978. Similarly, [his] work limitations are due
to these injuries.”
In a May 8, 1984 report, Dr. Weir stated that appellant was first seen in January 1981
when he presented with pain in his back, neck and legs. Appellant reported that “his back had
been going out” since the fall of 1981 and that he would fall to the ground and be unable to get
up.
By decision dated January 9, 1986, OWCP denied appellant’s claim. It found that he
failed to submit sufficient medical evidence to establish that he was disabled on or after
September 28, 1979 due to his accepted work injuries.
In an August 15, 2011 letter, appellant, through counsel, requested reconsideration of his
claim. Counsel indicated that there was some connection to a “decision of May 24, 1983 by the
Merit Systems Protection Board” and appellant’s entitlement to disability compensation under
FECA. He stated that, once OWCP accepts a claim, it has the burden of justifying termination or
modification of compensation. Counsel asserted that it violated appellant’s due process rights
and did not justify its termination of his compensation.
Appellant submitted an August 13, 1987 report in which Dr. Weir indicated that his
symptoms seemed to fluctuate and stated, “His symptoms may be exacerbated by returning to a
job with sustained physical activities.” Dr. Weir diagnosed back pain, neck pain and muscle
spasms.
In a January 9, 1991 report, Dr. Weir indicated that appellant’s symptoms would be
markedly exacerbated by his prior work. He diagnosed back pain, neck pain, muscle spasm,
hypertension and hypercholesterolemia. Appellant submitted additional reports of Dr. Weir and
other attending physicians which did not address his accepted work injuries or contain an opinion
on the cause of his claimed disability. He resubmitted documents to OWCP, including the
February 22 and May 8, 1984 reports of Dr. Weir.
In an April 8, 2013 decision, OWCP affirmed the denial of appellant’s claim. It found
that he had not submitted sufficient medical evidence to establish disability on or after
September 28, 1979 due to his accepted work injuries.
2

OWCP previously accepted that appellant sustained a lumbar strain on January 8, 1972.

2

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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained 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 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. 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 specific employment factors identified by the claimant.4 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues, which must be proved by a preponderance of reliable, probative and substantial
medical evidence.5 It is well established that the possibility of future injury constitutes no basis for
the payment of compensation.6 The Board has long held that entitlement to benefits under statutes
administered by other federal agencies does not establish entitlement to benefits under FECA.7
ANALYSIS
OWCP accepted that on November 4, 1978 appellant sustained cervical and low back
strains when his postal vehicle was struck from behind by another vehicle.8 Appellant resigned
from the employing establishment effective September 28, 1979 and claimed that he was entitled
to receive disability compensation beginning September 28, 1979 due to his accepted work
injuries. OWCP denied his claim for work-related disability on and after September 28, 1979.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he was disabled on or after September 28, 1979.9 Before OWCP and on appeal, counsel argued
that it improperly terminated appellant’s compensation effective September 28, 1979.10 The
3

J.F., Docket No. 09-1061 (issued November 17, 2009).

4

See E.J., Docket No. 09-1481 (issued February 19, 2010).

5

W.D., Docket No. 09-658 (issued October 22, 2009).

6

Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988).

7

See Donald Johnson, 44 ECAB 540, 551 (1993).

8

OWCP previously accepted that appellant sustained a lumbar strain on January 8, 1972.

9

The Board notes that any medical opinion evidence that appellant submitted to support his claim for
compensation benefits should reflect a correct history and the physician should offer a medically sound explanation
of how the accepted work injuries caused disability for the claimed period.
10

In a brief submitted on appeal, counsel discussed a number of OWCP cases regarding its burden of proof to
terminate compensation. He argued that it violated appellant’s due process rights when it “retroactively” terminated
his compensation.

3

record, however, establishes that appellant returned to work without wage loss on
August 30, 1979. Appellant was not receiving compensation when he resigned and stopped
work on September 28, 1979. Therefore, OWCP did not terminate compensation. Appellant has
the burden of proof to establish entitlement to compensation on or after September 28, 1979 due
to his accepted work injuries.11
Appellant submitted a number of reports in which attending physicians discussed his
medical conditions, but none of these reports contained a rationalized medical opinion relating
any disability on or after September 28, 1979 to his January 8, 1972 or November 4, 1978 work
injuries.
In a report dated February 22, 1984, Dr. Roger L. Weir, an attending Board-certified
neurologist, stated, “[appellant’s] problems with his back and neck are caused by processes
which were induced by his injuries in 1972 and 1978. Similarly, his work limitations are due to
these injuries.” However, this report is of limited probative value on the relevant issue of this
case because Dr. Weir did not provide any description of appellant’s January 8, 1972 and
November 4, 1978 work injuries or explain how these soft tissue injuries could have caused
disability on or after September 28, 1979. In a May 8, 1984 report, he stated that appellant was
first seen in January 1981 when he presented with pain in his back, neck and legs and that since
the fall of 1981 his back had been “going out” on him. This report does not provide any
explanation of the cause of his reported back problems.
In an August 13, 1987 report, Dr. Weir diagnosed back pain, neck pain and muscle
spasms and stated, “[appellant’s] symptoms may be exacerbated by returning to a job with
sustained physical activities.” In a January 9, 1991 report, he diagnosed back pain, neck pain,
muscle spasm, hypertension and hypercholesterolemia and indicated that appellant’s symptoms
would be markedly exacerbated by his prior work. However, Dr. Weir did not provide an
opinion that appellant sustained any disability due to his January 8, 1972 or November 4, 1978
work injuries for any period. He seemed to suggest that appellant would sustain injury if he
returned to work, but it is well established that the possibility of future injury constitutes no basis
for the payment of compensation.12 Appellant submitted additional reports of Dr. Weir and other
attending physicians, but these reports did not address his accepted work injuries or contain an
opinion on the cause of his claimed disability on or after September 28, 1979.
Counsel also noted that there was some connection of his claim to a “decision of
May 24, 1983 by the Merit Systems Protection Board” and appellant’s entitlement to disability
compensation under FECA. The Board has long held that entitlement to benefits under statutes
administered by other federal agencies does not establish entitlement to benefits under FECA.13

