United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Sacramento, CA,
Employer
__________________________________________

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

Docket No. 14-775
Issued: July 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2014 appellant, through his attorney, filed a timely appeal of an Office
of Workers’ Compensation Programs’ (OWCP) decision dated December 18, 2013. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on February 1, 2012
causally related to his accepted May 13, 1982 employment injury.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 29-year-old maintenance
worker, was injured on May 13, 1982 while digging a hole with a shovel. He filed a claim for
1

5 U.S.C. § 8101 et seq.

benefits, which OWCP accepted for right knee sprain, right knee dislocation and meniscus tear
of the right knee.
On March 5, 2012 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of disability on February 1, 2012 which was causally related to his
accepted May 13, 1982 employment injury. He was seeking reimbursement for medical care he
received on February 16, 2012. Appellant stated that he was not working as he had been laid off
from work on January 31, 2011.
In a report dated June 21, 2012, Dr. Marshall S. Lewis, a specialist in orthopedic surgery,
diagnosed recurrent internal derangement of the knee with gross degenerative changes to the
lateral compartment. He advised that appellant had a prior injury and prior surgery to the right
knee, with residual symptoms; he stated that, without any other history of trauma to the knee,
these appeared to be the long-term sequelae of the original injury. Dr. Lewis noted that on
April 12, 1983 appellant underwent an arthroscopy of the right knee with chondroplasty of the
medial tibial condyle. He advised that appellant had since sustained cumulative trauma over
time to the point where his right knee had worn out. Dr. Lewis concluded that, without any other
known cause for the knee to degenerate, his condition stemmed from the May 13, 1982
employment injury.
By decision dated July 24, 2012, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish that he sustained a recurrence of his May 13, 1982
work injury as of February 1, 2012. By decision dated December 21, 2012, an OWCP hearing
representative affirmed the July 24, 2012 OWCP decision. In a decision dated May 23, 2013,2
the Board affirmed the December 12, 2012 decision of OWCP’s hearing representative. The
complete facts of this case are set forth in the Board’s May 23, 2013 decision and are herein
incorporated by reference.
In an August 24, 2013, report, Dr. Lewis advised that his review of medical literature
supported his opinion that appellant had sustained a recurrence of his May 13, 1982 right knee
injury as of February 1, 2012 and was currently experiencing residuals from that injury. He
advised that appellant’s work duties, such as repetitive and prolonged kneeling, squatting,
bending and mechanical loading had been noted to be significant risk factors for osteoarthritis of
the knee based on numerous occupational and academic studies. Dr. Lewis further asserted that
additional studies indicated that surgical meniscectomy, which appellant underwent in 1983, was
associated with degenerative arthritis of the knee. He opined that, based on high quality
evidence and peer review biomedical studies published over many years, it has been documented
that the cause for obesity and direct relationship to degenerative knee disease are related to the
fact that the patient becomes more deconditioned and obese as the knee continues to deteriorate;
these factors result in decreased activities of daily living, decreased overall tolerance to pain and
interrupted sleep, all of which leads to increasing weight which further deteriorates the previous
knee that had surgery, even going back to 1982.
Dr. Lewis concluded that, based on peer reviewed literature and appellant’s medical
history, the only reason that he has degenerative arthritis in his right knee was because the knee
2

Docket No. 13-652 (issued May 23, 2013).

2

has a history of injury and subsequent surgery as previously outlined, with a date of injury of
May 13, 1982. He asserted that there was no other known cause for this to occur.
By letter dated September 30, 2013, appellant, through his attorney, requested
reconsideration.
By decision dated December 18, 2013, OWCP denied modification of the July 24, 2012
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.3 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.4 Where no such rationale is present,
medical evidence is of diminished probative value.5
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between her present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.6
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed, or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report, which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.7
ANALYSIS
In the instant case, appellant has failed to submit a sufficiently rationalized, probative
medical report which relates his claimed recurrence of disability for work as of February 1, 2012
to his accepted right knee condition. For this reason, he has not discharged his burden of proof
3

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

4

I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

See Ronald C. Hand, 49 ECAB 113 (1997); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

6

Mary A. Ceglia, 55 ECAB 626 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (January 1995).

