United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES, JR., VETERANS MEDICAL
CENTER, Hines, IL, Employer
__________________________________________

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

Docket No. 09-677
Issued: December 2, 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 January 9, 2009 appellant filed a timely appeal from the July 8, 2008 merit decision
of the Office of Workers’ Compensation Programs reducing her compensation and a
December 9, 2008 nonmerit decision denying her request for a hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she continued to participate
in vocational rehabilitation efforts; and (2) whether the Office properly denied her request for a
hearing.
FACTUAL HISTORY
On September 29, 1993 appellant, then a 36-year-old housekeeping aid, injured her right
hand while taking the trash bag out of a 30-gallon can.
She stopped work on

September 30, 1993. The Office accepted the claim for radial-ulnar dislocation of the right arm,
tenosynovitis of the right hand and wrist, internal derangement and triangular fibrocartilage tear
and commenced payment of temporary total disability compensation. Appellant underwent an
authorized arthroscopic surgery of the wrist on March 21, 1994 and eventually returned to fullduty employment. On June 4, 2002 the Office accepted her claim of recurrence of total disability
beginning April 22, 2002. Appellant eventually returned to work as a surgical technician. She
last worked on December 16, 2005, when the employing establishment terminated her because
she was not medically capable of performing her duties. The Office placed appellant on its
periodic compensation rolls.
On June 26, 2006 appellant underwent a functional capacity evaluation. The July 21,
2006 functional capacity evaluation report indicated that she was capable of working light level
physical demand requirements as defined by the Department of Labor’s Dictionary of
Occupational Titles with restrictions on lifting, carrying, bilateral and unilateral pushing/pulling
and writing to limit stress placed on her right wrist. On July 24, 2006 appellant’s treating
physician, Dr. Paul T. Prinz, a Board-certified orthopedic surgeon specializing in hand surgery,
agreed with physical restrictions recommended in the functional capacity evaluation and advised
that the restrictions were permanent.
On August 21, 2006 the Office referred appellant for vocational rehabilitation services to
assist in her return to work. It advised her that she was required to cooperate with rehabilitation
activities or her compensation could be terminated or reduced. On February 2, 2007 the
vocational rehabilitation counselor provided appellant a rehabilitation placement plan in which
the position of pharmacy technician assistant, DOT No. 074-382.010, was identified as one of
the job goals.1 Appellant and the rehabilitation counselor signed the plan. The rehabilitation
counselor indicated that the employing establishment would not hire appellant. On April 9, 2007
he advised the Office that appellant had failed to submit the required job search logs. The
rehabilitation counselor noted that appellant had had an extended virus but, since her recovery,
had halted job search activity. On April 12, 2007 he informed the Office that appellant
unequivocally stated that she would not consider, pursue, search or accept any work that was not
with the United States Government. In light of this, the rehabilitation counselor recommended
service closure. In an April 25, 2007 report, he again recommended service closure and noted
that appellant had no interest in working outside the Federal Government.
By letter to appellant dated April 26, 2007, the Office noted that appellant had
discontinued good faith participation in an Office-approved job placement program. Appellant
was accorded 30 days from the date of the letter to either resume a good faith effort in the
placement program or show good cause for discontinuing the placement effort. She was advised
that, if she did not take any action within 30 days from the date of the letter, the Office would
reduce her compensation to reflect her wage-earning capacity in a job which her rehabilitation
counselor had found to be within her restrictions and abilities. It noted that the medical and
factual evidence of record reflected that appellant was able to perform the duties of a surgical
instrument central supply and pharmacy technician assistant. Appellant did not respond.

1

The plan also identified the position of surgical instrument central supply as a goal.

2

On May 23, 2007 vocational rehabilitation services were closed due to appellant’s failure
to cooperate or provide any employer contacts. The closing report indicated that services were
closed as appellant remained noncompliant and continued to express no interest in employment
outside the United States Government. The rehabilitation counselor also indicated that, in any
event, he would no longer provide services as his company was terminating its business
relationship with the Office.
On November 16, 2007 the Office noted that the previous rehabilitation counselor did
not complete a labor market survey for the targeted positions in the rehabilitation plan and that a
new counselor would complete the survey. In a December 15, 2007 report, the vocational
rehabilitation counselor conducted a labor market study for the identified position of pharmacy
technician. The Dictionary of Occupational Titles (DOT) describes the position of pharmacy
technician, number 074-382.010, as: performs any combination of following duties to assist
pharmacist (medical serv.) 074.161-010 in hospital pharmacy or retail establishment: mixes
pharmaceutical preparations, fills bottles with prescribed tablets and capsules, and types labels
for bottles; assists pharmacist (medical serv.) to prepare and dispense medication; receives and
stores incoming supplies; counts stock and enters data in computer to maintain inventory
records; processes records of medication and equipment dispensed to hospital patient, computes
charges, and enters data in computer; prepares intravenous (IV) packs, using sterile technique,
under supervision of hospital pharmacist; and cleans equipment and sterilizes glassware
according to prescribed methods. The Dictionary of Occupational Titles describes the physical
requirements as light work exerting up to 20 pounds of force occasionally and/or up to 10 pounds
of force frequently, and a negligible amount of force constantly. The vocational rehabilitation
counselor found the position available in sufficient numbers within a 50-mile driving radius from
appellant’s home. The rehabilitation counselor further noted that Walgreens and CVS
pharmacies have paid on-the-job training with assistance towards certification. Licensure
involves a background check and a fee of $25.00 to $40.00. Annual salary wages were provided
from various sources. In a January 24, 2007 report, the vocational rehabilitation counselor
advised the position of pharmacy technician assistant was medically and vocationally suitable for
appellant. On February 15, 2008 the rehabilitation counselor noted that, following completion of
the labor market survey, the file was being closed at the request of the Office. The rehabilitation
counselor provided an April 7, 2008, updated job classification sheet, Form CA-66, noting the
job requirements for a pharmacy technician, indicating that the job remained available in
appellant’s commuting area and noting the average wages for the position.
In a May 16, 2008 letter, the Office proposed to reduce appellant’s compensation for
wage loss due to her failure to continue participation in the reemployment efforts in the
vocational rehabilitation program. It noted that the medical and factual evidence established that
appellant was no longer totally disabled and that she had the capacity to earn wages as a
pharmacy technician, DOT No. 074-382.010 at the rate of $511.54 per week. It attached the
Form CA-816 showing the gross amount of weekly compensation based upon her wage-earning
capacity in the identified position. Appellant was afforded 30 days from the date of the letter to
submit additional evidence or argument regarding her capacity to earn wages in the position
described.
In a May 23, 2008 letter, appellant disagreed with the May 16, 2008 proposed action.
She contended that she continued to be totally disabled and that the pharmacy technician position

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was not vocationally suitable. Appellant further stated that she did cooperate with the vocational
rehabilitation program. She indicated that when she was told about the pharmacy technician
position her research at Wal-Mart, CVS Drugs, Walgreens and hospitals indicated that she had to
complete a pharmacy technician program and pass the state certification test.
Medical reports from Dr. Prinz indicated that appellant received injections into her right
wrist and elbow on February 14, 2008 for recurrent lateral epicondylitis and right-sided recurrent
ulnar-sided wrist pain. Copies of the February 14, 2008, July 30, 2007 x-ray reports of
appellant’s right wrist and elbow were also provided.
By decision dated July 8, 2008, the Office reduced appellant’s compensation under
5 U.S.C. § 8113(b) and 5 U.S.C. § 8104 effective July 8, 2008 to reflect her loss of wage-earning
capacity had she continued to participate in vocational rehabilitation efforts. It determined that
appellant had failed, without good cause, to undergo vocational rehabilitation as directed. With
respect to her wage-earning capacity, the Office further found that, if appellant had participated
in good faith in vocational rehabilitation, she would have been able to perform the position of
pharmacy technician. It reduced appellant’s compensation based on what her wage-earning
capacity would have been had she cooperated with vocational rehabilitation efforts. Based upon
the residuals of her injury and considering all significant preexisting impairments and pertinent
nonmedical factors, the Office found that, if appellant had participated in good faith in vocational
rehabilitation, she would been able to perform the position of pharmacy technician.2
On August 7, 2008 and postmarked August 30, 2008, appellant requested an oral hearing,
in the form of a telephonic hearing, before the Office’s Branch of Hearings and Review.
Additional reports from Dr. Prinz were received.
By decision dated December 9, 2008, the Office denied appellant’s oral hearing request
finding that it was not filed within 30 days. It exercised its discretion and determined that her
case could be equally well addressed by requesting reconsideration and submitting evidence not
previously considered.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened before it may terminate or modify compensation benefits.3 Section 8113(b)
of the Federal Employees’ Compensation Act provides that, if an individual, without good cause,
fails to apply for and undergo vocational rehabilitation when so directed under section 8104 of
the Act, the Office, after finding that in the absence of the failure the wage-earning capacity of
the individual would probably have substantially increased, may reduce prospectively the
monetary compensation of the individual in accordance with what would probably have been his