11

See supra note 3. There also is no evidence that light duty necessitated by the work injury would not have
remained available had appellant not resigned. See Terry R. Hedman, 38 ECAB 222 (1986).
12

See supra note 6.

13

See supra note 7.

4

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 did not meet his burden of proof to establish that he
sustained disability on or after September 28, 1979 due to his accepted work injuries.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 15-1153
Issued: September 3, 2015

Case Submitted on the Record

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

JURISDICTION
On April 27, 2015 appellant filed a timely appeal from a March 3, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employee’s
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a ratable hearing loss warranting a
schedule award; and (2) whether OWCP properly denied hearing aids.
FACTUAL HISTORY
On July 7, 2014 appellant, then a 65-year-old aircraft mechanic, filed an occupational
disease claim alleging that he sustained bilateral hearing loss in the performance of duty. He
advised that he became aware of his condition and its relation to his federal employment on

1

5 U.S.C. § 8101 et seq.

November 13, 2012 after failing annual hearing tests given by the employing establishment.
Appellant advised that he was awaiting retirement.
By letter dated July 15, 2014, OWCP notified appellant of the type of evidence needed to
establish his claim.
In an August 1, 2014 statement, appellant advised that his friends and family began to
notice his hearing loss in late 2012. He provided a comprehensive history of his federal and
nonfederal employment and detailed his noise exposure at each position. Appellant advised that
he began at the employing establishment on August 16, 1999 and that he was exposed to noise
from jet engines, pneumatic power tools, and mobile support equipment. He stated that the use
of hearing protection was mandatory and that he was exposed to the hazardous noise eight hours
a day.
Appellant provided a November 27, 2013 report from an audiologist who advised that
appellant related that his hearing loss was due to noise exposure at the employing establishment.
The audiologist diagnosed mild-to-moderately severe high frequency sensorineural hearing loss.
An accompanying audiogram testing decibel losses at 500, 1,000, 2,000 and 3,000 hertz and
recorded losses of 0, 10, 5, and 25 in the left ear. Testing at the same levels for the right ear
recorded decibel losses of 0, 20, 10, and 35. A November 18, 2014 audiogram from the same
audiologist recorded losses of 5, 10, 0, and 25 in the left ear and 10, 15, 15, and 45 in the right
ear. The employing establishment also submitted audiometry findings from October 14
and 20, 2014.2
On January 27, 2015 OWCP referred appellant, together with a statement of accepted
facts, to Jeffrey Kunkes, a Board-certified otolaryngologist, for a second opinion. In a
February 2, 2015 report, Dr. Kunkes reviewed the statement of accepted facts and opined that
appellant had sloping bilateral sensorineural hearing loss. He opined that appellant’s workplace
exposure was sufficient in time, intensity, and duration to cause his hearing loss. Dr. Kunkes
recommended bilateral hearing aids. An accompanying January 29, 2015 audiogram tested
decibel losses at 500, 1,000, 2,000 and 3,000 hertz and recorded losses of 10, 15, 20, and 35 in
the left ear. Testing at the same levels for the right ear recorded decibel losses of 10, 10, 20, and
50.
By report dated February 10, 2015, an OWCP medical adviser, after reviewing the
record, opined that appellant’s hearing loss was causally related to his federal employment. He
found that appellant’s hearing impairment was not ratable for schedule award purposes. The
medical adviser also opined that hearing aids should not be authorized.
On February 11, 2015 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss.
On February 22, 2015 appellant filed a claim for a schedule award.

2

None of these audiograms were signed by a physician nor were they ratable under OWCP standards. See infra
notes 5, 6.

2

By decision dated March 3, 2015, OWCP denied appellant’s claim for a schedule award
because hearing loss was not sufficiently severe to be considered ratable. It also found that the
weight of medical evidence established that he would not benefit from hearing aids.
On appeal appellant argued that his audiologist opined that there was enough permanent
hearing loss to warrant hearing aids and compensation.
LEGAL PRECEDENT – ISSUE 1
The schedule award provision of FECA and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009) (hereinafter A.M.A., Guides),3 has been adopted by OWCP for evaluating scheduled loss
and the Board has concurred in such adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.5 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five and then added to the greater loss and the total is divided by six
to arrive at the amount of the binaural hearing loss.6 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.7
ANALYSIS -- ISSUE 1
The Board finds that the evidence of record does not establish that appellant sustained a
ratable hearing loss.
OWCP medical adviser properly applied OWCP’s standardized procedures to the
January 29, 2015 audiogram obtained by Dr. Kunkes. The January 29, 2015 audiogram certified
by Dr. Kunkes does not establish a ratable hearing loss. According to OWCP’s procedures,
3

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

4

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

5

See A.M.A., Guides 250.