3

to establish his claim that he sustained a recurrence of disability as a result of his accepted
employment condition.
Dr. Lewis stated in his August 24, 2013 report that appellant’s work duties, which
included repetitive and prolonged kneeling, squatting, bending and mechanical loading, were
significant risk factors for osteoarthritis of the knee, as indicated in several occupational and
academic studies; additional studies noted that a meniscectomy was associated with degenerative
arthritis of the knee. He indicated that a patient with a degenerative knee becomes more
deconditioned and obese as the knee continues to deteriorate. This deterioration and weight gain
was likely to result in decreased activities of daily living, decreased overall tolerance to pain and
interrupted sleep, which further deteriorated his right knee condition. Dr. Lewis opined that, in
light of the medical literature pertaining to degenerative knee conditions and appellant’s medical
history, the only reason that he had degenerative arthritis of the right knee was he had a history
of right knee injury in 1982.
Dr. Lewis did not relate, with supporting medical evidence, that bridging evidence since
1982 showed progressive spontaneous worsening of the accepted conditions. Rather, he relates,
in general terms, appellant’s degenerative knee conditions to appellant’s continued work
activities. A change in appellant’s accepted conditions due to additional or new work factors,
could constitute a new injury, not a recurrence of the accepted injury.8
Dr. Lewis did not provide a rationalized, probative medical opinion indicating that
appellant sustained a recurrence of disability on February 1, 2012 causally related to his accepted
May 13, 1982 right knee injury. While he cited articles from medical literature pertaining to
degenerative knee conditions and stated that appellant had engaged in work activities which had
a cumulative effect, aggravating his right knee condition and resulting in deterioration to the
knee, he did not describe any alleged recurrence in detail or how the May 13, 1982 work
accident would have been competent to cause the claimed recurrence of disability.
Dr. Lewis’ opinion on causal relationship is of limited probative value in that he did not
provide adequate medical rationale in support of his conclusions.9 He merely generally opined,
in summary fashion, that appellant’s 1982 right knee injury appeared to be the cause of his
claimed recurrence because there was no other known cause in his medical history. These
statements are broad and vague as they do not explain whether appellant’s accepted May 13,
1982 employment injury contributed to his claimed condition and/or disability as of
February 1, 2012. Dr. Lewis’ opinion is equivocal in that he partially attributes appellant’s right
knee condition to cumulative trauma and deterioration over a period of time. He failed to
sufficiently explain whether appellant required medical treatment beginning February 1, 2012
due to the accepted injury.10 For these reasons, the medical evidence is insufficient to establish a
8

See S.F., 59 ECAB 525 (2008).

9

William C. Thomas, 45 ECAB 591 (1994).

10

See Mary A. Ceglia, supra note 6 (appellant has the burden of furnishing medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury and supports that conclusion with sound rationale).

4

recurrence of a medical condition causally related to the accepted right knee condition. The
Board will affirm OWCP’s December 18, 2013 decision.
CONCLUSION
The Board finds that appellant has not sustained a recurrence of disability on February 1,
2012 causally related to his accepted May 13, 1982 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 14, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 11-1133
Issued: July 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 6, 2011 appellant, through her attorney, filed a timely appeal from a
December 13, 2010 merit decision of an Office of Workers’ Compensation Programs’ (OWCP)
hearing representative who affirmed her ability to work as a reception clerk. 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 the case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits based
on her capacity to earn wages as a reception clerk.
On appeal, appellant, through counsel, contends that the decision of OWCP is contrary to
fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 3, 2000 appellant, a 29-year-old distribution clerk, filed a claim of traumatic
injury to her left wrist that day while folding and banding newspapers in the performance of
duty. On June 12, 2000 OWCP accepted her claim for left wrist tendinitis, left shoulder strain
and bursitis and left forearm strain.2
On August 26, 2002 appellant stopped work and underwent left shoulder surgery on
August 28, 2002 for a subacromial decompression, thermal capsulorhaphy and installation of a
pain pump. She returned to work at limited duty on November 20, 2002. Appellant stopped
work again in August 2003. On March 15, 2006 she had surgery for a tenovagionotomy of the
first dorsal compartment and de Quervain’s release. OWCP placed appellant on the periodic
rolls. On June 13, 2007 appellant underwent a left shoulder subacromial decompression, partial
distal clavicle resection and reinsertion of pain pump.
On August 19, 2008 OWCP confirmed with appellant’s employer that her work
restrictions could not be accommodated. It referred her to vocational rehabilitation. On
October 16 and 28, 2008 appellant underwent vocational aptitude testing by William Miller,
Ph.D., a clinical psychologist, who noted her educational history as a high school graduate with
some college and a paralegal certificate. On testing, she scored within average range with
reading above a 12th grade level. While appellant expressed interest in teaching, particularly at
the elementary school level, Dr. Miller noted that testing supported her present ability to perform
as a teacher’s aide or in food service.3 She was subsequently enrolled in a 16-week vocational
skills and Dragon Dictate training program from December 1, 2008 to February 18, 2009 in
order to enhance her skills in hands-free clerical work. Appellant completed the program rated at
130+ in productivity, typing at 38 words per minute with 97 percent accuracy and having
successfully completed training in Windows XP/Internet, Word 2003, Excel 2003 and Outlook
2003.
On July 8, 2009 the vocational counselor determined the positions of reception clerk,
Department of Labor’s Dictionary of Occupational Titles No. 237.367-038, was suitable for
appellant. The vocational counselor contacted Ohio Employment Services to determine that the
job was being performed in sufficient numbers in appellant’s commuting area such that it was
reasonably available to her at a weekly wage of $476.00. The duties of a reception clerk
included: receiving callers at an establishment and directing them to their destination; receiving
incoming telephone calls and obtaining names and arranging appointments; typing memos,
reports or other documents and performing a variety of clerical duties. The position was
primarily performed indoors without exposure to weather with sedentary physical demands.
Appellant was referred for 12 sessions of counseling by Dr. Weinstein with concurrent
job placement services from July 16 to October 16, 2009. The record reflects that as of
2