2

The Office used the Shadrick formula (derived from Albert Shadrick, 5 ECAB 376 (1953)) to calculate
appellant’s wage-earning capacity. This calculation included a figure for the amount appellant would have earned as
a pharmacy technician.
3

Betty F. Wade, 37 ECAB 556, 565 (1986).

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or her wage-earning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Office.4
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions the
Office will take when an employee without good cause fails or refuses to apply for, undergo,
participate in or continue to participate in a vocational rehabilitation effort when so directed.
Section 10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, [the Office] will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. [It] will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with the [Office] nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the
direction of [the Office].”5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained radial-ulnar dislocation of the right arm,
tenosynovitis of the right hand and wrist, and internal derangement and triangular fibrocartilage
tear as a result of her September 30, 1993 employment injury. On July 24, 2006 Dr. Prinz,
appellant’s attending hand surgeon, confirmed that the physical restrictions recommended in the
June 26, 2006 functional capacity evaluation were appropriate and permanent.
Appellant began participating in a vocational rehabilitation plan but the Board finds that
appellant later refused to participate in the plan. The Office initiated vocational rehabilitation
efforts on August 21, 2006 and advised appellant that she was required to cooperate with
rehabilitation activities or her compensation could be terminated or reduced. On February 2,
2007 appellant and the rehabilitation counselor agreed to pursue a rehabilitation plan in which
appellant’s employment as a pharmacy technician was a goal. Records from the vocational
rehabilitation counselor reflect that in April 2007 appellant failed to engage in, consider, search
or accept any employment that was not with the Federal Government. A warning letter was sent
to appellant on April 26, 2007 advising her of the penalties involved in not cooperating with the
rehabilitation counselor. The letter also provided appellant an opportunity to cooperate.
Appellant however did not respond to the letter. While appellant may have preferred to be
reemployed by the Federal Government, the main purpose of a rehabilitation program is to assist
returning appellant to gainful employment consistent with her skills and abilities in either the
public or private sector. The Office subsequently had a rehabilitation counselor prepare a labor
market survey which confirmed the availability and wage rate of a pharmacy technician.
Following this, the Office on May 16, 2008 proposed to reduce her compensation due to her
failure to participate in vocational rehabilitation.

4

5 U.S.C. § 8113(b).

5

20 C.F.R. § 10.519(a).

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The Board finds that appellant did not show good cause for failure to participate in her
vocational rehabilitation plan. The medical evidence indicates that Dr. Prinz agreed with the
restrictions recommended in the June 26, 2006 functional capacity evaluation. Although
appellant underwent subsequent treatment for her right wrist and elbow, Dr. Prinz did not
provide an opinion indicating any change in appellant’s work restrictions or that appellant was
unable to participate in vocational rehabilitation. There is no other evidence that appellant’s
failure to fully participate in the rehabilitation program was based on good cause.6 While
appellant contended that Wal-Mart, CVS Drugs, Walgreens and various hospitals required
training and passing of the state examination for the position, the vocational rehabilitation
counselor had indicated in the December 15, 2007 labor market study that Walgreens and CVS
pharmacies have paid, on-the-job training with assistance towards certification. Her reservations
about the pharmacy technician position were not otherwise supported by any probative evidence.
Thus, appellant’s contentions are not valid.
The Office properly found that the reduction of appellant’s compensation should be based
on the determination that she probably would have been able to earn wages as a pharmacy
technician if she had not failed to participate in her vocational rehabilitation program.7 For these
reasons, it properly reduced appellant’s compensation under 5 U.S.C. § 8113(b) to reflect her
loss of wage-earning capacity had she continued to participate in vocational rehabilitation
efforts.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant not satisfied with a decision of the
Office is entitled to a hearing before an Office hearing representative when the request is made
within 30 days after issuance of the Office’s decision.8 Under the implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to a hearing by
writing to the address specified in the decision within 30 days (as determined by postmark or
other carrier’s date marking) of the date of the decision for which a hearing is sought.9 If the
request is not made within 30 days or if it is made after a reconsideration request, a claimant is
not entitled to a hearing or a review of the written record as a matter of right.10
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing. The Office’s procedures, which require the
6

See Michael D. Snay, 45 ECAB 403, 410-12 (1994).

7

The rehabilitation specialist found that the position of pharmacy technician was reasonably available in
appellant’s commuting area with weekly pay of $511.54. The Office properly applied the Shadrick formula to
calculate appellant’s compensation based on the new wage-earning capacity determination.
8

5 U.S.C. § 8124(b)(1).

9

20 C.F.R. § 10.616(a); 5 U.S.C. § 8124(b)(1).

10

Teresa Valle, 57 ECAB 542 (2006); 20 C.F.R. § 10.616(b).

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Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.11
ANALYSIS -- ISSUE 2
The Office reduced appellant’s compensation on July 8, 2008. Appellant’s request for an
oral hearing, in the form of a telephonic hearing, was postmarked August 30, 2008. Because the
hearing request was made more than 30 days after the July 8, 2008 decision, the Board finds that
the Office properly denied her request for a hearing as untimely filed. Appellant is not entitled to
a hearing as a matter of right. The Board has held that section 8124(b)(1) is unequivocal in
setting forth the time limitation in requests for a hearing.12
The Office exercised its discretionary authority under section 8124 in considering
whether to grant a hearing. It found that appellant’s request could be equally well addressed
through a request for reconsideration under section 8128 and the submission of new evidence.
The Board has held that it is an appropriate exercise of discretion for the Office to apprise
appellant of the right to further proceedings under the reconsideration provisions of section
8128.13 The Board finds that the Office properly exercised its discretion in denying appellant’s
request for an oral hearing as untimely.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect her loss of wage-earning capacity had she continued to participate
in vocational rehabilitation efforts. The Board further finds that the Office properly denied
appellant’s request for a hearing.

11

D.E., 59 ECAB ___ (Docket No. 07-2334, issued April 11, 2008).

12

Ella M. Garner, 36 ECAB 238 (1984); Charles E. Varrick, 33 ECAB 1746 (1982).