6

Id. at 251.

7

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

3

testing at frequency levels of 500, 1,000, 2,000, and 3,000 hertz revealed hearing losses in the
right ear of 10, 10, 20, and 50. These totaled 90 decibels which, when divided by four, produced
an average hearing loss of 22.5 decibels. The average of 22.5 decibels when reduced by 25
decibels (the first 25 decibels are discounted as discussed above), equals zero and which, when
multiplied by the established factor of 1.5 produced a zero percent hearing loss in appellant’s
right ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000, and 3,000 hertz revealed
hearing losses in the left ear of 10, 15, 20, and 35. These totaled 80 decibels which when divided
by four, produced an average hearing loss of 20 decibels. The average hearing loss of 20
decibels, when reduced by 25 decibels (the first 25 decibels are discounted as discussed above),
equals zero which, when multiplied by the established factor of 1.5 produced a zero percent
hearing loss in appellant’s left ear. Consequently, appellant does not have a ratable hearing loss
under OWCP’s standardized procedures for rating hearing loss.
On appeal appellant argues that an audiologist opined that there was enough permanent
hearing loss to warrant compensation.8 OWCP accepted that appellant sustained bilateral
hearing loss due to noise exposure from his federal employment. For schedule award
compensation, the issue is whether he sustained any ratable impairment in accordance with the
A.M.A., Guides. OWCP medical adviser properly computed the percentage of appellant’s
hearing loss based on Dr. Kunkes’ audiograms of January 29, 2015 using the formula contained
in the A.M.A., Guides. The Board finds that OWCP properly applied the audiometric test of
January 29, 2015 for determining appellant’s impairment and eligibility for a schedule award.
Although appellant submitted audiograms from audiologists, these audiograms have no probative
medical value because an audiologist is not a physician as defined under FECA.9
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation.10
OWCP must therefore exercise discretion in determining whether the particular service,
appliance, or supply is likely to affect the purposes specified in FECA.11 Following medical
8

Appellant also asserted on appeal that he should be entitled to hearing aids. Entitlement to hearing aids is
addressed in Issue 2, infra.
9

5 U.S.C. § 8101(2); M.P., Docket No. 13-1790 (issued December 17, 2013) (an audiologist is not a physician
under FECA and the audiologist’s opinion regarding the medical cause of a claimant’s hearing loss is of no
probative medical value). See supra note 2.
10

5 U.S.C. § 8103. Thomas W. Stevens, 50 ECAB 288 (1999).

11

Id.

4

evaluation of a claim, if the hearing loss is determined to be nonratable for schedule award
purposes, other benefits such as hearing aids may still be payable if any employment-related
hearing loss exists.12
ANALYSIS -- ISSUE 2
The Board finds that this issue is not in posture for decision on whether appellant is
entitled to hearing aids.
The Board has held that, following medical evaluation of a claim, if the hearing loss is
determined to be nonratable for schedule award purposes, other benefits such as hearing aids
may still be provided if any causally related hearing loss exists.13 Dr. Kunkes’ report indicated
that appellant’s hearing loss was due to his federal employment and recommended bilateral
hearing aids. OWCP medical adviser recommended that OWCP not authorize hearing aids.
However, he did not offer any basis to explain why he disagreed with the recommendation of
Dr. Kunkes. Based on this, OWCP found that appellant was not entitled to hearing aids based on
the weight of the medical evidence. It did not explain the reasons why the weight of the medical
evidence supported that appellant was not entitled to hearing aids. OWCP must provide
appellant with a statement of reasons why his claim is being denied.14 The Board finds OWCP
abused its discretion in denying appellant hearing aids. A mere statement in an OWCP decision
that the weight of the medical evidence establishes that hearing aids would not be of benefit is
insufficient where an OWCP second opinion physician provides a contrary finding.15 Even if
OWCP medical adviser opines that hearing aids are not necessary, it must develop and weigh the
opinions.16
Accordingly, the case will be remanded to OWCP for further development on the
question of whether appellant is entitled to hearing aids for his employment-related hearing loss.
Following this and such other development as deemed necessary, it shall issue an appropriate
merit decision regarding appellant’s entitlement to hearing aids.
CONCLUSION
The Board finds that appellant did not establish that he had a ratable hearing loss entitling
him to a schedule award. The Board also finds that the case is not in posture for decision
regarding whether OWCP should authorize hearing aids.

12

See K.S., Docket No. 13-154 (issued April 17, 2013).

13

See Raymond VanNett, 44 ECAB 480 (1993).

14

20 C.F.R. § 10.126.

15

A.B., Docket No. 13-316 (issued June 20, 2013).

16

B.P., Docket No. 15-813 (issued July 7, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2015 decision of Office of Workers’
Compensation Programs is affirmed, in part, set aside in part, and remanded.
Issued: September 3, 2015
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Penn Hills, PA, Employer
__________________________________________

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

Docket No. 07-1934
Issued: March 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 16, 2007 appellant filed a timely appeal from an April 4, 2007 decision of the
Office of Workers’ Compensation Programs which found that she received an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether appellant received overpayments in compensation totaling
$2,496.67; and (2) whether the Office properly denied waiver of the overpayments.