The record reflects that appellant is right-hand dominant and has preexisting nonemployment-related conditions
of depression and bipolar disorder.
3

Vocational rehabilitation reports of record noted that work at an elementary level or in child care was found not
suitable for appellant based on her preexisting emotional conditions and her accepted left wrist condition.

2

September 11, 2009 the case was placed in an interrupted status as she declined job placement
assistance for her return to employment. Appellant was not interested in work as a receptionist
or administrative clerk and planned on enrolling at a local community college in the child
development area.4
By letter dated September 25, 2009, OWCP informed appellant that, based on
information from the vocational rehabilitation agency, it appeared that she had discontinued
good faith participation in an OWCP-approved job placement program, as she was refusing to
work in job placement. Appellant was given 30 days to contact OWCP and resume a good faith
effort, and was instructed that, if she did not cooperate, action would be taken to reduce her
compensation to reflect the wage-earning capacity that she would have in the job that the
rehabilitation counselor found to be within her restrictions and abilities. She continued her
independent studies and advised OWCP that efforts to find employment at local day care centers
were unsuccessful.
On March 10, 2010 the vocational counselor stopped the vocational rehabilitation
program, noting that appellant had not obtained employment in the child care area; a field
deemed unsuitable based on her medical conditions and work restrictions. The case was referred
back to the claims examiner for appropriate action.
By letter dated March 12, 2010, OWCP asked Dr. Daniel A. Breitenbach, an attending
internist, to address whether appellant was physically capable of performing the work of
reception clerk. It enclosed the job classification for a receptionist. In a response dated
March 18, 2010, Dr. Breitenbach stated that appellant still suffered from tendinitis of the left
wrist despite having surgery and that she also had ongoing tendinitis of the left shoulder, despite
surgery. He found that she was capable of performing the job as a reception clerk as long as she
was restricted from using her left arm or hand.
In an April 12, 2010 notice, OWCP advised appellant that it proposed reducing her
wage-loss benefits as the medical evidence established that she was no longer totally disabled. It
found that she had the capacity to earn wages as a full-time reception clerk at the rate of $476.00
a week. In an attached memorandum, OWCP noted that appellant was unsuccessful in obtaining
employment in the field of child care, an employment option that had specifically been ruled out
in her case based on her preexisting emotional problems and her accepted left upper extremity
condition. As appellant elected not to continue with a job search in the approved vocational
field, it was found that after training she had the capacity for employment as a reception clerk,
within the work restrictions set forth by her attending physician. An open labor market survey of
her commuting area found that such jobs were reasonably available and medically and
vocationally suitable.
By decision dated May 19, 2010, OWCP reduced appellant’s benefits effective May 17,
2010 to find she had a 50 percent wage-earning capacity as a reception clerk.5
4

The record reveals appellant completed the first semester of four courses with three B’s and an A.

5

OWCP initially issued a wage-earning capacity decision on May 17, 2010 that was corrected based on an
amended computation under the Shadrick formula.

