United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Egg Harbor Township, NJ, Employer
__________________________________________

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

Docket No. 09-2149
Issued: August 10, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 25, 2009 appellant filed a timely appeal from the September 23, 2008 and
June 18, 2009 merit decisions of the Office of Workers’ Compensation Programs. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits on March 17, 2008 on the grounds that she had no residuals of an
accepted left wrist condition; (2) whether appellant established that she had any continuing
employment-related disability or condition after that date; and (3) whether appellant established
reflex sympathetic dystrophy (RSD), complex regional pain syndrome (CRPS) or depression as
consequences of her accepted condition.

1

For Office decision issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

On appeal, appellant’s attorney asserts that the statement of accepted facts was deficient
because it did not describe her job duties and that the opinion of the impartial referee physician is
not entitled to special weight. Counsel contends that the medical evidence is sufficient to
establish that appellant has residuals of the employment injury and consequential conditions.
FACTUAL HISTORY
On May 30, 2003 the Office accepted that appellant, then a 43-year-old mail processor,
sustained tendinitis, tenosynovitis and a ganglion of the left wrist.2 Appellant began modified
duty. On December 5, 2005 Dr. Victor R. Frankel, a Board-certified orthopedic surgeon,
performed ganglion cyst excision of the left wrist. Appellant was placed on the periodic rolls.
She returned to modified duty on February 10, 2006.
In a February 2, 2007 report, Dr. Robert M. Dalsey, Board-certified in orthopedic and
hand surgery, noted appellant’s complaint of left upper extremity pain. On physical
examination, appellant had complaints and physical findings to suggest and recommended
further studies. February 15, 2007 left hand and wrist x-rays were reported as normal. A bone
scan that day noted slight increased uptake in the radial aspect of the proximal left wrist with no
additional findings. In a March 5, 2007 report, Dr. Dalsey reviewed the diagnostic results and
advised that they did not suggest CRPS. He diagnosed possible recurrent de Quervain’s
tendinitis, possible CRPS and failed ganglion cyst excision. A March 10, 2007 magnetic
resonance imaging scan of the left upper extremity demonstrated de Quervain’s tenosynovitis, a
ganglion cyst and effusion of the distal radial ulnar joint with a possible partial tear of the
triangular fibrocartilage. In a March 23, 2007 report, Dr. Morris E. Antebi, Board-certified in
anesthesiology and pain medicine, noted appellant’s complaint of constant sharp and shooting
pain in her left hand and wrist that radiated up her left forearm. Dr. Dalsey submitted additional
reports, reiterating the possibility of CRPS or fibromyalgia.
On April 10, 2007 appellant filed a recurrence of disability claim and stopped work on
April 16, 2007. On April 17, 2007 Dr. Dalsey performed resection of a ganglion cyst of the left
wrist with radial nerve exploration and neurolysis and resection of a small end-branch of the
radial nerve and first dorsal compartment release. On April 20, 2007 he noted that appellant was
doing well following surgery. Dr. Dalsey advised that her radiating arm pain was unrelated to
her tendinitis and ganglion cyst and needed separate evaluation and treatment. Appellant’s
proximal aches and pains could also be related to separate cervical disease or a primary shoulder
problem.
On May 11, 2007 the Office placed appellant on the periodic rolls in receipt of
compensation for total disability.
On June 19, 2007 the Office referred appellant to Dr. Edward Spellman, a Board-certified
neurologist, for a second opinion evaluation. In a July 19, 2007 report, Dr. Spellman noted his
review of the statement of accepted facts and medical record and her complaints of left upper
extremity pain, decreased sensation and tingling. He provided findings on physical examination
2

The accepted conditions have also been identified as enthesopathy of left wrist and carpus, left radial styloid
tenosynovitis and left ganglion of joint.

2

including decreased range of motion of the left shoulder and wrist with complaints of pain and
tenderness over the entire left upper extremity. Dr. Spellman diagnosed left arm, hand and wrist
pain and numbness and advised that there was no objective neurologic injury and no objective
sign of cervical radiculopathy, brachial plexopathy, peripheral nerve entrapment or RSD, noting
that appellant’s complaints could be related to orthopedic problems or from failed ganglion cyst
surgeries. He opined that she needed no further physical therapy and recommended referral to an
orthopedic specialist and pain control and management. Dr. Spellman stated that, because of her
pain complaints, appellant could not perform the full duties of a mail processor and, at the most,
could perform sedentary work with little use of the left arm. He concluded that her continued
disability was related to her employment injury.
Dr. Dalsey submitted reports addressing appellant’s continued complaints of diffuse pain
from the hand into the shoulder. He additionally diagnosed mild adhesive capsulitis of the
shoulder and advised that she was restricted in the use of the left arm. On August 2, 2007
Dr. Dalsey advised that Tinel’s test was negative with no hypersensitivity and no signs of
recurrent ganglion or recurrent tendinitis, with a great deal of possible psychological overlay to
her pain. He recommended counseling for chronic pain management to rule out possibly varying
CRPS.3
In an August 6, 2007 work capacity evaluation, Dr. Spellman advised that appellant could
not return to her usual job due to severe, constant left arm and wrist pain but could work three to
four hours a day with restrictions to her left upper extremity including a five-pound weight
restriction.
In August 2007, the Office referred appellant to Dr. Zohar Stark, Board-certified in
orthopedic surgery, for a second opinion evaluation.
In a September 18, 2007 report, Dr. Stark noted the history of injury, a review of the
medical records and appellant’s complaint of pain in her left upper extremity from her shoulder
to the tip of her finger. On physical examination, there was left upper extremity tenderness on
palpation over every point of the extremity. Dr. Stark noted that appellant would not perform
any motion with her left shoulder and would not let him perform passive motion, complaining
that it was too painful. Appellant held her left elbow in a fully extended position and would not
flex, pronate or supinate the forearm but elbow examination revealed no local tenderness.
Examination of her left wrist revealed a well-healed scar over the dorso-lateral aspect with
tenderness to palpation over every point of her wrist and hand. Dr. Stark stated that appellant
would not actively move or let him passively move her wrist and advised that there appeared to
be a reduced sensation to pinprick to all dermatomes of the left upper extremity with equal deep
tendon reflexes bilaterally. Tinel’s test was negative for entrapment of the median or ulnar
nerves at the wrists and at the ulnar nerves at the elbows. Dr. Stark noted that appellant was not
cooperative in assessing motion of the left upper extremity. After examining her and reviewing
the medical records, he found no objective findings of the accepted conditions. Dr. Stark advised
that the accepted conditions had resolved and that no further medical treatment was necessary.
He stated that she was malingering and could return to her regular duties as a mail processor. In
3

Dr. Dalsey referred appellant for diagnostic studies. A September 21, 2007 three-phase bone scan of both wrists
was reported as normal.