FACTUAL HISTORY
On September 11, 2004 appellant, then a part-time flexible city carrier, sustained multiple
injuries when she was attacked by a dog while in the course of her federal duties.1 She stopped
work that day. An employing establishment computer print-out faxed to the Office on
September 14, 2004 indicated that appellant’s annual salary was $34,331.00 or $17.17 hourly.
Appellant initially received wage-loss compensation based on submitting CA-7 claims which
provided varying hourly pay rates of $17.41 and $17.47. A CA-7 signed by the employing
establishment on December 10, 2004 provided an hourly pay rate of $17.48 and advised that
appellant was entitled to 36.9 hours per week of wage-loss compensation. Appellant’s wage-loss
compensation was based on a weekly pay rate of $698.80. A memorandum to file on March 28,
2005 provided that appellant’s hourly pay rate was $17.17 per hour for 36.9 hours per week or a
weekly pay rate of $633.57. Appellant continued receiving compensation based on a weekly pay
rate of $633.57. A pay rate form in the record indicates that she worked substantially the entire
year prior to the September 11, 2004 employment injury with annual earnings of $32,902.86, that
she worked an average of 36.9 hours a week with calculations showing an hourly pay rate of
$17.48 for a weekly pay rate of $645.15. On May 16, 2005 the Office requested that the
employing establishment clarify appellant’s pay rate, and on May 18, 2005, the employing
establishment confirmed that appellant’s current pay rate was $17.48 an hour for 36.9 hours a
week. Appellant was placed on the periodic rolls on May 31, 2005 at a weekly pay rate of
$633.57, effective April 2, 2005. On February 2, 2006 her wage-loss compensation was adjusted
to reflect a weekly pay rate of $645.01.
On May 26, 2006 the Office issued a preliminary finding that an overpayment in
compensation in the amount of $860.51 had been created for the period April 16 through
30, 2007. The Office explained that the overpayment resulted because appellant had been paid
this amount by check dated May 20, 2005 but had already been issued two checks covering this
period. The Office found appellant without fault in the creation of the overpayment. Office
memoranda and computer print-outs contained in the record provide that on May 18, 2005
appellant was issued a check for $1,722.23 covering the period April 17 through May 14, 2005
and that this check was cashed, that on May 20, 2005 she was issued a check for $861.11
covering the period April 2 through 16, 2005 and that this check was cashed, and that on
May 27, 2005 she was issued a check for $860.51 covering the period April 16 through 30, 2005
and that this check was cashed.
On May 26, 2006 the Office issued a second preliminary finding that an overpayment in
compensation in the amount of $1,636.16 had been created for the period October 27 through
December 10, 2004. The Office explained that the overpayment resulted because appellant had
received sick and annual leave for the period November 6 through 24, 2004 and that the payment
for this period was based on an incorrect pay rate. The Office stated that she had received a total
of $3,369.21 in compensation for this period when she should have received $1,733.05, yielding
an overpayment in compensation of $1,636.16. Office forms and computer print-outs contained
1

The Office accepted that appellant sustained employment-related left eye corneal abrasion, right wrist sprain,
lumbar strain, multiple contusions of the trunk, right arm and right shoulder, open wound of the left knee, median
nerve injury of the right wrist and right shoulder impingement syndrome. She underwent surgical procedures to her
right wrist and right shoulder.

2

in the record note that appellant worked an average of 36.9 hours per week for at least one year
prior to her September 11, 2004 employment injury, for total earnings of $32,902.86 or a weekly
rate of $645.15, that for the period November 6 through 24, 2004 she received sick and annual
leave, and for the period October 27 through December 10, 2004 she was paid at a weekly pay
rate of $698.80 whereas the correct weekly pay rate was $645.01.
On June 25, 2006 appellant requested a prerecoupment hearing or teleconference
regarding the preliminary overpayment determinations and submitted an overpayment
questionnaire.2 By letter dated August 28, 2006, the employing establishment forwarded to the
Office a check for $43,336.20, funds appellant received as proceeds of a third-party recovery for
the September 11, 2004 employment injury. On February 20, 2007 an Office hearing
representative advised appellant that, because she had received a third-party settlement, she
should submit a new overpayment questionnaire and asked that she explain the $900.00 monthly
miscellaneous expenses claimed. The hearing was scheduled for March 21, 2007 and appellant
did not attend. On March 22, 2007 an Office rehabilitation counselor explained that appellant
had returned to work on March 21, 2007 in a full-time modified carrier position. By decision
dated April 4, 2007, an Office hearing representative finalized the overpayments in
compensation, finding appellant not at fault. The hearing representative noted that appellant did
not appear at the scheduled hearing and noted that, as she did not submit an additional
overpayment questionnaire or explain the $900.00 monthly miscellaneous expenses claimed, she
was not entitled to waiver.3
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act4 provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of duty.5 When an overpayment has been made to an individual
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.6
2

On the overpayment questionnaire appellant indicated that her income was $1,670.00 per month, that she had
zero cash, checking or savings and that her monthly expenses were $800.00 for rent, $300.00 for food, $300.00 for
clothing and $900.00 in miscellaneous expenses.
3

Office procedures provide that a hearing can be considered abandoned if the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the hearing. In cases involving prerecoupment
hearings, the Office will also issue a final decision on the overpayment, converting the format from an oral hearing
to a review of the written record, based on the available evidence. Office (FECA) Procedure Manual, Part 2 -Claims, Abandonment of Hearing Requests, 2.1601.6(e)(1) (January 1999). See D.F., 58 ECAB ___ (Docket No.
06-1815, issued November 27, 2006). As appellant did not request a postponement of the scheduled March 21,
2006 hearing, did not appear at the scheduled hearing and did not personally provide notification for such failure
within 10 days of the scheduled hearing, the hearing representative in this case properly issued a decision on a
review of the written record. Id.
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8102(a).