3

By letter dated May 25, 2010, appellant, through her attorney, requested a telephonic
hearing that was held on September 9, 2010. She noted her disagreement with the determination
that she could work as a receptionist. Appellant learned the Dragon Dictation system and other
programs. She currently attended classes and took notes by hand and used a voice recorder for
lectures and a rolling bag to carry books. Appellant noted that she had not looked for a
receptionist position but had unsuccessfully applied to work at day care centers. She testified
that she was halfway through a two-year degree program in early childhood education and still
experienced pain in her nondominant arm.
Appellant submitted a magnetic resonance imaging scan report by Dr. Michael J. Paley, a
Board-certified radiologist, who found supraspinatus tendinopathy with no frank rotator cuff
tear. In an October 18, 2010 report, Dr. Breitenbach reiterated that she should not use her left
hand to lift items as much as one pound. Appellant was not to type with that hand and had prior
surgery for tendinitis in the wrist. Due to residuals of tendinitis in her left wrist, she was not to
use that hand in any work activities.
By decision dated December 13, 2010, OWCP’s hearing representative affirmed the
May 19, 2010 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to support termination or modification of compensation benefits.6
Section 8115(a) of FECA7 provides in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by her actual earnings if her actual
earnings fairly and reasonably represent her wage-earning capacity. Generally, wages actually
earned are the best measure of a wage-earning capacity and in the absence of evidence showing
they do not fairly and reasonably represent the injured employee’s wage-earning capacity, must
be accepted as such measure.8
If the actual earnings do not fairly and reasonably represent wage-earning capacity or if
the employee has no actual earnings, her wage-earning capacity is determined with due regard to
the nature of her injury, her degree of physical impairment, her usual employment, her age, her
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect her wage-earning capacity in her disabled condition.9
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.10 The job selected for determining wage-earning
6

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984). See Pope D. Cox, 39
ECAB 143, 148 (1988); 5 U.S.C. § 8101.
7

5 U.S.C. § 8115.

8

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

9

See Pope D. Cox, supra note 6; 5 U.S.C. § 8115(a).

10

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

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capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.11 In determining an employee’s wage-earning capacity, OWCP may
not select a makeshift or odd-lot position or one not reasonably available on the open labor
market.12
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles (DOT) or otherwise available in the
open labor market, that fits that employee’s capabilities with regards to her physical limitation,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.13 Finally, application of the principles set forth
in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.14
Compensation for loss of wage-earning capacity is based upon loss of the capacity to earn
and not on actual wages lost.15 Compensation payments are based on the wage-earning capacity
determination, which remains undisturbed until properly modified.16
ANALYSIS
Appellant sustained a left shoulder strain and bursitis, forearm strain and wrist tendinitis
in the performance of duty. She underwent surgery on August 28, 2002, March 15, 2006 and
June 13, 2007 and was placed on the periodic rolls in receipt of compensation. Appellant’s
attending physicians supported her capacity to return to full-time work with limitations on the
use of her left (nondominant) arm. As her employer could not accommodate her work
restrictions, she was referred to vocational rehabilitation.
Appellant underwent vocational aptitude testing by Dr. Miller, a clinical psychologist,
who noted her educational history as a high school graduate who had completed some college
and a paralegal training program in which she was certified. On testing, she expressed an
interest in teaching at the elementary school level or in child care, but the record reflects that
such work was found not appropriate based on her preexisting depression and bipolar disorder
and the residuals of her work-related injury, which limited use of her left arm as it pertained to
lifting or carrying items. In order to facilitate her ability to perform the duties of a reception
11

Id.

12

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

13

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

14

Id. See Shadrick, 5 ECAB 376 (1953).

15

D.G., Docket No. 11-360 (issued October 25, 2011); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); Roy
Matthew Lyon, 27 ECAB 186, 190 (1975).
16