13

See André Thyratron, 54 ECAB 257 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated December 9 and July 8, 2008 are affirmed.
Issued: December 2, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Salem, VA, Employer
__________________________________________

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Appearances:
Margie Loudermilk, for the appellant
Office of Solicitor, for the Director

Docket No. 13-271
Issued: May 23, 2013

Case Submitted on the Record

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

JURISDICTION
On November 19, 2012 appellant, through his representative, filed a timely appeal from a
July 3, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying
his traumatic injury claim and an October 5, 2012 nonmerit decision denying his request for
reconsideration. 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a left upper chest and left back shoulder injury in the performance of duty on May 17,
2012; and (2) whether OWCP properly denied his request for further merit review under 5
U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 17, 2012 appellant, then a 50-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1), alleging a left upper chest, left back and shoulder injury that day when a
patient struck him with his fists on his front and back at 6:30 p.m. He notified his supervisor and
first received medical care on May 17, 2012.2 Appellant’s supervisor noted on the claim form
that this was a first aid injury.
By letter dated May 31, 2012, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was asked to respond to the questions provided in the letter within 30 days. OWCP
also advised the employing establishment that if he was treated at an agency medical facility, the
employing establishment must provide the treatment notes directly to OWCP.
OWCP received medical records from the employing establishment. In a May 17, 2012
Occupational Health/ER report, Dr. Bharatbhai G. Patel, Board-certified in internal medicine and
an employing establishment physician, reported that appellant was seen at 8:18 p.m. with
complaints of left chest, shoulder and neck pain after a psychiatric patient punched him. Upon
physical examination, he noted no shoulder deformity, neck stiffness, spinal tenderness, bruise,
ecchymosis or laceration. Dr. Patel diagnosed muscular sprain injury. He prescribed a soft
cervical collar, naproxyen and rest. A progress note dated May 18, 2012, advised that appellant
was still recommended to rest. He was returned to full duty on May 21, 2012.3
By decision dated July 3, 2012, OWCP denied appellant’s claim finding that the evidence
did not establish that the incident occurred as alleged. It noted that the medical evidence
submitted contained a diagnosis of “pain” and not a firm medical diagnosis. OWCP also found
that the medical evidence was from a physician’s assistant, who is not considered a physician
under FECA.
By letter dated July 13, 2012, appellant requested reconsideration. He stated that he
followed protocol and sought treatment at the employing establishment Occupational Health/ER
on the night of the employment incident after he was assaulted by a patient. Appellant was taken
off work on May 18, 19 and 20, 2012 and placed on light duty on May 21 and 22, 2012. He
stated that he felt he should be compensated for the “loss of time” that occurred.

2

The Board notes that appellant has 13 other traumatic injury claims dated October 9, 2003 to March 1, 2012.
The record before the Board contains no other information pertaining to his other claims.
3

The signature on the progress notes is illegible.

2

By decision dated October 5, 2012, OWCP denied appellant’s request for reconsideration
finding that he did not raise any substantive legal questions or submit new and relevant evidence
establishing fact of injury.4
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.8 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.9

4

The Board notes that appellant submitted additional evidence after OWCP rendered its October 5, 2012
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
5

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

6

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

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
9

Supra note 4.

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To establish that, an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on
the employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.10
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.11 The opinion of the physician must be based on 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.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.12
ANALYSIS -- ISSUE 1
In its July 3, 2012 decision, OWCP found that appellant did not establish that the incident
occurred at the time, place and in the manner alleged. The Board finds, however, that the
evidence of record is sufficient to establish that the May 17, 2012 incident occurred, as alleged.
Appellant alleged that he sustained an injury at work on May 17, 2012 when he was
struck by a patient in his front and back. The May 17, 2012 Occupational Health/ER report from
Dr. Patel is consistent in noting that appellant experienced left chest, shoulder and neck pain
after he was punched by a psychiatric patient. Appellant provided a consistent account of the
mechanism of the employment incident and reported it to his supervisor, filed a CA-1 form and
sought medical treatment on that same date. Appellant’s supervisor agreed with the facts alleged
by appellant and the employing establishment did not controvert the claim. The Board finds that,
given the above-referenced evidence, appellant has established that the incident occurred at the
time, place and in the manner alleged.13
In the May 17, 2012 report, Dr. Patel reported that appellant complained of left chest,
shoulder and neck pain after a psychiatric patient punched him. Upon physical examination, he
noted no shoulder deformity, neck stiffness, spinal tenderness, bruise, ecchymosis or laceration.
Dr. Patel diagnosed muscular sprain injury. Progress notes were also submitted noting
appellant’s treatment on May 18 and 21, 2012. While OWCP found that the evidence of record
was prepared and signed by a physician’s assistant, the Board finds that the May 17 and 18, 2012
10

Betty J. Smith, 54 ECAB 174 (2002).

11

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

12

James Mack, 43 ECAB 321 (1991).

13

See Willie J. Clements, 43 ECAB 244 (1991).

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reports were from Dr. Patel.14 The issue is whether the May 17, 2012 incident caused appellant’s
injury. Appellant submit rationalized medical evidence to establish that his diagnosed medical
condition is causally related to the accepted May 17, 2012 employment incident.
While Dr. Patel’s report establishes a diagnosis of muscular sprain injury, it is not
sufficient to establish causal relation. He noted that appellant was struck by a psychiatric patient
and complained of left chest, shoulder and neck pain. Dr. Patel failed to provide an adequate
explanation of how the incident caused or contributed to any muscular sprain injury. He failed to
address appellant’s medical history or discuss any preexisting shoulder or chest conditions other
than noting a prior history of human bite, chest wall pain and pain in the joint involving the
shoulder region. Dr. Patel recounted the incident as described by appellant but did not offer a
rationalized opinion on the issue of causal relationship.15 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.16 The opinion of a physician supporting causal relationship must
rest on a complete factual and medical background supported by affirmative evidence, address
the specific factual and medical evidence of record and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of
employment.17 Dr. Patel’s report is insufficient to meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s muscular sprain injury and the May 17, 2012 employment
incident as the progress notes merely noted his complaints and treatment but failed to provide
any opinion on causal relationship. Moreover, it is unclear if the progress notes were signed by a
physician as they contain an illegible signature.18 These notes lack probative medical value as
the author(s) cannot be identified as a physician.19
In the instant case, appellant has established that the May 17, 2012 incident occurred as
alleged. The record, however, is without rationalized medical evidence addressing a causal
relationship. Thus, appellant has failed to establish his burden of proof.
The Board notes that OWCP’s implementing regulations allow for authorization of
medical treatment in emergency circumstances. While 20 C.F.R. § 10.300 explains that
authorization of emergency medical treatment is usually provided by issuance of a Form CA-16,
14

The Board notes that OWCP’s July 3, 2012 decision incorrectly noted that appellant did not provide a medical
report from a physician.
15

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
16

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

17

See Lee R. Haywood, 48 ECAB 145 (1996).

18

Nurses, physician’s assistants, physical and occupational therapists are not “physicians” as defined by FECA,
their opinions regarding diagnosis and causal relationship are of no probative medical value. 5 U.S.C. § 8101(2) of
FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.
See also Roy L. Humphrey, 57 ECAB 238 (2005).
19

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

5

section 10.304 allows for authorization of emergency treatment, in the absence of a Form CA-16,
in cases involving emergencies or unusual circumstances. Upon return of the case record,
OWCP shall adjudicate whether appellant’s treatment by the employing establishment
occupational health/ER should be authorized.
Evidence submitted by appellant after OWCP’s final decision cannot be considered by
the Board. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP
at the time of its decision.20 Appellant may submit additional evidence, together with a written
request for reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.21 Section 10.608(b) of OWCP regulations
provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), it will deny the application for
reconsideration without reopening the case for a review on the merits.22
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his July 13, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Appellant’s argument was that his injury was employment related and that he
followed proper protocol by seeking emergency treatment on the date of the incident.
The underlying issue on appeal involved fact of injury. To establish fact of injury, the
remaining issue is whether appellant’s diagnosed condition was causally related to the
employment incident. Appellant’s statement is duplicative of his allegations on appeal. He
stated that he followed employing establishment protocol and was treated at the employing
establishment’s Occupational Health/ER on the night of the injury. Appellant stated that his lost
wages should therefore be compensated. Whether he sustained an injury causally related to the
May 17, 2012 employment incident is a medical issue which must be addressed by relevant
20

20 C.F.R. § 501.2(c)(1).

21

D.K., 59 ECAB 141 (2007).

22

K.H., 59 ECAB 495 (2008).