6

5 U.S.C. § 8129(a).

3

Under section 8101(4) of the Act, “monthly pay” means the monthly pay at the time of
injury, or the monthly pay at the time disability begins, or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is greater.7
Section 8114(d) of the Act provides that average annual earnings are determined: (1) if
the employee worked in the employment in which the employee was employed at the time of
injury during substantially the whole year immediately preceding the injury and the employment
was in a position for which an annual rate of pay -- (A) was fixed, the average annual earnings
are the rate of pay; or (B) was not fixed, the average annual earnings are the product obtained by
multiplying the daily wage for the particular employment, or the average thereof if the daily
wage has fluctuated, by 300 if the employee was employed on the basis of a six-day workweek,
280 if employed on the basis of a five and a half-day week and 260 if employed on the basis of a
five-day week.8
Office procedures state that the pay rate of part-time flexible employees whose earnings
fluctuate from week to week would be computed under section 8114(d)(1)(B). This section,
however, is limited to employees working at least five days per week.9
Section 8116 of the Act defines the limitations on the right to receive compensation
benefits. This section of the Act provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.10 Office regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.11
ANALYSIS -- ISSUE 1
Regarding the overpayment in the amount of $860.51 for the period April 16 to 30, 2005,
the record support that appellant received a duplicate payment for this amount. An overpayment
in compensation was therefore created.12 The Board finds, however, that the case is not in
posture for decision regarding the amount of the overpayment. The record indicates that the
duplicate payments were based on a pay rate for compensation purposes of $633.57. The record
supports that appellant worked substantially the entire year preceding the September 11, 2004
employment injury. The chart used to provide this information lists appellant’s total earnings for
a 50-week period beginning with the 21st pay period of 2003. There is no information, however,
7

5 U.S.C. § 8101(4); see Carl R. Benavidez, 56 ECAB 596 (2005).

8

5 U.S.C. § 8114(d); see Robert L. Curry, 53 ECAB 656 (2002).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4(c)(2)
(December 1995); see Janet A. Condon, 55 ECAB 591 (2004).
10

5 U.S.C. § 8116.

11

20 C.F.R. § 10.500; see Otha J. Brown, 56 ECAB 228 (2004).

12

See Lawrence J. Dubuque, 55 ECAB 667 (2004).

4

regarding the number of hours appellant worked during each of these weekly periods, and there
are no calculations to show how the hourly par rate of $17.48 or the weekly pay rate of $645.15
were determined or how it was determined that appellant worked 36.9 hours a week.13
Additionally, the record contains contradictory information regarding appellant’s pay rate with
hourly figures ranging from $17.11 to $17.48.
The Board therefore finds that the Office did not provide adequate findings and reasoning
for its determination of the amount of the overpayment in compensation based on appellant’s
receipt of a duplicate payment for the period April 16 to 30, 2005. The determination of pay
rates for compensation purposes requires a number of calculations and the proper determination
of the pay rate in this case would be pursuant to section 8114(d) of the Act.14 In this case, there
are no clear calculations to show that appellant’s pay rate was determined using this provision or
any other clear calculations to show how the pay rate was found. The Office did not explain why
the figures used were accurate and did not produce additional documentation, such as complete
employing establishment records, to establish that they were accurate.15
Regarding the overpayment in compensation in the amount of $1,636.16, the record
supports that appellant received both wage-loss compensation and sick and annual leave for the
period October 27 through December 10, 2004. A claimant is not entitled to receive
compensation for loss of wages for a period when there is no loss of wages, as in this case where
she received compensation in the form of sick and annual leave.16 However, for the reasons
stated above, the Board cannot determine if the correct pay rate for compensation purposes was
used to calculate the $1,636.16 overpayment.
The case must be remanded to the Office for further findings, supported by
documentation, regarding the correct pay rate for compensation purposes, and further
explanation of how the overpayments in compensation were determined, to be followed by an
appropriate decision.
In view of the Board’s findings regarding the first issue in this case, the issue of whether
the Office properly denied waiver of the overpayments need not be addressed.17

13

The Board notes that the calculations seem to be based on 51 weeks rather than the 50 weeks listed on the form.

14

Supra note 8.

15

See Paul M. Colosi, 56 ECAB 294 (2005).

16

See generally Danny E. Haley, 56 ECAB 393 (2005).

17

The Board notes that, where no further compensation benefits are due an individual, the Board does not have
jurisdiction and the recovery of an overpayment remains within the discretion of the Office. The Board’s
jurisdiction over recovery is limited to reviewing those cases where the Office seeks recovery from continuing
compensation under the Act. Terry A. Keister, 56 ECAB 559 (2005).