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

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clerk, appellant was referred to a training program from December 1, 2008 to February 18, 2009.
She successfully completed the program in using Dragon Dictate and other software programs
related to working in an office setting.
On July 8, 2009 the vocational rehabilitation counselor determined that the position of
reception clerk, listed in .the Department of Labor’s Dictionary of Occupational Titles DOT No.
237.367-038, was suitable for appellant based on her education and physical limitations. The
Ohio State Employment Services was contacted and it was verified that such positions were
being performed in appellant’s commuting area to be found reasonably available at a weekly
wage of $476.00.
Appellant was referred for further counseling with Dr. Miller and concurrent job
placement service, but she reiterated her preference for work in the child-development area. She
subsequently enrolled in a local community college and commenced independent studies.
Appellant was notified by OWCP on September 25, 2009 that she had discontinued good faith
participation in the approved job placement program. Through the fall 2009, she attempted to
find employment with local day care centers but was unsuccessful. On March 10, 2010 the
vocational counselor stopped the rehabilitation program; noting that the field of child care had
been found unsuitable based on appellant’s medical conditions and work restrictions.
OWCP contacted Dr. Breitenbach, an attending physician, for an opinion on appellant’s
physical capacity to perform the duties of a receptionist clerk. Dr. Breitenbach responded that
appellant still had tendinitis of the left wrist and shoulder, but was capable of performing the job
of reception clerk as long as she was restricted from the use of her nondominant left arm or hand.
The Board finds that the May 19, 2010 wage-earning capacity determination of OWCP
properly reduced appellant’s wage-loss benefits based on her ability to perform the duties of a
reception clerk. The weight of the factual and medical evidence of record establishes that
appellant has the educational background and training to successfully perform work in an office
setting as a receptionist clerk and possesses the physical capacity to perform the sedentary duties
of the selected position with limitations on use of her left arm. OWCP took into consideration
her preexisting emotional conditions in the selection of the reception clerk position.
Furthermore, the vocational counselor obtained information concerning the wage rate and job
availability in appellant’s commuting area from the State of Ohio. Thereafter, the principles of
Albert C. Shadrick were applied to find that appellant had a 50 percent wage-earning capacity.
At the hearing below, appellant noted that she learned Dragon Dictate and attended
classes where she took notes by hand, used a voice recorder for lectures and a rolling bag to
carry books. While she reiterated her preference to work in the area of elementary education or
early childhood development, the vocational counselor determined that such work was unsuitable
based on her emotional condition and limitations in use of the left arm. The Board has
recognized that the rehabilitation counselors are experts in the field of vocational rehabilitation
and a claims examiner may rely on his or her opinion as to whether a job is reasonably available
and vocationally suitable to the claimant.17
17

See Lawrence D. Price, 54 ECAB 590 (2003).

6

CONCLUSION
The Board finds that OWCP properly determined that appellant has the capacity to earn
wages in the constructed position of reception clerk.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERIVCE, POST OFFICE,
)
Mobile, AL, Employer
)
___________________________________________ )
B.M., Appellant

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

Docket No. 11-1468
Issued: January 12, 2012

Case Submitted on the Record

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

On June 8, 2011 appellant filed a timely appeal from the March 10, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied her claim for an
additional schedule award.1
The Board has duly considered the matter and will affirm OWCP’s March 10, 2011
decision. Appellant expresses no disagreement with the schedule award per se. Rather, she
essentially argues only that she filed her schedule award claim before OWCP began using the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2009) on May 1, 2009 and that her schedule award claim should be adjudicated
under the fifth edition of the A.M.A., Guides (2001).
The Board notes, however, that for decisions issued beginning May 1, 2009, the sixth
edition of the A.M.A., Guides will be used.2 To the extent that appellant is arguing that she was
deprived of her due process rights regarding a determination under the fifth edition and that a
protected property interest cannot be deprived without due process, the Board notes that such
assertions are similar to arguments made in the cases of Goldberg v. Kelly, 397 U.S. 254 (1970)
and Mathews v. Eldridge, 424 U.S. 319 (1976). These cases held only that a claimant who was
1

This case was previously on appeal before the Board. In a decision dated November 19, 2010, the Board found
that the case was not in posture for decision regarding appellant’s claim for a schedule award, as OWCP did not
properly select an impartial medical specialist. The Board remanded the case for selection of a new impartial
specialist in accordance with OWCP’s procedures. Docket No. 10-479 (issued November 19, 2010).
2

FECA Bulletin No. 09-03 (issued March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

in receipt of benefits (in Goldberg welfare benefits and in Mathews social security benefits)
could not have those benefits terminated without procedural due process. In this case, appellant
simply made a claim for a schedule award. She was not in receipt of schedule award benefits nor
was OWCP attempting to terminate benefits. Appellant had no vested right to a schedule award
under the fifth edition of the A.M.A., Guides. In Harry D. Butler,3 the Board noted that
Congress delegated authority to the Director of OWCP regarding the specific methods by which
permanent impairment is to be rated. Pursuant to this authority, the Director adopted the
A.M.A., Guides as a uniform standard applicable to all claimants and the Board has concurred in
the adoption.4 On March 15, 2009 the Director exercised authority to advise that as of May 1,
2009 all schedule award decisions of OWCP should reflect use of the sixth edition of the
A.M.A., Guides.5 The applicable date of the sixth edition is as of the schedule award decision
reached. It is not determined by either the date of maximum medical improvement or when the
claim for such award was filed. Accordingly,
IT IS HEREBY ORDERED THAT the March 10, 2011 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

43 ECAB 859 (1992).

4

Id. at 866.