3

an attached work capacity evaluation, Dr. Stark advised that maximum medical improvement
had been reached and that appellant was fully capable of performing her regular job.
In a September 28, 2007 report, Dr. Donald B. Barone, an osteopath, noted that motor
examination demonstrated limited motor activity in the left fingers, wrist and hand. He advised
that the weakness appeared to be more pain related and that it was difficult to assess whether
there was a true muscle weakness. Dr. Barone suspected that appellant had CRPS/RSD and
possibly sensory radial neuropathy in the left forearm and hand and possible brachial plexopathy
underlying peripheral neuropathy and cervical radiculopathy. Diagnostic testing of October 16,
2007 demonstrated very mild left carpal tunnel syndrome.4
On October 19, 2007 appellant began therapy with Nicholas J. Mazzagatti, Ph.D., a
licensed clinical psychologist, who noted the history of injury, medical treatment and her
complaint that she could not function as she did prior to the injury. Dr. Mazzagatti diagnosed
generalized anxiety disorder, pain disorder associated with both psychological factors and a
general medical condition that were employment related. In reports dated October 8 and
November 26, 2007, Dr. Dalsey advised that it was his clinical impression that appellant did not
have a CRPS and that there could be a component of symptom magnification as noted by the
occupational therapist during testing and the variable evaluations in his office. He recommended
evaluation by another hand surgeon.
The Office found that a conflict in medical opinion between Dr. Dalsey and Dr. Stark
regarding whether appellant continued to have residuals and disability due to her accepted
conditions. On January 3, 2008 it referred her to Dr. Roy B. Friedenthal, a Board-certified
orthopedic surgeon, for an impartial medical evaluation.
Dr. Russell Ferstandig, a Board-certified psychiatrist, treated appellant on January 21,
2008 and noted that she appeared to be nearly catatonic and noted worsening symptomatology
since 2003. He found no gross evidence of psychosis, diagnosed major depressive disorder
secondary to injuries of the left upper extremity and provided medication therapy.
In a February 6, 2008 report, Dr. Friedenthal noted that appellant presented with a flat
affect and was very slow to respond both physically and verbally but understood his questions
and instructions. He reviewed the medical treatment records and statements of accepted facts.
Dr. Friedenthal listed the employment injury and appellant’s work history and noted her
complaint of constant pain in the left arm extending from the fingertips to the shoulder with a
constant cold, numb and tingling feeling involving the entire arm and hand. Appellant reported
that she did not use her left arm for any activities and had substituted her right arm for virtually
all activities. She moved the left shoulder slowly, complaining of pain down the entire arm into
the wrist, hand and fingers and that she appeared to be in severe distress. Dr. Friedenthal found
no crepitus on shoulder motion or evidence of impingement. Rotator cuff testing showed intact
function with give-way weakness in all planes and no measured upper arm atrophy with both
upper arms measuring 12½ inches in circumference. Full range of elbow motion was achieved
4

In reports dated August 3 and 31, September 28, October 26 and November 23, 2007, Alice Jones, a pain
management nurse practitioner, advised that appellant was seen for left wrist pain. She provided physical
examination findings, noting that there were no signs consistent with CRPS and diagnosed neuropathic pain.

4

slowly with no evidence of crepitus, joint effusion, soft tissue swelling or induration and pain on
all motions on the left. There was no measured forearm atrophy with forearm girth equaling 10
inches bilaterally. The wrists showed no deformity with a well-healed transverse dorsal scar on
the left wrist. There was no soft tissue swelling, warmth, erythema, crepitus, joint effusion or
soft tissue induration. Active range of motion of the wrist was severely limited and passive full
range of motion was gently achieved without crepitus. Tendon functions were intact with
strength actively limited in all planes. Finkelstein testing was not performed on the left because
of complaints of pain. There was no evidence of de Quervain’s syndrome and no effusion in the
first dorsal compartment. No ganglion cyst was palpable in any area and radial and ulnar
deviations and small joint motions were intact without crepitus.
Dr. Friedenthal stated that appellant actively moved the left hand extremely slowly,
reporting diffuse pain in the entire arm and found no evidence of tendon sheath stenosis into the
hand, no thenar or intrinsic muscle atrophy, no inflammatory changes into the fingers and no
dystrophic changes of the hands, with equal temperature, equal hair distribution, normal sweat
distribution and no skin changes. Circulation was intact with equal capillary filling.
Dr. Friedenthal noted that testing was difficult because of complaint of pain on the left but that
Adson’s test was negative. Neurologic evaluation revealed complaints of decreased sensation
and paresthesias throughout the entire left upper extremity without dermatomal pattern. Motor
testing was characterized by give-way weakness in all muscle groups without evidence of a
myotomal pattern of deficit. Deep tendon reflexes were full and symmetric. Tinel’s sign was
diffusely positive over the left upper extremity without physiologic pattern, including over the
radial and median nerve distribution and at the medial and lateral aspects of the elbow and
through the entire upper arm and forearm with paresthesias all going into the same distribution of
four fingers on the dorsum of the left hand.
Dr. Friedenthal diagnosed status post resection of ganglion cyst of the left wrist; status
post resection recurrent ganglion cyst, exploration and neural lysis radial nerve and release of
first dorsal compartment left wrist; early degenerative disc disease of the cervical spine and early
degenerative disease of the left shoulder. He noted that the left wrist ganglion cyst and
de Quervain’s syndrome of the left thumb were accepted in this case and that, while both
conditions appeared sporadically without relationship to specific injury, both had at times been
considered related to repetitive stress injuries and thus a causal relationship could exist.
Dr. Friedenthal found that, on an orthopedic basis, appellant could perform her regular duties,
noting that examination showed inconsistent and paradoxical findings with no objective
impairment, all positive findings being of a subjective nature only. He noted the absence of any
muscle atrophy, which, he opined, was inconsistent with the severe disuse described. There were
virtually no dystrophic changes evident on examination and no evidence of joint synovitis or
tenosynovitis at the time of his examination. Dr. Friedenthal advised that the ganglion cyst and
de Quervain’s syndrome had been appropriately treated with clinical resolution. The finding of
very mild left carpal tunnel syndrome was not consistent with appellant’s subjective complaints
or objective findings, with no evidence of injury to the carpal canal. Dr. Friedenthal stated that
her mild condition was most likely of a degenerative basis and was not of clinical importance
and was not a basis for disability. He advised that appellant had fully recovered from the
accepted conditions without residual impairment, noting that secondary gain and/or
psychological issues were active on the basis of the inconsistent and paradoxical findings with

5

clear symptom magnification. Dr. Friedenthal concluded that nonorthopedic causes of her
complaints and reported disability were beyond the scope of his examination.
On February 15, 2008 the Office proposed to terminate appellant’s compensation benefits
on the grounds that the medical weight of opinion was represented by Dr. Friedenthal and
established that she no longer had residuals or disability due to the accepted conditions.
In a February 4, 2008 report, Dr. Dalsey advised that on physical examination appellant
had no specific area of hypersensitivity and that, although she reported intermittent tingling, it
was diffuse and not clearly dermatomal. He stated that the electromyogram (EMG) finding of
very mild carpal tunnel syndrome was not characteristic of her current complaints, concluding
that there were no signs of recurrent ganglion, no signs of ongoing de Quervain’s tendinitis and
that it was unclear whether she had some type of associated CRPS. In a February 25, 2008
report, Dr. Ferstandig noted that appellant was markedly improved with medication but was still
very depressed. He advised that her pain was more suggestive of a neuropathic disease rather
than RSD and diagnosed post-traumatic stress disorder; major depression, single episode; and
likely neuropathic pain of medial and radial etiology.
In a decision dated March 17, 2008, the Office terminated appellant’s compensation
benefits.
On March 24, 2008 appellant, through her attorney, requested a hearing. In a
December 20, 2007 report, Dr. Antebi reiterated his previous findings and conclusions. In a
February 11, 2008 report, Dr. Ferstandig noted appellant’s continued treatment. On March 17,
2008 he advised that she demonstrated an “absolutely remarkably positive” response to
medication and was doing very well overall. Dr. Ferstandig reiterated his diagnoses. In an
April 16, 2008 report, Dr. Barone opined that he still suspected that appellant had CRPS/RSD,
stating that no evidence of any other etiology had emerged. In reports dated March 10 to
May 19, 2008, Dr. Dalsey provided physical examination findings, recommended updated EMG
studies and an evaluation by another hand surgeon. He advised that appellant could work eight
hours daily with strict left upper extremity restrictions.5
At the hearing, held on July 15, 2008, appellant testified that her duties were modified
following the December 2005 surgery. She described pain, numbness and tingling of the left
upper extremity. Counsel contended that the Office should have developed the psychological
component of her condition and that Dr. Friedenthal’s report was not sufficient to carry the
weight of the medical evidence. In an August 11, 2008 report, Dr. Dalsey provided findings on
physical examination, noting negative Finkelstein’s and Tinel’s testing. He advised that the
ganglion cyst excision with radial nerve neurolysis and first dorsal compartment release did not
appear to be currently causing any clinical symptoms, noting that appellant had been diagnosed
with an atypical CRPS. Dr. Dalsey stated that there had been a suspicion of median nerve
irritation but that appellant’s clinical complaints did not correlate with this.