6

medical evidence.23 A claimant may obtain a merit review of an OWCP decision by submitting
new and relevant evidence. In this case, appellant failed to submit any new and relevant
evidence addressing a firm medical diagnosis and causal relationship.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
muscular sprain injury is causally related to the accepted May 17, 2012 employment incident.
OWCP properly denied his request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2012 decision of the Office of Workers’
Compensation Programs is affirmed, as modified. The October 5, 2012 decision is affirmed.
Issued: May 23, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

23

See Bobbie F. Cowart, 55 ECAB 746 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF JUSTICE, IMMIGRATION
& NATURALIZATION SERVICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-1467
Issued: February 13, 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 May 8, 2007 appellant, through counsel, filed a timely appeal of a November 3, 2006
merit decision of an Office of Workers’ Compensation Programs’ hearing representative finding
that she had no more than a nine percent impairment of the left upper extremity, for which she
received a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than a nine percent impairment to the left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On February 25, 1997 appellant, then a 41-year-old special agent, filed a traumatic injury
claim. She alleged that on February 25, 1997 she hurt her left elbow and forearm when she fell
onto a concrete floor in a garage. On July 25, 1997 the Office accepted the claim for left lateral

epicondylitis. It authorized four surgeries which were performed on appellant’s left arm and
elbow between August 16, 1997 and August 16, 1999.
On August 25, 2002 appellant filed a claim for a schedule award. She submitted an
April 29, 2002 medical report of Dr. David Weiss, a family practitioner, who reviewed a history
of appellant’s February 25, 1997 employment injury, medical treatment and family, social and
employment background. Dr. Weiss reported his findings on physical examination. He
diagnosed chronic post-traumatic lateral epicondylitis to the left elbow, status post left elbow
lateral epicondyle release two times in 1997 and 1998, status post granulomas surgery in 1998
and 1999, post-traumatic radial tunnel syndrome to the left arm, status post left radial nerve
release and status post lateral epicondyle reconstruction to the left elbow in 1999. Dr. Weiss
reported appellant’s subjective and objective factors of disability. Utilizing the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001), he determined that 4/5 motor strength weakness of the left bicep constituted a 6
percent impairment (A.M.A., Guides 484, 492, Tables 16-11 and 16-15), 3/5 motor strength
weakness of the left triceps constituted a 21 percent impairment (A.M.A., Guides 484 and 492,
Table 16-11 and 16-15) and grip strength weakness constituted a 20 percent impairment
(A.M.A., Guides 509, Table 16-34). Dr. Weiss combined these impairment ratings to determine
that appellant sustained a 41 percent impairment of the left upper extremity. He further
determined that she had a three percent impairment for pain (A.M.A., Guides 574, Figure 18-1).
Dr. Weiss added the 41 percent impairment for motor and strength deficit and the 3 percent
impairment for pain to calculate a 44 percent impairment of the left upper extremity. He
concluded that appellant reached maximum medical improvement on April 29, 2002.
On October 30, 2002 Dr. M.F. Quinlan, an Office medical adviser, reviewed appellant’s
case record, including, Dr. Weiss’ April 29, 2002 findings. Dr. Quinlan recommended a second
opinion medical examination because Dr. Weiss reviewed the results of an electromyogram
(EMG) and nerve conduction studies (NCV) that were five years old, he rated muscle weakness
of the biceps and triceps which were above the level of the injury rather than distal to it and he
included grip strength and pain, both of which were highly subjective.
By letter dated December 9, 2002, the Office referred appellant, along with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Richard H. Bennett,
a Board-certified neurologist, for a second opinion medical examination. It requested that
Dr. Bennett provide the date appellant reached maximum medical improvement, a description of
any restricted motion, decrease in strength, atrophy, ankylosis, sensory changes or other
objective findings as applicable and subjective complaints causing impairment and the extent of
impairment based on the A.M.A., Guides. In a December 23, 2002 report, Dr. Bennett reviewed
a history of appellant’s February 25, 1997 employment injury, medical treatment and medical
records. He reported his findings on physical and objective examination. Dr. Bennett diagnosed
left lateral epicondylitis and found that appellant was status post percutaneous release and open
epicondyle release of the left elbow. He noted her continuing employment-related residuals.
Dr. Bennett determined that appellant sustained a one percent impairment for sensory deficit and
an eight percent impairment for motor deficit. He combined the sensory and motor impairment
ratings to calculate a nine percent impairment of the left upper extremity. Dr. Bennett further
determined that appellant had a 1 percent impairment for radial sensory deficit and a 35 percent
impairment for radial motor deficit. He combined these impairment ratings to calculate a 21

2

percent impairment. Dr. Bennett opined that the sum of impairment was 29 percent and 4
percent. He stated that his findings were based on Tables 16.3, 16.11, 16.13 and 16.15 of the
A.M.A., Guides.
The Office requested clarification from Dr. Bennett regarding his December 23, 2002
findings. It noted that the last paragraph on page two of his report seemed to use motor and
sensory impairment of the radial nerve twice. The Office stated that, if this was correct, then
Dr. Bennett should explain how he arrived at this calculation. It noted that he cited Table 16-13
of the A.M.A., Guides for a spinal nerve injury while the injury sustained by appellant was to the
radial nerve of the elbow which was governed by Table 16-15 of the A.M.A., Guides.
In a February 25, 2003 supplemental report, Dr. Bennett stated that page two of his prior
report contained a typographical error. He related that the calculated impairment rating for radial
nerve dysfunction was one percent for sensory deficit and eight percent for motor deficit.
Dr. Bennett combined the sensory and motor impairment ratings to determine that appellant
sustained a nine percent impairment of the left upper extremity based on Tables 16.3, 16.11 and
16.13 of the A.M.A., Guides.
On April 7, 2003 Dr. Quinlan reviewed Dr. Bennett’s December 23, 2002 and
February 25, 2003 findings. He found that appellant reached maximum medical improvement on
December 23, 2002. Dr. Quinlan concurred with Dr. Bennett’s February 25, 2003 finding that
appellant sustained a nine percent impairment of the left upper extremity.
By decision dated April 22, 2003, the Office granted appellant a schedule award for a
nine percent impairment of the left upper extremity based on the opinion of Dr. Bennett and
Dr. Quinlan. In an April 25, 2003 letter, appellant, through counsel, requested an oral hearing
before an Office hearing representative.
On October 22, 2003 a hearing representative set aside the April 22, 2003 decision and
remanded the case to the Office for further development of the medical evidence. She found that
Dr. Bennett failed to perform EMG studies as requested by Dr. Quinlan. The hearing
representative stated that Dr. Bennett should perform a complete examination as requested and
discuss the EMG findings and Dr. Weiss’ findings, particularly regarding the biceps and triceps
abnormalities and whether they contributed to any left upper extremity impairment stemming
from the accepted employment injury.
On remand the Office was unable to obtain a supplemental report from Dr. Bennett as it
was informed that he no longer performed second opinion medical examinations. By letter dated
January 13, 2004, the Office referred appellant, along with a statement of accepted facts, the case
record and a list of questions to be addressed, to Dr. Joseph S. Lubeck, a Board-certified
neurologist, for a second opinion medical examination. In a January 24, 2004 report, Dr. Lubeck
reviewed a history of appellant’s February 22, 1997 employment injury and medical treatment.
He reported his essentially normal findings on neurological examination. Dr. Lubeck performed
EMG/NCV studies which demonstrated mild bilateral entrapments of the median nerves at the
wrists, worse on the right side and no evidence of a radial nerve injury. He stated that appellant
suffered an injury to her left elbow with a secondary injury to her left radial nerve. Based on his
examination, Dr. Lubeck opined that she only had a mild sensory impairment over the dorsum of