5

FECA Bulletin No. 09-03, supra note 2. The FECA Bulletin was incorporated in the Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.8 08.6(a) (January 2010).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 20-1210
Issued: June 3, 2021

Case Submitted on the Record

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

JURISDICTION
On May 26, 2020 appellant filed a timely appeal from an April 24, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $19,667.43 for which she was without fault
because she concurrently received FECA wage-loss compensation and Social Security
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 24, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

Administration (SSA) age-related retirement benefits for the period October 1, 2017 through
October 12, 2019 without an appropriate offset; (2) whether it properly denied waiver of recovery
of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $445.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 3, 2000 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she became entangled in a screen door and fell while in the
performance of duty. She stopped work that day. OWCP accepted appellant’s claim for cervical
and lumbar sprains, bilateral shoulder strains, bilateral bucket handle tear of the medial meniscus,
degenerative cervical and lumbar disc disease, and bilateral chondromalacia patellae. Appellant
underwent several surgical procedures, which OWCP authorized. OWCP paid appellant wageloss compensation on the periodic rolls effective March 20, 2000. A Notification of Personnel
Action, PS Form 50, dated April 6, 2010 identified appellant’s retirement plan as Federal
Employees Retirement System (FERS).
On October 10, 2019 OWCP received a FERS/SSA dual benefits calculation worksheet
from SSA dated October 7, 2019. This form related the following SSA benefit rates with a FERS
offset and without a FERS offset from October 2017 through December 2018: beginning
October 2017, the SSA rate with FERS was $1,058.70 and without FERS was $278.50; beginning
December 2017, the SSA rate with FERS was $1,079.80 and without FERS was $284.00;
beginning December 2018, the SSA rate with FERS was $1,110.00 and without FERS was
$291.90.
On October 15, 2019 OWCP advised appellant that it would review her case to determine
whether she had been receiving a prohibited dual benefit. It noted that if SSA had confirmed that
a portion of her SSA age-related retirement benefits were attributed to her years of federal service
as an employee under the FERS program, then that portion would require an offset from her FECA
compensation benefits.
On November 4, 2019 OWCP prepared a FERS offset calculation worksheet wherein it
noted the calculation of appellant’s SSA/FERS offset overpayment from October 1, 2017 through
October 12, 2019. The total overpayment was determined to be $19,667.43. OWCP found that
appellant received an overpayment in the amount of $1,568.97 during the period October 1 through
November 30, 2017; $9,575.84 during the period December 1, 2017 through November 30, 2018;
and $8,522.62 for the period December 1, 2018 through October 12, 2019. Based on information
provided by SSA regarding, the amount of her age-related retirement benefits, which were
attributable to federal service, OWCP adjusted appellant’s FECA wage-loss compensation
effective October 13, 2019.
3

Docket No. 04-1297 (issued October 15, 2004).