5

Appellant also submitted evidence previously of record and additional treatment notes from Ms. Jones dated
January 18, February 15 and March 14, 2008.

6

By decision dated September 23, 2008, an Office hearing representative found that
Dr. Friedenthal and Dr. Dalsey agreed that the EMG findings of carpal tunnel syndrome were
minimal and that there was no probative medical evidence to establish that appellant had CRPS
or RSD causally related to the accepted employment injury. She found that Dr. Friedenthal’s
opinion was properly accorded the weight of medical opinion and affirmed the March 17, 2008
decision.
On April 2, 2009 appellant requested reconsideration and submitted additional evidence.6
A functional capacity evaluation (FCE) dated September 12, 2007 was reported as invalid due to
submaximal effort and noted that she exhibited overt symptom exaggeration and inappropriate
illness behavior.
In a February 9, 2009 report, Dr. Dalsey noted that appellant was right hand dominant
and reviewed his care and treatment beginning on February 2, 2007. Postoperatively appellant
continued to have pain and problems with her left wrist and persistent shoulder pain. Dr. Barone
and Dr. Antebi believed there was a CRPS and she was also seen by a counselor. Dr. Dalsey
opined that appellant reported limitations in the functional use of her left arm and that her
physical examination revealed limitations. It was unclear whether secondary gain was at issue or
a psychological component to her residual complaints and functional limitations; regardless, she
remained limited in the use of her left upper extremity and had permanent residuals, which
precluded her from work. Appellant’s condition had been stable and unchanged for more than a
year, her limitations were permanent and further improvement was not anticipated. Further,
surgery was not indicated on her left upper extremity and she would continue medical
management of chronic pain problems. Dr. Dalsey concluded that her history and medical
records supported a diagnosis of left upper extremity problems that had been attributed to her job
requirements as a postal employee. Despite revision surgery, permanent persistent pain and
functional limitations in the left upper extremity continued to prevent appellant from returning to
her previous employment. On April 30, 2009 Dr. Dalsey reviewed Dr. Friedenthal’s report and
agreed with his conclusion that the etiology of appellant’s residual subjective complaints and
functional impairment was unclear. He disagreed with Dr. Friedenthal’s assessment that she had
fully recovered from the accepted conditions without residuals. Dr. Dalsey agreed with
Dr. Friedenthal that her residual problems were not due to recurrent de Quervain’s tendinitis or a
dorsal ganglion cyst but that problems including myofascial syndrome and/or atypical CRPS and
psychological issues could be associated with musculoskeletal injury and subsequent surgery.
He reiterated that appellant was permanently limited from performing the essential duties of her
occupation.
In a merit decision dated June 18, 2009, the Office denied modification of the prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
6

Appellant initially filed an appeal with the Board in Docket No. 09-712. By letter dated April 2, 2009, counsel
withdrew the appeal. By order dated June 26, 2009, the Board dismissed the appeal.

7

without establishing that the disability ceased or that it was no longer related to the employment.7
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8
Section 8123(a) of the Federal Employees’ Compensation Act9 provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary of Labor shall appoint a third physician who shall make
an examination.10 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.11
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on March 17, 2008. The accepted conditions in this case are tendinitis,
tenosynovitis and ganglion of the left wrist. The Office determined that a conflict in medical
evidence had been created between the opinions of appellant’s treating physician, Dr. Dalsey,
and Dr. Stark, an Office referral physician, regarding the extent of appellant’s work-related
injuries and continuing disability. It then properly referred her to Dr. Friedenthal, Boardcertified in orthopedic surgery, for an impartial evaluation.
In a February 6, 2008 report, Dr. Friedenthal noted the history of injury, his review of the
medical records and appellant’s complaint of constant left upper extremity pain extending from
the shoulder to the fingertips. He advised that physical examination demonstrated inconsistent
and paradoxical findings that were of a subjective nature and that she had no objective findings.
Dr. Friedenthal noted that the absence of muscle atrophy which he opined was inconsistent with
the severe disuse described, stating that there were virtually no dystrophic changes evident on
examination and no evidence of joint synovitis or tenosynovitis. He advised that the EMG
findings of very mild carpal tunnel syndrome were not consistent with appellant’s subjective
complaints or objective findings, noting no evidence of injury to the carpal canal.
Dr. Friedenthal opined that the mild condition was most likely of a degenerative basis and was
not of clinical importance or a basis for disability, finding that secondary gain and/or
psychological issues were active on the basis of the inconsistent and paradoxical findings and
clear symptom magnification and concluding that appellant had fully recovered from the
accepted conditions without residual impairment to afford any disability.
The Board finds that, as Dr. Friedenthal provided a comprehensive, well-rationalized
opinion in which he clearly advised that any residuals of appellant’s accepted conditions had
7

Jaja K. Asaramo, 55 ECAB 200 (2004).

8

Id.

9

5 U.S.C. §§ 8101-8193.

10

Id. at § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

11

Manuel Gill, 52 ECAB 282 (2001).

8

resolved, his opinion is entitled to the special weight accorded an impartial examiner and
constitutes the weight of the medical evidence.12
The Board further finds that the medical evidence appellant subsequently submitted is
insufficient to overcome the weight accorded Dr. Friedenthal as an impartial medical specialist
regarding whether she had residuals of her accepted conditions. In his February and March 2008
reports, Dr. Ferstandig noted that she had improved with medication but was still very depressed,
advised that her pain was more suggestive of a neuropathic type rather than RSD and reiterated
his diagnoses. In an April 16, 2008 report, Dr. Barone advised that he suspected that appellant
had CRPS/RSD because no evidence of an etiology had emerged. Neither physician provided an
opinion regarding the accepted conditions in this case, whether they had resolved or whether she
could work. Their reports are therefore insufficient to overcome the weight of Dr. Friedenthal’s
report.
In a February 4, 2008 report, Dr. Dalsey advised that appellant had no specific area of
hypersensitivity on physical examination and that, although she reported intermittent tingling, it
was diffuse and not clearly dermatomal. He stated that the EMG finding of very mild carpal
tunnel syndrome was not characteristic of her current complaints, concluding that there were no
signs of recurrent ganglion, no signs of ongoing de Quervain’s tendinitis and that it was unclear
whether she had some type of associated CRPS. In reports dated from March 10 to August 11,
2008, Dr. Dalsey noted that appellant had been diagnosed with atypical CRPS and advised that
she could work eight hours a day with restrictions to her left upper extremity, further stating that,
although there had been a suspicion of median nerve irritation, her clinical symptoms did not
correlate. Reports from a physician who was on one side of a medical conflict that an impartial
specialist resolved, are generally insufficient to overcome the weight accorded to the report of
the impartial medical examiner or to create a new conflict.13 Dr. Dalsey had been on one side of
the conflict resolved by Dr. Friedenthal. His reports are not supportive that appellant continued
to be disabled from the accepted left upper extremity conditions.
The Board therefore concludes that Dr. Friedenthal’s opinion is entitled to the special
weight accorded an impartial medical examiner14 and the additional reports from Drs. Dalsey,
Ferstandig and Barone are insufficient to overcome the weight accorded him as an impartial
medical specialist regarding whether appellant had residuals of her accepted left upper extremity
conditions. The Office therefore properly terminated appellant’s compensation benefits on
March 17, 2008.15
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits on
March 17, 2008, the burden shifted to her to establish that she had any continuing disability
12

See Sharyn D. Bannick, 54 ECAB 537 (2003).