3

the left hand and forearm which were related to the accepted employment injury. Dr. Lubeck
determined that appellant sustained a five percent impairment for sensory deficit or pain of the
radial nerve. (A.M.A., Guides 492, Table 16-15). He stated that this was a Grade IV deficit and
as the sensory deficit did not interfere with activity, appellant had a 25 percent impairment
(A.M.A., Guides 482, Table 16-10). Dr. Lubeck multiplied the two impairment ratings to
calculate a one percent impairment of the left upper extremity. He stated that appellant’s
limitations in strength were related to effort associated pain in the left elbow and not neurologic
involvement of those muscles affected by the radial nerve. Dr. Lubeck thus concluded that there
was no additional motor impairment.
On February 13, 2004 an Office medical adviser reviewed appellant’s medical records,
including Dr. Lubeck’s January 24, 2004 findings. He determined that she reached maximum
medical improvement on January 22, 2004 and opined that she sustained a one percent
impairment of the left upper extremity.
By decision dated February 20, 2004, the Office found that appellant had no more than a
nine percent impairment of the left upper extremity based on the opinions of Dr. Lubeck and the
Office medical adviser. In a February 23, 2004 letter, appellant, through counsel, requested an
oral hearing.
In a January 19, 2005 decision, a hearing representative set aside the February 20, 2004
decision and remanded the case to the Office. He found that a conflict existed in the medical
opinion evidence between Dr. Lubeck and Dr. Weiss as to the extent of permanent impairment of
appellant’s left upper extremity.
On July 14, 2004 the Office referred appellant, along with a statement of accepted facts,
the case record and a list of questions to be addressed, to Dr. Linda K. Stallings Sykes, a Boardcertified neurologist, to resolve the conflict in the medical opinion evidence between Dr. Lubeck
and Dr. Weiss on the issue of appellant’s left upper extremity impairment. In a September 20,
2005 report, Dr. Sykes reviewed a history of appellant’s February 22, 1997 employment injury,
medical treatment and work duties at the time of injury and her medical records. She reported
essentially normal findings on neurological examination with the exception of minimally
decreased range of motion of the neck, diminished grip strength of the left hand, mildly positive
Tinel’s sign over the median nerve of the left wrist, decreased sensation to pin over the thumb,
index and middle fingers of the left hand and minimal decreased sensation over the dorsal
surface of the base of the left thumb. Dr. Sykes stated that the issue in question was that of
injury to or impairment of the radial nerve of the left arm. She noted that none of the three
EMG/NCV studies performed over a seven-year span demonstrated abnormalities in the
distribution of the radial nerve. There was at most, minimal sensory symptoms in the
distribution of the cutaneous branch of the radial nerve and the majority of the currently
described sensory symptoms primarily related to the median nerve correlating with findings of
carpal tunnel syndrome as seen on the EMG performed by Dr. Lubeck in January 2004.
Dr. Sykes stated that, as noted by Dr. Lubeck, the previously found weakness in appellant’s
biceps and triceps would not be attributable to radial nerve injury or damage. She opined that
appellant’s carpal tunnel syndrome was not related to the February 25, 1997 employment injury.
Dr. Sykes stated that this condition was not present on the 1997 EMG or Dr. Bennett’s
December 2002 EMG. She opined that appellant’s carpal tunnel syndrome developed since

4

December 2002 and was not attributable to the accepted employment injury or subsequent
multiple left elbow surgeries. Dr. Sykes found that appellant sustained at most a five percent
impairment for sensory deficit/pain as noted in the distribution of the unilateral radial nerve
(A.M.A., Guides 492, Table 16-15). She determined that a minimal sensory deficit in this
distribution over the limited portion of the dorsum of the left hand constituted a 25 percent
impairment (A.M.A., Guides 482, Table 16-10). Dr. Sykes multiplied the above impairment
ratings to calculate a one percent impairment of the left upper extremity. She concluded that
appellant’s impairment was limited to neurologic impairment and not any impairment of a joint
pathology with associated limitation of range of motion, joint or ligamentous pain or
abnormality. Dr. Sykes reiterated that her carpal tunnel syndrome developed subsequent to
December 2002 and was not related to the February 22, 1997 employment injury.
On December 9, 2005 Dr. Arnold T. Berman, an Office medical adviser, reviewed
appellant’s medical records, including the findings of Dr. Sykes, Dr. Lubeck and Dr. Weiss. He
noted the finding of Dr. Sykes and Dr. Lubeck that appellant sustained a one percent impairment
of the left upper extremity. Dr. Berman found that Dr. Weiss improperly used Table 16-11 of the
A.M.A., Guides. He stated that this table related to impairment of peripheral nerve disorders and
Dr. Weiss incorrectly concluded that there was a peripheral nerve disorder that was causing
weakness of appellant’s biceps. Dr. Berman noted that this case involved the biceps and the
radial nerve did not involve the biceps. He found that Dr. Weiss’ 21 percent impairment rating
for 3/5 motor strength weakness of the left triceps was incorrect as the triceps enervation by the
radial nerve was much more proximal than where the radial nerve injury occurred below the
elbow. Dr. Berman found that Dr. Weiss’ determination that appellant sustained a 20 percent
impairment for grip strength was inappropriate as manual muscle testing according to the
A.M.A., Guides was considered highly subjective. He noted Dr. Weiss’ three percent
impairment rating for pain (A.M.A., Guides 574, Figure 18-1). Dr. Berman stated that he would
not be opposed to adding a three percent impairment for pain to the one percent impairment
recommended by Dr. Sykes and Dr. Lubeck. He related that it was conceivable that appellant’s
pain was attributable to other sources such as scarring and muscular abnormalities in and around
the elbow that could have resulted from multiple operations. Dr. Berman concluded that
appellant sustained a four percent impairment of the left upper extremity by adding one percent
impairment due to sensory loss of the radial nerve and three percent impairment for pain. He
further concluded that appellant reached maximum medical improvement on April 29, 2002.
By decision dated March 15, 2006, the Office found that appellant was not entitled to a
schedule award for more than nine percent impairment of the left upper extremity. It stated that
Dr. Sykes’ and Dr. Berman’s finding that appellant sustained one percent impairment and four
percent impairment, respectively, was less than the schedule award she previously received. In a
March 21, 2006 letter, appellant, through counsel, requested an oral hearing.
In a November 3, 2006 decision, a hearing representative affirmed the March 15, 2006
decision. She found that Dr. Sykes’ September 20, 2005 opinion that appellant did not have
more than a nine percent impairment of the left upper extremity was entitled to special weight
accorded an impartial medical specialist.

5

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 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 of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.5 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.6
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.7 When there exist opposing
medical reports of virtually equal weight and rationale and 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 upon a proper factual background, must be given special
weight.8
ANALYSIS
The Office accepted that appellant sustained lateral epicodylitis of the left elbow. An
Office hearing representative found a conflict in the medical opinion evidence between
1

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

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. § 10.404.

5

See Paul A. Toms, 28 ECAB 403 (1987).

6

A.M.A., Guides, Chapter 16, The Upper Extremities, pages 433-521 (5th ed. 2001).

7

5 U.S.C. § 8123.

8

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, 54 ECAB 351 (2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager,
54 ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

6

Dr. Weiss, an attending physician, and Dr. Lubeck, an Office referral physician, as to the extent
of permanent impairment of appellant’s left upper extremity. Dr. Weiss opined that appellant
sustained a 44 percent impairment of the left upper extremity. Dr. Lubeck opined that appellant
had a one percent impairment of the left upper extremity.
The Office properly referred appellant to Dr. Sykes, selected as the impartial medical
examiner, to resolve the conflict in the medical opinion evidence. In a September 20, 2005
report, she noted essentially normal findings on neurological examination with the exception of
minimally decreased range of motion of the neck, diminished grip strength of the left hand,
mildly positive Tinel’s sign over the median nerve of the left wrist, decreased sensation to pin
over the thumb, index and middle finger of the left hand and minimal decreased sensation over
the dorsal surface of the base of the left thumb. Dr. Sykes found that none of the three
EMG/NCV studies performed over a seven-year span demonstrated abnormalities in the
distribution of the radial nerve. She stated that at most, there was minimal sensory symptoms in
the distribution of the cutaneous branch of the radial nerve and the majority of the currently
described sensory symptoms primarily related to the median nerve correlating with findings of
carpal tunnel syndrome as seen on an EMG performed by Dr. Lubeck in January 2004.
Dr. Sykes stated that as noted by Dr. Lubeck, the previously found weakness of biceps and
triceps would not be attributable to radial nerve injury or damage. She opined that appellant’s
carpal tunnel syndrome was not related to the February 25, 1997 employment injury. Dr. Sykes
stated that this condition was not present on the 1997 EMG or Dr. Bennett’s December 2002
EMG. She concluded that appellant’s carpal tunnel syndrome developed since December 2002
and was not attributable to the accepted employment injury or subsequent multiple left elbow
surgeries. Dr. Sykes determined that appellant sustained at most a five percent impairment for
sensory deficit/pain as noted in the distribution of unilateral radial nerve (A.M.A., Guides 492,
Table 16-15). She further determined that a minimal sensory deficit in this distribution over the
limited portion of the dorsum of the left hand constituted a 25 percent impairment (A.M.A.,
Guides 482, Table 16-10). Dr. Sykes multiplied the two impairment ratings to calculate a one
percent impairment of the left upper extremity. She concluded that appellant’s impairment was
limited to neurologic impairment. Dr. Sykes reiterated that her carpal tunnel syndrome
developed subsequent to December 2002 and was not related to the February 22, 1997
employment injury.
On December 9, 2005 Dr. Berman, an Office medical adviser, noted the finding of
Dr. Sykes and Dr. Lubeck that appellant sustained a one percent impairment of the left upper
extremity. Regarding Dr. Weiss’ April 29, 2002 findings, Dr. Berman found that he improperly
used Table 16-11 of the A.M.A., Guides. He explained that this table related to impairment of
peripheral nerve disorders and Dr. Weiss incorrectly concluded that there was a peripheral nerve
disorder that was causing weakness of appellant’s biceps. Dr. Berman noted that this case
involved the biceps and the radial nerve did not involve the biceps. He further found that
Dr. Weiss’ 21 percent impairment rating for 3/5 motor strength weakness of the left triceps was
incorrect as the triceps innervation by the radial nerve was much more proximal than where the
radial nerve injury occurred below the elbow. Dr. Berman found that Dr. Weiss’ determination
that appellant sustained a 20 percent impairment for grip strength was inappropriate as manual
muscle testing according to the A.M.A., Guides was considered highly subjective. Noting
Dr. Weiss’ three percent impairment rating for pain (A.M.A., Guides 574, Figure 18-1),
Dr. Berman stated that he would not be opposed to adding this impairment rating to the one
7