5

CONCLUSION
The Board finds that overpayments in compensation had been created for the periods
October 27 to December 10, 2004 and April 16 to 30, 2005 but that the case is not in posture for
decision regarding the amounts of the overpayments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 4, 2007 be affirmed in part, vacated in part, and the case
remanded to the Office for proceedings consistent with this opinion of the Board.
Issued: March 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, GRIDLEY POST
OFFICE, Gridley, CA, Employer
__________________________________________

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Appearances:
Norman F. Nivens, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0553
Issued: November 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 15, 2019, appellant through counsel, filed a timely appeal from a November 8,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated July 12, 2018, to the filing of
this

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.

appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 30, 2015 appellant, then a 54-year-old postmaster, filed an occupational
disease claim (Form CA-2) alleging that he sustained left shoulder pain and loss of range of motion
due to factors of his federal employment. He first became aware of his left shoulder condition and
realized it was related to factors of his federal employment on December 10, 2012. OWCP
accepted the claim for soft tissue lesion of left shoulder region.4
In an August 3, 2017 report, Dr. Robert Vogel, a Board-certified orthopedic surgeon,
utilized the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides)5 and opined that appellant had 16 percent permanent
impairment of the left upper extremity.
On August 23, 2017 and March 14, 2018 appellant filed schedule award claims (Form
CA-7).
In support of his claim, OWCP received a March 2, 2018 report from Dr. Joel A.
Weddington, a Board-certified orthopedic surgeon. Dr. Weddington utilized the sixth edition of
the A.M.A., Guides,6 to rate appellant’s permanent impairment due to loss of range of motion
(ROM). Dr. Weddington provided one set of measurements, and found that appellant had 14
percent permanent impairment of the left upper extremity due to loss of ROM.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. 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.
4

The statement of accepted facts indicates that OWCP accepted a traumatic injury claim under OWCP File No.
xxxxxx800 for a left shoulder injury which occurred on September 18, 2003 when appellant lifted a bucket of flats.
OWCP File No. xxxxxx800 was accepted for left rotator cuff tear, other affections of left shoulder region, left shoulder
tendinitis/bursitis. OWCP has not administratively combined OWCP File No. xxxxxx800 with OWCP File No.
xxxxxx122.
5

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

6

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

2

OWCP referred appellant to Dr. Arthur Auerbach, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a report dated April 27, 2018, Dr. Auerbach noted appellant’s
two accepted left shoulder injuries and related that appellant had undergone five left shoulder
surgical procedures. He reviewed a February 28, 2017 left shoulder magnetic resonance imaging
(MRI) arthrogram report from Dr. Phillip Sheldon, a Board-certified radiologist which revealed:
“(1) Repaired supraspinatus tendon is intact. Mild subdeltoid bursitis. (2) Fibers
of the distal aspect of the infraspinatus tendon are somewhat ill-defined. A portion
of this is due to artifact from prior surgical procedure. Tendon is presumed to be
intact as there is no extension of the joint fluid into this region. (3) Some fatty
replacement identified in both infraspinatus muscle and teres minor muscle. No
associated abnormalities in scapular notch. (4) Long head of biceps tendon not
identified and presumed to be completely torn and retracted. (Note: Had a biceps
tenodesis.) (5) Multiple hardware devices in the humeral head and a single device
in the glenoid.”
Dr. Auerbach determined that appellant had 34 percent permanent impairment of the left
upper extremity utilizing the A.M.A., Guides7 and the diagnosis-based impairment (DBI) method.
In forming his DBI rating, he referred to Table 15-5 of the shoulder regional grid,8 and noted that
appellant had undergone a left shoulder arthroplasty. Dr. Auerbach explained that appellant fell
into a category of class 3C, which had a default permanent impairment rating of 40 percent.
Applying the grade modifiers for functional history, physical examination, and clinical studies, he
concluded that appellant had 34 percent permanent impairment of the left upper extremity.
Dr. Auerbach also utilized the ROM method, provided three ROM measurements for appellant’s
left shoulder, and calculated 30 percent permanent impairment of the left upper extremity
impairment due to loss of ROM. He explained that pursuant to Table 15-34 at page 475, averaging
the three measurements for loss of ROM of the left shoulder, abduction at 47 degrees corresponded
to 6 percent impairment, flexion at 45 degrees corresponded to 9 percent impairment, extension at
46 degrees corresponded to 10 percent impairment, adduction at 25 degrees corresponded to 1
percent impairment, internal rotation at 90 degrees corresponded to 0 percent impairment, and
external rotation at 45 percent corresponded to 4 percent impairment, totaling 34 percent
permanent impairment.
In a June 22, 2018 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon and
district medical adviser (DMA), found that the report of Dr. Auerbach was flawed because he
indicated that appellant had a “shoulder replacement,” which was incorrect. He also found the
reports of Dr. Weddington and Dr. Vogel were flawed because ROM was only measured once.
The DMA referred to Table 15-59 and found that based on the mid-range value for a full-thickness
rotator cuff tear, and moving the award two places to the right, appellant would have seven percent
left upper extremity impairment, based on the net adjustment formula. He indicated that he utilized

7

Id.

8

Id. at 405.

9

Id. at 403.