13

I.J., 59 ECAB ____ (Docket No. 07-2362, issued March 11, 2008).

14

See Sharyn D. Bannick, supra note 12.

15

Manuel Gill, supra note 11.

9

causally related to her accepted right upper extremity injury.16 To establish a causal relationship
between the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.17 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.18 Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable 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.19
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with her April 29,
2009 reconsideration request to establish that she continued to be disabled after March 17, 2008
due to the accepted left upper extremity conditions. With appellant’s reconsideration request,
she submitted a September 12, 2002 FCE. This, however, was reported as invalid due to
submaximal effort and therefore does not constitute probative medical evidence. Dr. Dalsey
provided treatment notes dated from September 22, 2008 to April 20, 2009. In a February 9,
2009 report, he advised that it was unclear whether there were secondary gain issues and a
psychological component to her residual complaints and functional limitations but that
regardless, she remained limited in the use of her left upper extremity and had permanent
disabilities which precluded her from returning to her previous employment. On April 30, 2009
Dr. Dalsey stated that he agreed with Dr. Friedenthal’s conclusion that the etiology of appellant’s
residual subjective complaints and functional impairment was unclear. The Board thus finds his
opinion regarding her continued disability equivocal.20 As stated above, it is appellant’s burden
to establish that she continued to be disabled due to the employment injury after March 17, 2008.
Under the Act, the term “disability” means the incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.21 Whether a particular
injury causes an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by a preponderance of the reliable, probative and

16

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

17

Jennifer Atkerson, 55 ECAB 317 (2004).

18

Id.

19

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

20

D.D., 57 ECAB 734 (2006) (medical opinions that are speculative or equivocal in character are of diminished
probative value).
21

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

10

substantial medical evidence22 and medical opinions that are speculative or equivocal in
character are of diminished probative value.23
The Board finds that the medical evidence is insufficient to establish that appellant
continues to have work-related disability due to the accepted left upper extremity conditions.
LEGAL PRECEDENT -- ISSUE 3
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though nonemployment related, is deemed, because of the chain of causation
to arise out of and in the course of employment and is compensable.24
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.25
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.26
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
22

Fereidoon Kharabi, 52 ECAB 291 (2001).

23

D.D., supra note 20.

24

S.S., 59 ECAB ____ (Docket No. 07-579, issued January 14, 2008).

25

Charles W. Downey, 54 ECAB 421 (2003).

26

Larson, The Law of Workers’ Compensation § 1300; see Downey supra note 25.

11

opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.27 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.28 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.29
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,30 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Act.31 There are situations where an injury
or illness has some connection with the employment but nevertheless does not come within
coverage under the Act.32 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.33 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.34
ANALYSIS -- ISSUE 3
The Board finds that appellant did not establish that she sustained a consequential
CRPS/RSD condition.
While Dr. Dalsey, an attending orthopedist, first reported in
February 2007 that she had physical findings suggestive of CRPS, in reports in October and
November 2007, he advised that it was his clinical impression that she did not have CRPS and
there could be a component of symptom magnification. In January 2008, however, he again
raised the possibility that appellant could have CRPS and concluded that there seemed to be a
psychological overlay which could explain why she did not have a typical presentation of CRPS.
In a February 4, 2008 report, Dr. Dalsey advised that it was unclear whether she had some type
of CRPS. Finally, in an April 30, 2009 report, he advised that he agreed with Dr. Friedenthal’s
conclusion that the etiology of appellant’s subjective complaints and functional impairment was
unclear but also stated that her problems could be caused by an atypical CRPS. Dr. Dalsey’s
27

Leslie C. Moore, 52 ECAB 132 (2000).

28

Dennis J. Balogh, 52 ECAB 232 (2001).

29

Id.

30

28 ECAB 125 (1976).

31

See supra note 9.

32

See Robert W. Johns, 51 ECAB 137 (1999).

33

Lillian Cutler, supra note 30.

34

J.F., 59 ECAB ____ (Docket No. 07-308, issued January 25, 2008).

12

opinion regarding the CRPS diagnosis and its cause is equivocal at best35 and is therefore
insufficient to establish that appellant sustained a consequential CRPS condition.
The Board also finds Dr. Barone’s reports insufficient to meet appellant’s burden. In
reports dated September 28, 2007 to April 16, 2008, Dr. Barone advised that he suspected that
she had CRPS/RSD and recommended an EMG study that demonstrated very mild left carpal
tunnel syndrome. He, however, did not discuss the EMG findings in relationship to a diagnosis
of CRPS and did not provide any affirmative evidence to support his conclusion.36 While
Dr. Antebi and Dr. Ferstandig diagnosed neuropathic pain, neither physician provided an
explanation regarding the cause of the condition.37 While Dr. Mazzagatti, an attending
psychologist, diagnosed a pain disorder associated with both psychological factors and a general
medical condition and advised that this was employment related, he too failed to provide a
rationalized explanation as he did not discuss the nature of the diagnosed condition or soundly
explain to a reasonable degree of medical certainty how the accepted conditions or other
employment activities caused or aggravated the pain condition.38
In a July 19, 2007 report, Dr. Spellman, an Office referral neurologist, found that there
was no objective evidence of neurological disease or RSD. In a September 18, 2007 report,
Dr. Stark, an Office referral orthopedic surgeon, advised that appellant was malingering and
could return to her usual work as a mail processor. Dr. Friedenthal, who was selected to perform
an impartial evaluation for the Office, did not diagnose CRPS or RSD in his February 6, 2008
report, advising that secondary gain and/or psychological issues were active and were the basis
of inconsistent and paradoxical physical findings with clear symptom magnification present.
The Board therefore concludes that appellant has not discharged her burden of proof to establish
that CRPS was caused by her employment-related left upper extremity conditions.39
Regarding the claimed consequential depression, beginning in October 2007,
Dr. Mazzagatti diagnosed depression, advising that it was employment related and
Dr. Ferstandig, an attending psychiatrist, diagnosed major depressive disorder secondary to
injuries of the left upper extremity. Neither, however, explained with sufficient rationale how
the claimed emotional condition was caused by the accepted left upper extremity conditions that
have since resolved or how the condition was caused by other employment factors. A claimant
bears the burden of proof to establish a claim for a consequential injury. As part of this burden,
he or she must present rationalized medical opinion evidence.40 Appellant did not do so in this
case.

35

D.D., supra note 20.

36

See A.D., 58 ECAB 149 (2006).

37

Willie M. Miller, 53 ECAB 697 (2002) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship).
38

J.M., 58 ECAB 303 (2007).

39

See generally, K.E., 60 ECAB ____ (Docket No. 08-1461, issued December 17, 2008).

40

Charles W. Downey, supra note 25.