percent impairment recommended by Dr. Sykes and Dr. Lubeck, resulting in a four percent
impairment of the left upper extremity. He explained that it was conceivable that appellant’s
pain was attributable to other sources, such as scarring and muscular abnormalities in and around
the elbow that could have resulted from multiple operations. Dr. Berman, however, erroneously
added to the pain impairment by allowing an additional three percent under Chapter 18,
Figure 18-1. Section 18.3b of Chapter 18 at page 571 of the A.M.A., Guides clearly provide that
examiners should not use this chapter to rate pain-related impairment for any condition that can
be adequately rated on the basis of the body and organ impairment rating systems given in other
chapters of the A.M.A., Guides. Dr. Berman did not explain why appellant’s pain-related
impairment could not be adequately addressed by applying Chapter 16 of the A.M.A., Guides
which addresses upper extremity impairment, specifically section 16.15, Impairment of the
Upper Extremities Due to Peripheral Nerve Injuries (A.M.A., Guides 492, Table 16-15). Table
16-10 explains the correct method for calculating impairment due to sensory deficits or pain
resulting from peripheral nerve disorders (A.M.A., Guides 482, Table 16-10). Due to this
deficiency, the Board finds that Dr. Berman’s opinion is of diminished probative value.
Dr. Sykes properly applied the A.M.A., Guides and provided a detailed and wellrationalized report for rating a one percent impairment of the left upper extremity. The Board
finds that Dr. Sykes’ opinion is entitled to special weight as the impartial medical specialist.
Appellant has no more than a nine percent impairment of the left upper extremity.
CONCLUSION
The Board finds that appellant has failed to establish that she has more than nine percent
impairment of the left upper extremity.

8

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Half Moon Bay, CA, Employer
__________________________________________

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

Docket No. 10-1769
Issued: April 7, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from a March 15, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 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 that he sustained a
traumatic injury in the performance of duty on April 19, 2008.
FACTUAL HISTORY
On January 29, 2010 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim alleging that he injured his knee, elbow and shoulder on April 19, 2008 when a dolly he
attempted to push through locked swing doors rebounded, collided with his knee and caused him
1

5 U.S.C. § 8101 et seq.

to fall. He did not incur any time loss from work. Appellant maintained that “swing doors are
not suppose[d] to be lock[ed] when letter carriers are working.” A witness heard him “scream
out loud” and stated that he crashed into a door that “should not have been locked.” Appellant
did not stop work.
In a June 24, 2009 report, Dr. Shelley Anais Arredondo, Board-certified in occupational
medicine, stated that appellant presented with continuing right knee, neck and shoulder pain.
Appellant described his condition as “same injury, old claim.” Dr. Arredondo noted the date of
injury as March 16, 2008. She examined appellant and observed paracervical, trapezial,
subacromial, subdeltoid and acromioclavicular (AC) joint tenderness to palpation and cervical
and right shoulder soreness. Dr. Arredondo diagnosed cervical radiculopathy, AC ligament
sprain and knee contusion. She added that appellant had returned to full duty on June 12, 2009.
Appellant also submitted an August 1, 2008 work status form from Dr. Ofer M. Eibschutz, a
Board-certified internist, who discharged appellant to regular duty on the same day.
Dr. Eibschutz listed knee contusion, cervical radiculopathy and AC ligament sprain as the
diagnoses and the date of injury as March 16, 2008.
The employing establishment controverted the claim in a January 29, 2010 letter,
asserting that appellant was able to perform his regular work duties and previously chose not to
pursue a claim for the April 19, 2008 incident. It also pointed out that he complained of right
knee discomfort on June 8, 2009 but did not file a claim. Employing establishment e-mail
correspondence for the period August 1 to 15, 2008 showed that appellant disputed March 16,
2008 as the date of incident and reiterated that he was injured on April 19, 2008. Accident
reports dated May 27, 2008 and June 11, 2009 detailed a history of injury on April 19, 2008 and
June 8, 2009. An August 2, 2008 e-mail from appellant’s supervisor noted that, while appellant
reported an accident on April 18 or 19, 2008, he was able to work his regular duties and chose
not to pursue a claim.
On February 4, 2010 the Office informed appellant that the evidence was insufficient and
advised him about the evidence needed to establish his claim. It gave him 30 days to submit
medical reports describing his history of injury, diagnosis, symptoms, test results, period and
extent of disability and treatment provided and offering a physician’s reasoned opinion as to how
the April 19, 2008 employment incident caused his present condition. Appellant replied with a
copy of his CA-1 form traumatic injury notice and claim.
By decision dated March 15, 2010, the Office denied appellant’s claim, finding the
medical evidence insufficient to demonstrate causal relationship.
LEGAL PRECEDENT
An employee seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,2
including that he is an “employee” within the meaning of the Act and that he filed his claim
within the applicable time limitation.3 The employee must also establish that he sustained an
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

2

injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.4
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. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.6
ANALYSIS
The evidence supports that appellant collided with a dolly on April 19, 2008 as he
attempted to push it through locked swing doors at the employing establishment. However, he
has not submitted medical evidence establishing that this work incident caused or contributed to
a right knee, elbow or shoulder injury.
Dr. Arredondo’s June 24, 2009 report and Dr. Eibschutz’ August 1, 2008 work status
form, respectively, diagnosed appellant as having knee contusion, cervical radiculopathy and AC
ligament sprain. Neither physician offered an opinion as to the cause of these injuries. 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.7 Also, Drs. Arredondo and Eibschutz
did not identify the particular employment incident that led to appellant’s condition. A physician
must discuss whether the employment incident described by the claimant caused or contributed
to the diagnosed medical condition.8 In the absence of well-reasoned medical opinion explaining

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

8

See John W. Montoya, 54 ECAB 306, 309 (2003). Moreover, both physicians noted that an incident occurred on
March 16, 2008, which conflicts with appellant’s account. See also M.W., 57 ECAB 710 (2006); James A. Wyrick,
31 ECAB 1805 (1980) (medical conclusions based on an incomplete or inaccurate history are of diminished
probative value).