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three sets of ROM measurements, referred to Table 15-34,10 and found that appellant was entitled
to 10 percent impairment to the left upper extremity for loss of ROM. The DMA related that
appellant had 110 degrees of flexion which corresponded with 3 percent impairment rating, 40
degrees of extension which corresponded with 1 percent impairment, 85 degrees of abduction
which corresponded with 3 percent impairment, 30 degrees of adduction which corresponded with
1 percent impairment, 70 degrees of external rotation which corresponded with 0 percent
impairment, and 55 degrees of internal rotation which corresponded with 2 percent impairment,
totaling 10 percent permanent impairment. He noted that maximum medical improvement (MMI)
was reached on August 3, 2017, the date of Dr. Vogel’s rating.
By decision dated July 12, 2018, OWCP granted appellant a schedule award for 10 percent
permanent impairment of the left upper extremity. It specifically noted that the weight of the
medical evidence was given to the DMA, who correctly applied the A.M.A., Guides.
On August 10, 2018 counsel requested reconsideration. He discussed the medical evidence
and argued that the DMA improperly rejected the report of the second opinion physician,
Dr. Auerbach, because he indicated that appellant had a shoulder replacement. Counsel noted that
appellant had several surgeries to his left shoulder joint to improve function. He argued that the
rejection of the second opinion physician’s report was not valid, and clarification should have been
sought. No new medical evidence was submitted with his request.
By decision dated November 8, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application.11
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.12

10

Id. at 475.

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

4

A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.13 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.14 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.15
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered counsel’s correspondence as a
request for reconsideration and not as a claim for an increased schedule award.16 The underlying
issue on reconsideration is whether the medical evidence demonstrates a greater permanent
impairment. Thus, the Board must determine whether appellant presented sufficient evidence or
argument regarding the extent of permanent impairment to warrant a merit review pursuant to
5 U.S.C. § 8128(a).17
The Board finds that counsel raised a relevant legal argument in his request for
reconsideration, which was not previously considered.
Counsel argued that the DMA rejected Dr. Auerbach’s second opinion report without
sufficient justification. He related that the DMA found that Dr. Auerbach had improperly rated
appellant for left “shoulder replacement” under the DBI method because the DMA defined
arthroplasty as total shoulder replacement. Counsel agreed that appellant had not undergone total
shoulder replacement, but he alleged that the term “arthroplasty” encompassed other surgical
procedures which involved surgical restoration of joint function either by repairing damaged
structures or by inserting an artificial joint. He also argued that the DMA improperly rejected
Dr. Auerbach’s three sets of ROM measurements in determining appellant’s permanent
impairment utilizing the ROM method. Counsel argued that OWCP should have sought
clarification from the second opinion physician, if the DMA found Dr. Auerbach’s report
insufficient.

13
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the integrated Federal Employees’
Compensation System. Id. at Chapter 2.1602.4b.
14

Id. at § 10.608(a); see also A.P., Docket No 19-0224 (issued July 11, 2019).

15

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

16

B.W., Docket No. 18-1415 (issued March 8, 2019).

17

S.W., Docket No. 18-1261 (issued February 22, 2019).

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The Board finds that appellant’s request for reconsideration raised relevant arguments not
previously considered or addressed by OWCP and are therefore sufficient to warrant reopening
the claim for further merit review. Pursuant to 20 C.F.R. § 10.606(b)(3), appellant is entitled to a
merit review of the claim. The case will be remanded to OWCP for an appropriate merit decision.18
CONCLUSION
The Board finds that appellant is entitled to a merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision.
Issued: November 8, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18
The Board also notes that on remand OWCP should combine OWCP File No. xxxxxx122 with OWCP File No.
xxxxxxx800.

6


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

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

Docket No. 07-2105
Issued: January 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated July 13, 2007 which found that his employment-related
hearing loss was not ratable for schedule award purposes. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. On appeal appellant contends that
he should be compensated for tinnitus.
ISSUE
The issue is whether appellant has a ratable employment-related hearing loss thereby
entitling him to a schedule award.
FACTUAL HISTORY
On January 23, 2007 appellant, then 54 years old, filed an occupational disease claim
alleging that he sustained a hearing loss due to his exposure to noise during his 34 years of