13

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on March 17, 2008 on the grounds that she had no residuals of an
accepted left wrist conditions and that she did not establish that she had any continuing
employment-related disability or condition after that date due to her accepted condition. The
Board further finds that she did not meet her burden of proof to establish that she had a
CRPS/RSD condition or depression as a consequence of the accepted condition.41
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’' Compensation Appeals Board

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

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

41

The Board notes that, subsequent to the filing of this appeal with the Board, appellant, through his attorney,
requested reconsideration of the July 18, 2009 decision. It is well established that the Board and the Office may not
have concurrent jurisdiction over the same case. D.S., 58 ECAB 392 (2007).

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.N., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE NATIONAL GUARD, Phoenix, AZ,
Employer
__________________________________________

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

Docket No. 17-0917
Issued: September 7, 2017

Case Submitted on the Record

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

JURISDICTION
On March 20, 2017 appellant, filed a timely appeal from a February 15, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has more than four percent binaural (both ears) hearing
loss, for which he previously received a schedule award.
FACTUAL HISTORY
On May 19, 2015 appellant, then a 56-year-old retired automotive mechanic supervisor,
filed an occupational disease claim (Form CA-2) alleging permanent hearing loss due to
1

5 U.S.C. § 8101 et seq.

exposure at work. He first became aware of his hearing loss and realized that it was causally
related to his federal employment on April 1, 1995. Appellant was last exposed to conditions
alleged to have caused his disease or illness on December 31, 2014 which was the date of his
retirement.
In a May 15, 2015 narrative statement, appellant indicated that he had retired from the
employing establishment on December 31, 2014 with 29 years of service. He advised that he
participated in annual employing establishment testing for hearing loss. In 2005 appellant was
informed that he had a significant shift in his hearing loss and had bilateral sensorineural hearing
loss. From August 1985 to May 1994 he worked for the State of Arizona as a base building
maintenance worker. Appellant was exposed to noise from air condition compressors, base
electrical systems, facility generators, and air conditioning equipment for two to four hours a
day. Hearing protection was worn. From August 1985 to December 2014 appellant worked as a
National Guardsmen and performed various duties one weekend a month and two weeks a year.
From May 1994 to February 2002 he worked as a power support system mechanic. Appellant
was exposed to noise from diesel generators, gas turbine air carts, diesel driven hydraulic carts,
electrical compressors, power tools, and instruments and test equipment for generators. Noise
levels were recorded from 81.22 decibels to 105 decibels up to six hours a day. Hearing
protection was worn. From February 2002 to May 2009 appellant worked as an automotive
mechanic. He was exposed to noise from power tools, gas engines and diesel engines. Noise
levels were 98.4 decibels. Hearing protection was worn. From May 2009 to December 2014
appellant worked as an automotive mechanic supervisor. He was exposed to noise from cargo
and refueling aircraft and ground equipment. Sound levels reached 105 decibels. Appellant
wore earplugs and earmuffs.
The employing establishment provided information that included an August 28, 1996
Employer Annual Industrial Hygiene Survey, hearing conservation data sheets from 1994 to
2014, a noise dosimetry study, and employing establishment audiograms dated May 3, 1994 to
January 11, 2014, which showed progressive bilateral sensorineural hearing loss.
By letter dated June 9, 2015, OWCP advised appellant and the employing establishment
of the type of evidence needed to establish the claim.
OWCP received a master workplace exposure data summary dated May 21, 1992 and
April 1, 1996 and an annual industrial hygiene survey dated March 11, 1994 and
August 28, 1996.
Appellant submitted narrative statements dated June 17, 2015 further describing his
hearing loss history. He noted military service from January 1978 to June 1979. From 1979 to
1985 appellant was a civilian employee who performed various construction jobs including
setting concrete, welding, and elevator installation. He indicated that he wore earmuffs.
OWCP prepared an August 28, 2015 statement of accepted facts (SOAF), noting
appellant’s employment and noise exposure history. It indicated that the extent of the exposure
to occupational noise during his tenure in his position as an automotive mechanic supervisor was
not challenged by the employing establishment and that noise surveys provided by the
employing establishment showed hazardous noise exposure. OWCP accepted that appellant was
2

exposed to occupational noise levels above 85 decibels for the periods indicated above. It
advised that appellant filed a claim with the Department of Veterans Affairs for hearing loss
related to his military service which was accepted for bilateral hearing loss and tinnitus.
On September 22, 2015 OWCP referred appellant, together with a SOAF, to Dr. Peter A.
Weisskopf, a Board-certified otolaryngologist, for an otologic examination and an audiological
evaluation. In a December 2, 2015 report, Dr. Weisskopf noted examining appellant and
referenced appellant’s exposure to workplace noise and indicated that appellant retired in 2014.
He noted the earliest audiograms in 1994 demonstrated that appellant’s hearing has worsened
since his initial audiogram. Dr. Weisskopf advised that appellant’s current audiometric testing
demonstrates a prominent notch at 4,000 hertz (Hz), worse in the left ear at approximately 60
decibels. He opined that appellant’s description of his work suggested that his hearing loss was
noise related as he did not have any other related history that would provide this audiometric
profile. Dr. Weisskopf noted findings and opined that there was no evidence of other medical
conditions to explain appellant’s hearing loss. He indicated that the audiogram performed on his
behalf demonstrated an air conductive average of 21 decibels in the right ear with and 96 percent
speech discrimination and the left ear had a 20 decibels average with 96 percent discrimination.
Dr. Weisskopf determined that appellant had 5.6 percent monaural hearing loss in the right ear,
3.75 percent monaural hearing loss in the left ear, and 4.3 percent binaural loss.2 He opined that
given the audiometric profile and appellant’s history, his hearing loss was at least in part due to
noise exposure in his federal civilian employment. Appellant’s audiometric profile shows a very
prominent 4,000 Hz notch which is consistent with a noise-induced hearing loss. Dr. Weisskopf
recommended hearing protection when around noise. He advised that appellant would benefit
from hearing aids. Audiometric testing was performed for Dr. Weisskopf on October 15, 2015.
Testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed the
following: right ear 10, 15, 40, and 50 decibels; left ear 10, 25, 25, and 50 decibels.
On December 22, 2015 OWCP accepted appellant’s claim for binaural noise-induced
hearing loss due to noise exposure. It noted that the case had been forwarded to an OWCP
medical adviser to calculate the percentage of hearing loss.
On December 30, 2015 an OWCP medical adviser reviewed Dr. Weisskopf’s report of
December 2, 2015 and the audiometric test of October 12, 2015. He concluded that, in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment,3 (A.M.A., Guides), appellant had 4.1 percent binaural hearing loss
and referenced an attached worksheet. The medical adviser noted that he reviewed the
impairment rating provided by Dr. Weisskopf who noted that appellant sustained 4.3 percent
binaural hearing loss. He advised that he was not sure how Dr. Weisskopf arrived at his
calculations. The medical adviser reported that using the formula in the A.M.A., Guides, section
11.2F, appellant had a 4.1 percent binaural hearing loss. He indicated that the date of maximum
medical improvement was October 12, 2015, the date of the last audiogram. The medical adviser
recommended that hearing aids be authorized.
2

Dr. Weisskopf did not explain how he calculated these percentages.