2

In a November 5, 2019 letter, OWCP notified appellant that her FECA benefits were being
adjusted based on the FERS portion of SSA benefits that were attributable to federal service. It
advised appellant that she would receive $1,833.37 in FECA wage-loss compensation every four
weeks after the SSA offset.
On November 20, 2019 OWCP issued a preliminary overpayment determination finding
that an overpayment of compensation in the amount of $19,667.43 had been created. It explained
that the overpayment occurred because the SSA age-related retirement benefits appellant received
from October 1, 2017 through October 12, 2019 were partially based on credits earned while
working for the Federal Government, and that this portion of her SSA benefits constituted a
prohibited dual benefit. OWCP found appellant without fault in the creation of the overpayment
and forwarded an overpayment action request form and an overpayment recovery questionnaire
(Form OWCP-20) for her completion. It requested that she provide supporting financial
documentation, including income tax returns, bank account statements, bills and cancelled checks,
pay slips, and any other records to support her reported income and expenses. Additionally,
OWCP notified her that, within 30 days of the date of the letter, she could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
In an overpayment action request form dated December 12, 2019, appellant requested that
OWCP make a decision on the written evidence regarding possible waiver and recovery of the
overpayment, which had occurred through no fault of her own. She also indicated that she could
not afford to repay the overpayment. On an attached Form OWCP-20 dated December 12, 2019
appellant reported a total monthly income of $2,943.37. She noted that she supported, by
sometimes helping out, her 72-year-old sister and 43-year-old son. Appellant reported total
monthly household expenses of $5,919.25. She indicated that she had $125.00 in cash, $11,172.17
in her checking account; and approximately $879.00 in savings, for total assets of $12,176.17.
Appellant submitted limited documentation of income and expenses, consisting of receipts of
payments from a healthcare provider, totaling $50.98, and an invoice from AAA battery for
$140.00.4
By decision dated April 24, 2020, OWCP finalized its preliminary overpayment
determination, finding that appellant received an overpayment of compensation in the amount of
$19,667.43 as she concurrently received FECA wage-loss compensation and SSA age-related
retirement benefits for the period October 1, 2017 through October 12, 2019.5 It further found that
she was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment because the evidence of record was insufficient to establish that recovery of an
overpayment would defeat the purpose of FECA or would be against equity and good conscience.
OWCP required recovery of the overpayment by deducting $445.00 every 28 days from
appellant’s continuing compensation payments.
4
In a March 11, 2020 letter, OWCP informed appellant that per a February 6, 2020 letter from Office of Personnel
Management (OPM) she had received dual benefits of retirement and FECA compensation for the period October 1
through November 21, 2011 for an overpayment of $2,958.00. It noted that, beginning March 1, 2020, $100.00 would
be deducted every four weeks from her FECA compensation payments until the overpayment is repaid in full.
5
OWCP indicated that November 12, 2019 was the end period of the overpayment. This, however, appears to be
a typographical error as the correct date was October 12, 2019.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.7
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,667.43, for which she was without fault, because she
concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
age-related retirement benefits for the period October 1, 2017 through October 12, 2019 without
an appropriate offset.10
The evidence of record indicates that, while appellant was receiving compensation for
wage-loss compensation benefits under FECA, she was also receiving SSA age-related retirement
benefits based upon her federal service. A claimant cannot receive both compensation for wageloss compensation benefits under FECA and SSA age-related retirement benefits attributable to
federal service for the same period.11 The information provided by SSA established that appellant
received SSA age-related retirement benefits that were attributable to federal service during the
period October 1, 2017 through October 12, 2019. Consequently, the Board finds that fact of
overpayment has been established.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8
20 C.F.R. § 10.421(d); see P.B., Docket No. 20-0862 (issued November 25, 2020); see S.M., Docket No. 17-1802
(issued August 20, 2018); L.J., 59 ECAB 264 (2007).
9

FECA Bulletin No. 97-09 (issued February 3, 1997); see P.B., id.; see also N.B., Docket No. 18-0795 (issued
January 4, 2019).
10

R.C., Docket No. 19-0845 (issued February 3, 2020); A.F., Docket No. 19-0054 (issued June 12, 2019).

11

Supra note 9.

4

federal service. SSA provided its rates with FERS and without FERS for specific periods from
October 1, 2017 through December 2018. OWCP provided its calculations for each relevant
period based on SSA’s worksheet and properly determined that she received an overpayment in
the amount of $19,667.43. The Board thus finds that appellant received prohibited dual benefits
for the period October 1, 2017 through October 12, 2019 totaling $19,667.43.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.12
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.13
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.14 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.15
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.16 Failure to submit the requested information

12
5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued
February 12, 2020); A.F., supra note 10.
13

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

14

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
15

Id. at § 10.437(a)(b).

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

5

within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.18
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she has not provided the necessary supporting financial
information. Appellant submitted a completed Form OWCP-20 on December 12, 2019 and noted
a total monthly income of $2,943.37, total monthly expenses of $5,919.25. She indicated that she
had a total of $12,176.17 in cash and checking and savings accounts. However, the only supporting
financial documentation that appellant submitted were two receipts from a healthcare provider,
which noted a balance, and an AAA battery invoice. No other documentation supporting her
purported income or expenses was submitted. Although appellant had been advised to submit
documentation substantiating her income and expenses in OWCP’s preliminary overpayment
determination dated November 20, 2019, she failed to provide sufficient documentation of her
income and expenses as required by section 10.438 of its regulations.19 OWCP, therefore, did not
have the financial information necessary to determine if appellant needed substantially all of her
current income to meet current ordinary and necessary living expenses and, also, if her assets
exceeded a specified amount as determined by OWCP.20
The Board also finds that appellant has not established that she was entitled to waiver on
the basis that recovery of the overpayment would be against equity and good conscience. In the
overpayment action request form, appellant indicated that she could not possibly afford to pay the
overpayment. She, however, did not provide any financial information to support her allegations.21
Appellant, therefore, has not established that recovery of the overpayment was against
equity and good conscience.22

17

Id. at § 10.438(b).