employment as a pipe fitter for the employing establishment.1 On the same date, he filed a claim
for a schedule award.
In a February 8, 2007 medical report, Dr. Gerald G. Randolph, a Board-certified
otolaryngologist, diagnosed appellant with bilateral sensorineural hearing loss. He noted that
appellant had a high-tone loss in the left ear entirely compatible with hearing loss due to past
noise exposure and a hearing loss in the mid frequencies in both ears which may have been
caused by past industrial noise exposure. Dr. Randolph noted that, when he applied the
American Medical Association, Guides to the Evaluation of Permanent Impairment’s formula
for determining percent of hearing loss, appellant had a ratable hearing loss of zero percent in
both ears. However, he did note that appellant had tinnitus which interfered with his ability to
understand communication and that he would accordingly recommend a two percent rating for
tinnitus. Finally, Dr. Randolph noted that appellant was a candidate for hearing aids. He based
his conclusion on an audiogram conducted on February 6, 2007 finding that testing at frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed the following loss: right
ear 5, 20, 30 and 30 decibels respectively and left ear 10, 10, 20 and 20 decibels, respectively.
Appellant also submitted the results of routine audiograms conducted during his employment.
In an April 26, 2007 memorandum, an audiologist for the employing establishment stated
that appellant had a nonratable sensorineural hearing loss consistent with noise and aging,
although left retrocochlear pathology had not been ruled out. He opined that appellant was not
yet a good hearing aid candidate due to the relative normalcy of his hearing within the primary
speech range and recommended controversion of his claim. Captain Bruce Christen, an
occupational medicine physician for the employing establishment, concurred with this
recommendation.
By letter dated May 7, 2007, the Office requested that Dr. Randolph review the statement
of accepted facts and prior audiograms and indicate whether appellant’s industrial noise exposure
from his federal employment caused or aggravated his hearing loss. In a May 29, 2007
addendum, Dr. Randolph noted that appellant’s hearing was normal in both ears at the time of his
earliest industrial audiogram on January 15, 1974; that appellant had significant industrial noise
exposure during his employment for the employing establishment from 1971 until the present
time; and that, between the 1974 audiogram and the February 6, 2007 audiogram, appellant’s
hearing had degenerated in both ears. He noted that the hearing loss, particularly in the left ear,
had an audiometric configuration compatible with hearing loss aggravated by noise exposure.
Therefore, Dr. Randolph concluded that, “on a more probable than not basis, [appellant’s]
hearing loss was caused by industrial noise exposure from federal employment.”
In a memorandum to the Office medical adviser dated June 6, 2007, the Office indicated
that it accepted that appellant’s hearing loss was caused by factors of his federal employment and
that he continued to be exposed to noise at the work site. The Office asked that the Office
medical adviser provide the date of maximum medical improvement and the permanent partial
impairment. In a report dated June 15, 2007, the Office medical adviser listed appellant’s date of
1

The evidence established that appellant worked for the employing establishment since 1971 and was exposed to
noise from air cutoff tools, air end prepping tools, sawsalls, bay flex grinders, brandsaws, hand grinders, deck
growlers, chipping air guns and vibrating tools from 8 to 12 hours a day. Hearing protection was worn.

2

maximum medical improvement as the date of the most recent valid audiogram, i.e.,
February 6, 2007. The Office medical adviser determined that, based on the results of the
February 6, 2007 audiogram, appellant had a binaural hearing loss of zero percent and was not
ratable for schedule award purposes.
By letter dated June 19, 2007, the Office accepted appellant’s claim for bilateral hearing
loss due to noise.
As a result of a referral by Dr. Randolph, appellant was seen by an audiologist who
concluded in a report dated June 20, 2007 that appellant should be fit with hearing aids. The
Office authorized hearing aids by letter dated June 21, 2007.
By decision dated July 13, 2007, the Office determined that appellant had not established
that the extent of his hearing loss was severe enough to be ratable for schedule award purposes.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 specifies the number of
weeks of compensation to be paid for permanent loss of use of specified members, functions and
organs of the body.3 The Act does not, however, specify the manner by which the percentage
loss of a member, function or organ shall be determined. The method used in making such a
determination is a matter which rests in the sounds discretion of the Office. 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.4 The Office evaluates industrial hearing loss in accordance with the standards
contained in the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the
losses at each frequency are added and averaged.6 The fence of 25 decibels is then deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.7 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural
loss is determined by calculating the loss in each year using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total divided by six to

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8107(c).

4

Renee M. Straubinger, 51 ECAB 667 (2000).

5

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

6

A.M.A., Guides at 250.

7

Id.

8

Id.

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arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.10
ANALYSIS
The Board finds that the evidence of record does not establish that appellant is entitled to
a schedule award based on his accepted bilateral hearing loss because the February 6, 2007
audiogram results of Dr. Randolph did not demonstrate ratable values. This audiogram
demonstrated record values at the frequency levels of 500, 1,000, 2,000 and 3,000 cps of 5, 20,
30 and 30 decibels in the left ear for a total of 85 decibels. This figure, when divided by 4,
results in an average hearing loss of 21.25 decibels. The average of 21.25 decibels, when
reduced by 25 decibels, results in a 0 percent monaural hearing loss to the left ear. The
frequency levels on the right at 500, 1,000, 2,000 and 3,000 cps revealed decibels losses of 10,
10, 20 and 20, for a total of 60 decibels. This figure, when divided by 4, results in an average
hearing loss of 15 decibels, which when reduced by the 25 decibel fence, also results in a 0
percent monaural hearing loss in the right ear. The Board finds that, as the February 6, 2007
audiogram did not demonstrate that appellant’s hearing loss was ratable, he was not entitled to a
schedule award for his accepted hearing loss condition.11
Finally, the Board notes that while the A.M.A., Guides provides that tinnitus, in the
presence of a unilateral or bilateral hearing impairment, may impair speech discrimination and
provides for up to a five percent rating for tinnitus in the presence of measurable hearing loss if
the tinnitus impacts the ability to perform activities of daily living.12 However, as appellant’s
hearing loss is not ratable, he would not be entitled to the additional award for tinnitus.13
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he is
entitled to a schedule award for his employment-related hearing loss as his hearing loss was not
ratable.

9

Id.

10

Horace L. Fuller, 53 ECAB 775 (2002).

11

The Board, however, has long recognized that, if a claimant’s employment-related hearing loss worsens in the
future, he or she may apply for a schedule award for any ratable impairment. See Robert E. Cullison, 55 ECAB
570 (2004).
12

A.M.A., Guides at 246.

13

See Juan A. Trevino, 54 ECAB 358 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 13, 2007 is affirmed.
Issued: January 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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