3

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

3

On January 5, 2016 appellant filed a claim for a schedule award (Form CA-7).
In an October 17, 2016 memorandum, OWCP requested that the medical adviser provide
individual hearing loss percentages for both the right and left ears along with the binaural
hearing loss percentage in order to calculate the schedule award.
In a report dated October 25, 2016, the medical adviser indicated that, pursuant to the
A.M.A., Guides, Chapter 11, section 11.2, appellant had decibel sum hearing loss in the right ear
of 115 and in the left ear of 110. Utilizing Table 11-2 on pages 252 and 253 of the A.M.A.,
Guides, he calculated 5.6 percent impairment of the right ear and 3.8 percent impairment of the
left ear and 4.1 percent binaural hearing loss.
On January 27, 2017 appellant inquired about the handling of his compensation claim.
He indicated that he submitted his paperwork in October 2015 and had been waiting to resolve
matters pertaining to his impairment rating for hearing loss.
By decision dated February 15, 2017, OWCP found that appellant had 4.1 percent
(rounded to four percent) binaural hearing loss. The award was for eight weeks of
compensation, covering the period October 12 to December 6, 2015.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 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.8 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.9 The remaining
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

7

A.M.A., Guides 250 (6th ed. 2009).

8

Id.

9

Id.

4

amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.10
The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss and the total is
divided by six to arrive at the amount of the binaural hearing loss.11 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.13 OWCP may follow the advice
of its medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.14
ANALYSIS
OWCP accepted that appellant sustained binaural noise-induced hearing loss due to noise
exposure from his federal employment. An OWCP medical adviser applied OWCP’s
standardized procedures to the October 12, 2015 audiogram performed for Dr. Weisskopf in
calculating permanent impairment. The Board notes that testing for the right ear at the frequency
levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibels losses of 10, 15, 40,
and 50, respectively. These decibels were totaled at 115 and were divided by 4 to obtain an
average hearing loss at those cycles of 28.75 decibels. The average of 28.75 decibels was then
reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to equal 3.75
percent hearing loss for the right ear which was multiplied by the established factor of 1.5 to
compute a 5.625 percent monaural loss of hearing for the right ear. Testing for the left ear at the
frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibels losses of
10, 25, 25, and 50 respectively. These decibels were totaled at 110 and were divided by four to
obtain the average hearing loss at those cycles of 27.5 decibels. The average of 27.5 decibels
was then reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to 2.5
which was multiplied by the established factor of 1.5 to compute a 3.75 percent hearing loss for
the left ear. The lesser loss of 3.75 is multiplied by five, then added to the greater loss of 5.625

10

Id.

11

Id.

12

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

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
14

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

5

and the total, 24.375, is divided by six to arrive at the amount of the binaural hearing loss of
4.0625 percent which is rounded to four percent binaural hearing loss.15
The Board has carefully reviewed Dr. Weisskopf’s report of December 2, 2015, and notes
that he did not adequately explain how his determination of 4.3 percent binaural hearing loss was
reached in accordance with the relevant standards of the A.M.A., Guides.16 In his report,
Dr. Weisskopf’s calculated a 5.6 percent impairment of the right ear (when the correct amount
was 5.625 percent as explained above) and 3.75 percent impairment of the left ear. He then
arrived at 4.3 percent binaural hearing loss but did not provide his calculations in support of this
determination. Thus, Dr. Weisskopf’s finding of 4.3 binaural hearing loss was not reached in
accordance with the relevant standards of the A.M.A., Guides.17 In any event, even a properly
calculated 4.3 percent rating would be rounded down, as explained, to four percent binaural
impairment.18 Consequently, Dr. Weisskopf’s report does not provide any basis for greater
impairment than the four percent impairment previously awarded.
The Board finds that the medical evidence of record does not establish that appellant has
more than four percent binaural hearing loss. Under OWCP’s standardized procedures, there is
no basis on which to grant more than four percent binaural hearing loss.19
On appeal appellant asserts that his claim was not handled and processed properly and he
questioned whether OWCP’s medical adviser calculation of binaural hearing loss was accurate.
As explained above, Dr. Weisskopf’s October 12, 2015 audiogram supports that appellant has
four percent binaural hearing loss. There is no other current medical evidence from a physician
15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (January 2010)
(results should be rounded down for figures less than .5 and up for .5 and over). As noted, infra, the medical adviser
actually arrived at 4.1 percent binaural hearing loss as he rounded the monaural ratings from 5.625 percent to 5.6
percent, for the right ear, and 3.75 percent to 3.8 percent, for the left ear, in making his calculations under the
standardized formula. However, OWCP procedures provide that, in calculating a binaural loss, percentages should
not be rounded until the final percent for award purposes is obtained. Id. at 3.700.4(b)(2)(b) (January 2010). This
was harmless error as rounding of the final binaural percentage yields four percent permanent binaural impairment
under both calculations.
16

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

17

It is well established that, when the examining physician does not provide an estimate of impairment
conforming to the A.M.A., Guides, OWCP may rely on the impairment rating provided by a medical adviser. J.Q.,
59 ECAB 366 (2008).
18

See supra note 15.

19

The Board also notes that, if calculations based on the monaural hearing loss would result in greater
compensation, then the monaural hearing loss calculations should be used. E.S., 59 ECAB 249 (2007). Under
FECA, the maximum award for binaural hearing loss is 200 weeks of compensation while the maximum number of
weeks of compensation for hearing loss in one ear is 52 weeks. 5 U.S.C. § 8107(c)(13). In this case, the monaural
rating, for the right ear, 5.626 percent, would be rounded to six percent which, when multiplied by 52 weeks, would
yield 3.12 weeks of compensation. For the left ear, 3.75 percent would be rounded to four percent which, when
multiplied by 52 weeks, would yield 2.08 weeks of compensation. 3.12 weeks plus 2.08 weeks equals 5.20 weeks.
The binaural rating, four percent, yields eight weeks of compensation (.04 x 200). Since the binaural rating afforded
a greater number of weeks of compensation, this was properly used as the basis for OWCP’s schedule award.

6

in accordance with the relevant standards of the A.M.A., Guides, which establishes greater
impairment. Thus, there is no basis for paying an increased schedule award.20
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than four percent binaural (both ears) hearing
loss, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2017
Washington, DC

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

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

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

20

See A.M., Docket No. 09-1895 (issued April 23, 2010) (the terms of FECA are specific as to the method and
amount of payment of compensation; neither OWCP nor the Board has the authority to, enlarge upon the terms of
FECA, nor to make an award of benefits under any terms other than those specified in the statute).

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
C.R., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Detrick, MD, Employer
__________________________________________

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

Docket No. 16-0828
Issued: September 12, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 15, 2016 appellant filed a timely appeal from a February 8, 2016 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 hearing loss causally
related to factors of his federal employment.
FACTUAL HISTORY
On August 12, 2015 appellant, then a 62-year-old supervisory biological science lab
technician, filed an occupational disease claim (Form CA-2) alleging hearing loss causally
related to factors of his federal employment. He explained that he worked in cage wash and
caretaker positions from December 1984 to August 2009. Appellant indicated that he was
subjected to daily loud noises and that ear protection was not required until approximately three
1