3

the causal relationship between the diagnosed condition and specific employment factors,
appellant failed to meet his burden of proof.9
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on April 19, 2008.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

The Board notes that appellant submitted new evidence to the Office after issuance of the March 15, 2010
decision. The Board lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c). This,
however, does not preclude appellant from having such evidence considered by the Office as part of a formal written
request for reconsideration pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 08-431
Issued: August 5, 2008

Case Submitted on the Record

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

JURISDICTION
On November 26, 2007 appellant filed a timely appeal from the merit decisions of the
Office of Workers’ Compensation Programs’ dated March 20 and October 15, 2007, denying her
claim for compensation beginning October 31, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation benefits beginning
October 31, 2006 due to her accepted injury of September 30, 2006.
FACTUAL HISTORY
On October 5, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim alleging that on September 30, 2006 she fell after putting mail in a box and sustained
injuries to her right hip, knee, ankle and left ankle. By letter dated October 10, 2006, the
employing establishment controverted the claim. By letter dated October 23, 2006, the Office
accepted appellant’s claim for right knee contusion, right knee strain, right hip contusion and

right ankle strain.1
December 1, 2006.

Appellant filed claims for compensation from November 14 through

In support of her claim, appellant submitted reports from several physicians at the Henry
Ford Medical Centers. In a medical form report dated October 19, 2006, Dr. Raimonds
Zvirbulis, a Board-certified orthopedic surgeon, indicated that appellant could not work from
September 30 to October 30, 2006. In a report dated October 26, 2006, he indicated that
appellant may return to work on October 30, 2006 with restrictions of no repetitive squatting,
bending or lifting and two-hour mail carry only. Dr. Zvirbulis noted that the restriction would
remain effective until November 6, 2006. However, in a form dated October 31, 2006
Dr. Archana Reddy, a Board-certified internist, stated that appellant could not work from
October 31 through November 6, 2006. She noted hip/ankle pain. In a form dated November 6,
2006, Dr. Zvirbulis indicated that appellant could not work at all from November 6 through
December 10, 2006 due to “other bilateral OA [osteoarthritis], chondromalacia patella.” In a
November 6, 2006 note, he indicated that appellant had a history of falling on October 16, 2006
while at work. Dr. Zvirbulis noted that appellant fell on her right side and sustained a contusion
to the right hip and right knee. He noted that she also complained of left ankle pain.
Dr. Zvirbulis indicated that appellant continued to complain of pain on the right lateral hip and
noted that she may have sprained her left ankle.
In a form report dated December 11, 2006, Dr. Dean I. Moore, indicated that appellant
could not work from December 11, 2006 through January 12, 2007, noting osteoarthritis.
By letter dated January 5, 2007, the Office indicated that it needed further evidence to
support ongoing disability.
In a form letter dated January 11, 2007, Dr. Zvirbulis diagnosed right hip and knee pain
and indicated that appellant could not work from January 11 through February 11, 2007.
Appellant continued to file claims for loss of compensation from January 27 through
March 9, 2007.
By decision dated March 19, 2007, the Office denied appellant’s claim for compensation
for the period commencing October 31, 2006 and continuing.
By form letter dated March 12, 2007 and received by the Office on March 26, 2007,
Dr. Zvirbulis indicated that appellant could do no work from March 12 to April 16, 2007, noting
lateral meniscal tear, right and left ankle pain.
By letter from her attorney dated April 10, 2007, appellant requested an oral hearing
before an Office hearing representative.

1

The Board notes that appellant filed a prior claim for contusion of left hand and finger, contusion of back and
right knee and right knee lateral mensiscus tear. On November 17, 2005 the Office terminated appellant’s
entitlement to compensation and medical benefits in this case because she no longer suffered residuals of her workrelated injuries under this claim.

2

In an April 4, 2007 report, Dr. Richard Needleman, a Board-certified orthopedic surgeon,
indicated that appellant fell down one or two steps on September 30, 2006 and by history
sustained an injury to her right knee, right hip and left ankle. He noted that appellant’s ankle was
still bothering her. Dr. Needleman assessed a history of partial Achilles tendon tear of
approximately eight months duration. He put her in a short leg cast. In a form letter dated
June 6, 2007, Dr. Needleman stated that appellant could not work from June 6 to 27, 2007,
noting a ruptured left Achilles tendon. In a letter dated June 27, 2007, he extended this work
prohibition to July 27, 2007. In a report also dated June 27, 2007, Dr. Needleman noted that
appellant’s partial Achilles tendon tear of left foot was currently asymptomatic.
In a May 29, 2007 note, Dr. Zvirbulis indicated that appellant was complaining of right
knee pain.
At a hearing held on July 30, 2007 appellant testified that it was her left ankle that she
injured, not her right ankle. She indicated that she went back to work on October 30, 2006 but
that was the last day she worked.
In a form letter dated July 18, 2007, Dr. Needleman indicated that appellant could not
work from July 18 to August 27, 2007 and noted a diagnosis of torn Achilles left tendon. In a
July 27, 2007 report, he listed his assessment as right knee pain likely due to osteoarthritis.
In a letter dated September 13, 2007, the Office indicated that appellant was being treated
for left torn Achilles tendon which is not part of her accepted conditions. Appellant was
provided with an opportunity for submitting evidence that her torn Achilles tendon was the result
of her September 30, 2006 employment injury.
By decision dated October 15, 2007, the hearing representative determined that appellant
had not established her entitlement to wage-loss compensation beginning October 31, 2006 was
due to the accepted conditions of her claim. Accordingly, she affirmed the Office’s March 20,
2007 decision.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act2 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of the injury.3 Whether a particular injury caused an employee disability for
employment is a medical issue which must be resolved by competent medical evidence.4 When
the medical evidence establishes that the residuals of an employment injury are such that, from a
medical standpoint, they prevent the employee from continuing in the employment held when
injured, the employee is entitled to compensation for any loss of wage-earning capacity resulting
from such incapacity.5 The Board will not require the Office to pay compensation for disability
2

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

3

Sean O’Connell, 56 ECAB 195 (2004).

4

Paul E. Thams, 56 ECAB 503 (2005).

5

Id.

3

in the absence of any medical evidence directly addressing the specific dates of disability for
which compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.6
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medial 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.8 Neither the fact that a
disease or condition manifests itself during a period of employment nor the belief that the disease
or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
ANALYSIS
In the instant case, the Office accepted appellant’s claim that as a result of the injury of
September 30, 2006 appellant sustained a right knee contusion, right knee strain, right hip
contusion and right ankle strain. Appellant filed claims for periods of disability commencing
October 31, 2006.
The Board finds that appellant did not establish entitlement to disability compensation
after October 31, 2006. The Board notes that the opinions of Drs. Zvirbulis, Reddy, Moore and
Needleman never make a correlation between appellant’s accepted conditions and her alleged
disability. Furthermore, the medical reports of Drs. Zvirbuluis and Needleman attributed certain
periods of appellant’s disability to lateral meniscus tear, osteoarthritis and a partial tear of the left
Achilles tendon. However, these conditions were not accepted by the Office. As it did not
accept these conditions as employment related, the burden of proof is on appellant to establish
causal relationship. The Board finds that appellant did not submit any rationalized medical
report explaining how these injuries were causally related to the accepted employment injury.
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
her belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by

6

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

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

8

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

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

rationalized medical opinion evidence.10 As appellant failed to submit such evidence, the Office
properly denied her claim for compensation beginning October 31, 2006.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for wage-loss
compensation beginning October 31, 2006 due to her accepted injury of September 30, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 15 and March 20, 2007 are affirmed.
Issued: August 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
TENNESSEE VALLEY AUTHORITY, BROWN
FERRY NUCLEAR PLANT, Muscle Shoals, AL,
Employer
__________________________________________

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

Docket No. 07-1305
Issued: September 26, 2007

Case Submitted on the Record

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

JURISDICTION
On April 16, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 15, 2006 merit decision denying his claim as untimely filed
and the March 23, 2007 nonmerit decision denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over these issues.
ISSUES
The issues are: (1) whether the Office properly determined that appellant’s claim for
compensation is barred by the applicable time limitation provisions of the Federal Employees’
Compensation Act; and (2) whether the Office properly refused to reopen his case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 18, 2006 appellant, a 70-year-old retired iron worker, filed an occupational
disease claim, alleging that exposure to noise during his federal employment caused a bilateral

hearing loss. He first realized that he had a hearing loss and that the loss was caused or
aggravated by his employment on April 24, 2006. Appellant alleged that he began having
problems hearing in both ears; had difficulty hearing the television and radio; and had to ask
people to repeat words during conversations. He retired on October 4, 1991. The employing
establishment indicated that the condition was first reported on July 27, 2006.
Appellant also submitted an April 24, 2006 audiogram. In an undated statement, he
indicated that he had worked for the U.S. Army from 1958 to 1960 and for the employing
establishment from 1960 to 1990. Appellant alleged that he was exposed to loud noise eight
hours per day, five to seven days per week, from hammering, drilling, grinding, welding and
pinging. He stated that he was exposed to noise from turbines, air compressors and tuggers and
that no safety devices were provided. Appellant first noticed his hearing loss and that it was
related to his employment, on April 24, 2006, when he received the results of the audiogram.
By letter dated August 15, 2006, the Office informed appellant that the information
submitted was insufficient to establish his claim. The Office asked appellant to provide
additional medical and factual information relating to his hearing loss, including an explanation
as to how he first realized the loss was causally related to factors of employment. In an undated
statement, appellant reiterated that, in his job as an iron worker, he was exposed to loud noise
from industrial machinery every day.
On October 20, 2006 the Office informed appellant that the information submitted
indicated that his claim was not timely, in that it was filed more than three years after the date of
his last exposure to work-related noise. The Office asked appellant to provide evidence that his
supervisor was aware of his hearing loss within 30 days of his last exposure.
The employing establishment controverted appellant’s claim on the grounds that it was
untimely filed. It contended that it had no immediate actual knowledge of injury, as the
audiograms performed by the establishment did not document any hearing loss or shifts in
hearing to signify evidence of injury. The employing establishment submitted applications for
employment dated April 5, 1960 and August 31, 1983; an employment history; reports from
audiograms dated March 7, 1979, October 10, 1984, August 11, 1987 and November 1, 1989;
and medical examination records dated March 7, 1979, October 10, 1984, August 11, 1987 and
November 1, 1989, reflecting appellant’s representation that he had never had any hearing loss.
An employing establishment audiometric record showed that, pursuant to testing on the
above-referenced dates, appellant had a zero percent binaural hearing loss. In an October 30,
2006 statement, appellant indicated that his former supervisors were deceased.
The Office forwarded the employing establishment audiograms from 1979 to 1987 to the
district medical adviser for review. On November 9, 2006 an Office medical adviser stated that a
comparison of the earliest and latest employing establishment audiograms did not document a
worsening of appellant’s hearing loss.
By decision dated December 15, 2006, the Office denied appellant’s claim on the
grounds that it was not timely filed. It advised him that the date of injury was the date of his last
occupational exposure, namely October 4, 1991, the date of his retirement and that he should
have been aware of a relationship between his employment and the claimed condition by that

2

date. The Office further found that any worsening appellant experienced after his last exposure
to the noise, would not demonstrate that any hearing loss had occurred during his employment.
As appellant’s claim was filed in 2006, more than 14 years after the date of injury, the Office
found that it was untimely filed. It further found that his immediate supervisor did not have
actual knowledge of the injury within 30 days.
On December 26, 2006 appellant requested reconsideration, stating that he filed his claim
as soon as he learned of his hearing loss.
By decision dated March 23, 2007, the Office denied appellant’s request for
reconsideration without a review of the merits, finding that it neither raised substantial legal
questions, nor included new and relevant evidence and, thus, it was insufficient to warrant
review of its prior decision.
LEGAL PRECEDENT
In cases of injury on or after September 7, 1974, section 8122(a) of the Act1 provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such as to put the immediate superior
reasonably on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”2
Section 8119 provides that a notice of injury or death shall: be given within 30 days after
the injury or death; be given to the immediate superior of the employee by personal delivery or
by depositing it in the mail properly stamped and addressed; be in writing; state the name and
address of the employee; state the year, month, day and hour when and the particular locality
where, the injury or death occurred; state the cause and nature of the injury or, in the case of
death, the employment factors believed to be the cause; and be signed by and contain the address
of the individual giving the notice.3 Actual knowledge and written notice of injury under section
8119 serve to satisfy the statutory period for filing an original claim for compensation.4
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability. The
1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8122(a).

3

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

4

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

3

Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.5 In order to establish that a supervisor had
actual knowledge, an employee must show not only that the immediate superior knew that he or
she was injured, but also knew or reasonably should have known that it was an on-the-job
injury.6
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.7 Where the employee continues
in the same employment after he or she reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of federal employment,8 the time
limitation begins to run on the date of the last exposure to the implicated factors.9 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.10
In interpreting section 8122(a)(1) of the Act, Office procedure manual states that, if the
employing establishment gives regular physical examinations, which might have detected signs
of illness, such as hearing tests, it should be asked whether the results of such tests were positive
for illness and whether the employee was notified of the results.11
ANALYSIS
In this case, the Office found that appellant did not file a timely claim for compensation
for his hearing loss. It determined that appellant was last exposed to the employment conditions
which allegedly caused his hearing loss on October 4, 1991, the date of his retirement. Since
appellant did not file a claim until May 18, 2006, the Office concluded that his claim was not
timely filed within the three-year period of limitation.
The Board finds that appellant’s claim was timely filed. The Board has held that, when
an employee becomes aware, or reasonably should have been aware, that he has a condition
5

Delmont L. Thompson, 51 ECAB 155 (1999).

6

5 U.S.C. § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

7

Larry E. Young, supra note 3.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
9

Id.

10

Debra Young Bruce, 52 ECAB 315 (2001).

11

Federal (FECA) Procedure Manual, at 2.801.6(c) (March 1993).

4

which has been adversely affected by factors of his employment, such awareness is competent to
start the running of the time limitations period, even though he does not know the precise nature
of the impairment or whether the ultimate result of such adverse effect would be temporary or
permanent.12 In his claim for compensation, appellant stated that he only became aware of a
hearing loss after obtaining an April 24, 2006 hearing test, which accompanied his claim. He
alleged that he began having problems hearing in both ears; had difficulty hearing the television
and radio; and had to ask people to repeat words during conversations.
The Office found that the date of injury was the date of his last occupational exposure,
namely October 4, 1991, the date of his retirement and that he should have been aware of a
relationship between his employment and the claimed condition by that date. The Board finds,
however, that the Office’s determination is in error. The medical evidence from the employing
establishment admittedly did not document any hearing loss or shifts in hearing to signify that
appellant had a hearing loss prior to his retirement in 1991. On November 9, 2006 an Office
medical adviser stated that a comparison of the earliest and latest employing establishment
audiograms did not document a worsening of appellant’s hearing loss. There is no evidence of
record indicating that appellant was aware of a hearing loss, or that such a loss was causally
related to factors of his employment, prior to April 24, 2006. The Board finds that appellant first
became aware, or reasonably should have been aware, of a possible relationship between a
diagnosed hearing loss and factors of his federal employment on April 24, 2006.13
The evidence does not establish that appellant was aware, or should have been aware, of
the causal relationship between his federal employment and his hearing loss until April 24, 2006.
Therefore, the time limitations began to run at that time. As appellant filed his claim on May 18,
2006, the Board finds that his claim was timely filed within the three-year period after
April 24, 2006.14
CONCLUSION
The Board finds that appellant’s claim for a hearing loss was timely filed.

12

See Larry E. Young, supra note 3.

13

See L.C., 57 ECAB ___ (Docket No. 06-1190, issued September 18, 2006) (The Board found that, although
appellant’s last exposure to noise in the workplace occurred in 1987, when he retired, time limitations for filing
purposes began to run in 2004, when he became aware of the causal relationship between his hearing loss and his
federal employment).
14

Due to the Board’s disposition of this issue, the second issue is moot and will not be addressed by the Board.

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2007 and December 15, 2006
decisions of the Office of Workers’ Compensation Programs are reversed. The case is remanded
to the Office for further proceedings regarding the merits of his claim.
Issued: September 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6