5 U.S.C. § 8101 et seq.

to four years prior to the filing of his claim. He indicated that he first became aware that his
condition was caused by his federal employment on May 19, 2015.
The employing
establishment noted that appellant had been promoted to a supervisor in August 2009 and was
thereafter no longer subjected to daily noise exposure.
By letters dated August 19, 2015, OWCP requested additional information from appellant
and the employing establishment.
In a September 3, 2015 statement, appellant described his exposure to noise from
August 1972 to the present. He advised that in his most recent position, he continued to be
exposed to intermittent noise. Appellant indicated that on May 19, 2015, when tested as part of
his annual examination, he received an audiogram that revealed hearing loss. He advised that he
also had a claim with the Department of Veterans Affairs, filed November 19, 2012, for serviceconnected hearing loss.2
OWCP received an August 7, 2014 survey report for an animal husbandry position that
included noise exposure levels. The levels for cage washing were indicated to be at 85 decibels
or above. OWCP also received hearing conservation reports and audiograms dating from
February 14, 1985 through March 27, 2013, as well as other personnel records.
On September 10, 2015 OWCP received an undated response from K.E., the Chief,
Department of Animal Husbandry, at the employing establishment. K.E. confirmed that the
information provided by appellant was accurate and that he had worked with appellant since
early 1996. He confirmed that appellant had been with the employing establishment since
December 1984 and had worked in all areas of the building dealing with laboratory animal
husbandry. K.E. explained that appellant worked with the animal cage washing equipment, such
as rack and tunnel washers, and was responsible for moving cages and other equipment
throughout the facility. He noted that most of these items were made of stainless steel
construction and rolled on hard plastic rollers that could be very loud. K.E. explained that
appellant’s duties typically involved daily, prolonged exposure to the noise hazards as described
in the provided surveys. In most cases, the exposure would be eight hours per day, five days per
week. In many cases, the duties would also be performed on weekends and holidays, adding
more time to the standard workweek. K.E. advised that standard disposable foam earplugs were
provided. He also provided documentation related to appellant’s employment. K.E. advised that
appellant still had intermittent exposure to noise hazards for approximately two hours per day,
two to three days per week.
In a letter dated October 30, 2015, OWCP advised appellant that additional medical
evidence was needed. In a statement of accepted facts (SOAF), it accepted that from
August 1974 to July 1976 he worked for the U.S. Air Force in flight line maintenance and was
exposed to jet engine noise eight hours a day, five days a week. From December 20, 1984 to the
present, appellant worked for the employing establishment in various positions and was
subjected to various degrees of noise exposure.

2

The record reflects that appellant worked for the U.S. Air Force in flight line maintenance and was exposed to
jet engine noise eight hours a day, five days a week from 1974 to 1976 and had a service-connected disability.
Appellant also had a preexisting right ear condition.

2

The SOAF indicated that from December 20, 1984 to December 14, 1985 when appellant
worked as a laboratory worker, he was exposed to an average of between 84.2 and 92.7 decibels
of noise without ear protection; from December 15, 1985 to August 2, 2008 when he worked as
an animal caretaker, he was exposed to an average of between 84.2 and 92.7 decibels of noise
with mandatory hearing protection; and from August 3, 2008 to the present, when working as a
biological science laboratory technician (Animal), he was exposed to an average of 82 decibels
of noise with mandatory hearing protection. He was also exposed to jet engine noise eight hours
a day, five days a week when he worked for the U.S. Air Force in flight line maintenance from
August 1974 to July 1976.
By letter dated November 2, 2015, OWCP referred appellant for a second opinion
examination, along with a copy of the SOAF, a set of questions, and the medical record to
Dr. Bibhas C. Bandy, a Board-certified otolaryngologist.
In his November 17, 2015 report, Dr. Bandy noted that appellant was seen for evaluation
and management of his gradual hearing loss in both ears, worse in the right. He indicated that
appellant had suffered with continuous ringing noise in both ears for several years. Appellant
also had infrequent momentary loss of balance, but no objective vertigo and no hearing
fluctuation at the time of ataxia. Dr. Bandy noted appellant’s history of federal employment and
his exposure to frequent loud noise exposure up to eight hours daily. He advised that appellant
also had noise exposure in the Air Force. Dr. Bandy related that appellant had no other noise
trauma in his home life. Appellant noted a history of recurrent childhood otitis media and rightsided tympanoplasty surgery when he was a teenager. After surgery he had no otorrhea, or
drainage, from the right ear but hearing did not improve significantly. Dr. Bandy examined
appellant and diagnosed right-sided moderate-to-severe mixed hearing loss due to adhesive tight
middle ear cavity disease with possible ossicular chain disruption or loss of normal alignment.
Appellant had tympanosclerosis of right eardrum and middle ear cavity and possible stapes
fixation in right ear.
Dr. Bandy found bilateral high-tone moderate-to-severe sensorineural hearing loss due to
possible noise exposure, mild deviated nasal septum with chronic rhinitis, and tinnitus both ears.
He noted that appellant had significant hearing loss in the right ear, mixed type, with large air
bone gap. Dr. Bandy found a good cochlear reserve in both ears. When asked if appellant
showed sensorineural hearing loss in excess of what would be expected on the basis of
presbycusis, he responded: “yes to a certain extent.” Dr. Bandy responded “yes” with regard to
whether the sensorineural hearing loss was due to appellant’s federal employment. In comparing
appellant’s current hearing loss to that at the beginning of his exposure, he advised that “to a
certain extent” the hearing loss was in excess of what would normally be predicted on the basis
of presbycusis. Dr. Bandy recommended a hearing aid for the right ear. He indicated that he did
not see active right ear infection for which appellant needed any medical treatment. Audiometric
test results included verification by a certified audiologist on November 12, 2015. Dr. Bandy
found that appellant sustained hearing thresholds of the right ear at 500, 1,000, 2,000, and 3,000
cycles per second of 65, 60, 65, and 50 decibels, respectively and to the left ear at 500, 1,000,
2,000, and 3,000 cycles per second of 15, 20, 25, and 30 decibels, respectively.
OWCP requested that its district medical adviser (DMA) provide an opinion on
impairment. In a January 17, 2016 report, the DMA noted that, per the SOAF, prior to
appellant’s federal employment for the period August 1974 to July 1976, he had worked for the
3

U.S. Air Force in flight line maintenance where he was exposed to jet engine noise eight hours a
day, five days a week. He also noted that he had a history of right ear disease requiring a
tympanoplasty. The DMA explained that these two issues were responsible for the preexisting
right ear hearing loss observed when appellant was first tested by the employing establishment in
1985. He explained that it was important to note that appellant had worked for the employing
establishment for only two months before the first test was performed on February 14, 1985 and
advised that this was not enough exposure time to cause or aggravate noise-induced hearing loss.
The DMA related that, during the federal employment from December 20, 1984 to August 2,
1988, appellant was exposed to potentially hazardous noise levels (above 85 decibels). He also
noted that, from August 3, 2008 to the present, appellant was exposed to noise levels that were
below the hazardous limits (two hours a day at 82 decibels). The DMA also noted that hearing
tests from February 14, 1985 through April 1, 1999 revealed normal hearing in the left ear and
mild-to-moderate high frequency loss in the right ear. He reiterated that “this is a preexisting
condition and unrelated to [f]ederal [e]mployment).” The DMA noted that industrial hearing
tests from February 14, 1985 through April 1, 1991 provided no significant high frequency
change in either ear (as defined as 15 decibels or greater in any high frequency in either ear). He
indicated that any hearing changes after the 1991 testing was unrelated to federal employment as
federal workplace noise exposures were below hazardous noise levels. The DMA opined that,
based upon the medical evidence provided, appellant had preexisting conditions responsible for
the right ear hearing loss and his left ear hearing was normal. He also indicated that appellant’s
preexisting hearing loss was not aggravated by his federal workplace noise exposures.
By decision dated February 8, 2016, OWCP denied appellant’s claim for compensation as
the medical evidence of record failed to establish that the claimed condition was causally related
to the accepted federal employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that the 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. 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for

3

Supra note 1.

4

Gary J. Watling, 52 ECAB 357 (2001).

4

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by a claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable 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.5
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that the condition was caused, precipitated, or aggravated by his employment, is
sufficient to establish causal relationship.6 The mere fact that a disease or condition manifests
itself or worsens during a period of employment7 or that work activities produce symptoms
revelatory of an underlying condition8 does not raise an inference of causal relation between the
condition and the employment factors.
ANALYSIS
It is undisputed that appellant was exposed to work-related noise from December 20,
1984 to the present in varying levels. It is also undisputed that he worked for the U.S. Air Force
in flight line maintenance and was exposed to jet engine noise eight hours a day, five days a
week from 1974 to 1976 and that he had a service-connected disability. The record also reflects
that appellant had a preexisting right ear condition.
The second opinion physician Dr. Bandy provided a November 17, 2015 report in which
he found significant hearing loss in the right ear, mixed type, and a good cochlear reserve in both
ears. When asked if appellant showed sensorineural hearing loss in excess of what would be
expected on the basis of presbycusis, he responded: “yes to a certain extent.” Dr. Bandy also
responded “yes” in regard to whether the sensorineural hearing loss was due to his federal
employment and whether he recommended a hearing aid for the right ear.
On October 30, 2015 OWCP requested that its DMA review the SOAF and medical
records and provide an opinion on whether appellant sustained hearing loss causally related to
factors of his federal employment and, if so, whether it was ratable permanent impairment.
In his January 17, 2016 report, the DMA noted the history of injury, reviewed the
medical records, and reviewed the SOAF. He concluded that appellant’s hearing loss was not
5

Solomon Polen, 51 ECAB 341 (2000).

6

Robert G. Morris, 48 ECAB 238-39 (1996); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

William Nimitz, Jr., id.

8

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

5

caused or aggravated by his federal workplace noise exposures. The DMA noted that appellant
had a history of right ear disease requiring a tympanoplasty which he determined was responsible
for the preexisting right ear hearing loss as exhibited on the first audiometric test performed at
the employing establishment in 1985. As this first testing occurred only two months after
appellant commenced his federal employment, the DMA determined that the preexisting hearing
loss was not caused or aggravated by workplace exposures. He noted that no significant hearing
loss had occurred between 1985 and 1991 based upon audiometric testing. The DMA
commented that from December 20, 1984 to August 2, 1988 claimant was exposed to hazardous
noise and that after 1991 he was not exposed to hazardous noise levels. He opined that any
changes to appellant’s hearing after the 1991 testing were unrelated to federal employment
factors because the workplace exposures to noise were below hazardous noise levels.
The Board finds that the opinion of the DMA did not fully account for the noise
exposures as set forth in the SOAF. The SOAF indicated that from December 20, 1984 to
December 14, 1985 when appellant worked as a laboratory worker, he was exposed to an
average of between 84.2 and 92.7 decibels of noise without ear protection; from December 15,
1985 to August 2, 2008 when he worked as an animal caretaker, he was exposed to an average of
between 84.2 and 92.7 decibels of noise with mandatory hearing protection; and from August 3,
2008 to the present, when working as a biological science laboratory technician (Animal) he was
exposed to an average of 82 decibels of noise with mandatory hearing protection. He was also
exposed to jet engine noise eight hours a day, five days a week from August 1974 to July 1976
when working for the U.S. Airforce. OWCP’s DMA did not account for each of these noted
periods of noise exposure, nor did he explain whether such exposures were sufficient to cause or
aggravate hearing loss.
It is well established that a physician’s opinion must be based on a complete and accurate
factual and medical background. When OWCP sends medical records and a SOAF to its DMA
and provides a list of questions for resolution, that physician’s opinion must be based on a
complete and accurate factual and medical background.9 Here, the DMA did not base his
decision on the SOAF.
To assure that a report of a medical specialist is based upon an accurate factual
background, OWCP provides information to the physician through the preparation of a SOAF.10
Its procedures provide the necessary information to be contained within the SOAF in order to
provide the physician with a complete and accurate factual history upon which to base his or her
opinion.11 When the physician renders a medical opinion based on an incomplete or inaccurate
history, or does not use the SOAF as the framework in forming his or her opinion, the probative
value of the opinion is diminished.12

9

V.C., Docket No. 14-1912 (issued September 22, 2015).

10

See A.T., Docket No. 14-153 (issued July 2, 2014).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
12

See A.R., Docket No. 11-692 (issued November 18, 2011); Willa M. Frazier, 55 ECAB 379 (2004).

6

The Board thus finds that the January 17, 2016 report of OWCP’s medical adviser is
insufficient on the issue of causal relationship and permanent impairment because the medical
opinion is not based on the SOAF. The Board notes the second opinion physician, Dr. Bandy,
advised that appellant’s hearing loss was caused or aggravated by appellant’s employment and
indicated that there were findings in excess of that expected from presbycusis.
It is well established that proceedings under FECA are not adversarial in nature and,
while the claimant has the burden of proof to establish entitlement to compensation, OWCP
shares the responsibility in the development of the evidence.13 Thus, the Board finds that this
case is not in posture for decision and must be remanded for further development. After such
further development as it deems necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: September 12, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New Orleans, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1261
Issued: November 4, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On April 30, 2013 appellant filed a timely appeal from a February 21, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied her recurrence claim. The
Board docketed the appeal as No. 13-1261.1
The Board has duly reviewed the record and finds that the case is not in posture for
decision. By decision dated April 27, 2012, OWCP reduced appellant’s compensation based on
her actual earnings as a clerk in a modified, sedentary position. On August 6, 2012 she filed a

1

On April 27, 2005 appellant, a nurse, sustained employment-related lumbar and neck strains while lifting a
patient. She received compensation for temporary total disability on the periodic rolls, and on July 20, 2006
received a voluntary separation incentive payment in the amount of $25,000.00, with a net payment of $16,760.01.
The case has previously been before the Board. In decisions dated December 11, 2007 and May 9, 2008, the Board
found that appellant received an overpayment of compensation but that the case was not in posture for decision
regarding the amount of the overpayment. L.J., 59 ECAB 264 (2007); Docket No. 08-1958 (issued May 9, 2008).
In an October 1, 2010 decision, the Board found that appellant received an overpayment of compensation in the
amount of $20,312.64 and that OWCP properly denied waiver and required repayment of the overpayment by
deducting $250.00 each period from appellant’s continuing compensation payments. Docket No. 10-510 (issued
October 1, 2010). Appellant returned to work on November 20, 2011 but stopped work on February 28, 2012.

recurrence claim.2 By decision dated February 21, 2013, OWCP denied appellant’s recurrence
claim on the grounds that the medical evidence was insufficient to establish that her accepted
condition had worsened.
As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on
April 27, 2012. It is well established that a claimant may establish that a modification of a wageearning capacity is warranted if there is a material change in the nature and extent of an injuryrelated condition, or a showing that the original determination was, in fact, erroneous.3
Appellant’s submission of a recurrence claim on August 6, 2012 for a recurrence of disability on
February 28, 2012 should thus be regarded as a request for modification of the wage-earning
capacity determination. The Board has held that, when a wage-earning capacity determination
has been issued and appellant submits evidence with respect to disability for work, OWCP must
evaluate the evidence to determine if modification of wage-earning capacity is warranted.4
Rather, in this case, in its February 21, 2013 decision, OWCP adjudicated the claim as a
recurrence.
The Board finds that OWCP should have determined whether appellant had established
that the wage-earning capacity determination should be modified.5 The Board will therefore
remand the case to OWCP for proper adjudication, to be followed by an appropriate merit
decision to preserve appellant’s appeal rights.

2

Id. The record also indicates that appellant filed a claim for carpal tunnel syndrome, adjudicated separately by
OWCP.
3

P.C., 58 ECAB 405 (2007).

4

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

5

F.B., Docket No. 09-99 (issued July 21, 2010).
December 21, 2012).

2

See also M.D., Docket No. 12-1317 (issued

IT IS HEREBY ORDERED THAT the February 21, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: November 4, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3