18

Id. § 10.436.

19

P.B., Docket No. 20-0862 (issued November 25, 2020); R.W., Docket No. 18-1059 (issued February 6, 2019).

20

Supra notes 16 and 19.

21

See P.B., supra note 19.

22

P.B., id.; M.A., Docket No. 18-1666 (issued April 26, 2019).

6

Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, she has not shown that OWCP
improperly refused to waive recovery of the overpayment.23
On appeal appellant argues that she will experience severe hardship as she has less income
coming in and the same expenses going out. However, for the reasons stated above, she has not
shown that OWCP improperly denied waiver of recovery of the overpayment. While appellant
also indicated that she had provided OWCP with bank statements from April, August, September,
October, and November 2019, which included cancelled checks with the bills and expenses she
paid along with other cancelled checks and receipts, the record was devoid of such evidence at the
time OWCP issued its final overpayment determination.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.24
Section 10.441(a) of OWCP’s regulations25 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”26
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$445.00 from appellant’s continuing compensation payments every 28 days.
OWCP provided appellant a Form OWCP-20 with its November 20, 2019 preliminary
overpayment determination. It afforded her the opportunity to provide appropriate financial
information and documentation to OWCP.27 Although appellant completed the Form OWCP-20
overpayment recovery questionnaire, she did not provide sufficient financial documentation to
support her income and expenses prior to the final April 24, 2020 overpayment determination. The
overpaid individual is responsible for providing information about income, expenses, and assets

23

See S.W., Docket No. 20-0363 (issued November 23, 2020); B.C., Docket No. 19-0629 (issued June 2, 2020).

24

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

25

Id. at § 10.441(a).

26

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

27

Id. at § 10.438.

7

as specified by OWCP.28 When an individual fails to provide requested financial information,
OWCP shall follow minimum collection guidelines designed to collect the debt promptly and in
full.29 The Board, therefore, finds that OWCP properly required recovery of the overpayment from
appellant’s continuing compensation payments at the rate of $445.00 every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,667.43 for which she was without fault, because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period October 1, 2017 through October 12, 2019 without appropriate offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment and properly
required recovery of the overpayment by deducting $445.00 from her continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 3, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

28

Id. at § 10.438(a); see M.S., supra note 16.

29
See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, supra note 14 at Chapter 6.400.3 (September 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER EAST, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 08-2058
Issued: April 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from an August 29, 2007 Office of
Workers’ Compensation Programs’ schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over this schedule award issue.
ISSUE
The issue is whether appellant has a ratable hearing loss entitling him to a schedule award
and whether he is entitled to hearing aids.
FACTUAL HISTORY
On February 15, 2007 appellant, then a 58-year-old aircraft engine examiner, filed an
occupational disease claim alleging that he sustained noise-induced sensorineural hearing loss
due to high noise levels in the performance of duty. He first became aware of his hearing loss on
June 23, 2004 after undergoing an audiological examination, but was not aware of the deadline

to file a claim. The employing establishment indicated that appellant did not stop work and
continued to be exposed to workplace noise.
On February 23, 2007 the Office advised appellant of the factual and medical evidence
needed to support his claim. Appellant submitted a statement dated January 31, 2007 in which
he described the various positions he had held at the employing establishment since starting work
on June 22, 1971. He described the noise exposure associated with each position. Appellant and
the employing establishment submitted various employment records including several
audiograms dated between September 11, 1972 and June 23, 2004. In an April 1, 2007
statement, he noted that he had no previous ear problems.
On May 16, 2007 the Office referred appellant with a statement of accepted facts to
Dr. Charles Beasley, a Board-certified otolaryngologist, for a second opinion evaluation.
In a May 30, 2007 report, Dr. Beasley compared audiometric data from the beginning of
appellant’s noise exposure in June 1971 to the data derived at the examination that day. He
indicated that appellant’s threshold had decreased 15 to 35 decibels (dB) at 3,000 to 6,000 hertz
(Hz) bilaterally. Dr. Beasley also indicated that appellant’s sensorineural loss was in excess of
what would be normally predicated on the basis of presbycusis. He advised that appellant’s
workplace exposure was sufficient in intensity and duration to cause the hearing loss.
Dr. Beasley diagnosed bilateral sensorineural hearing loss due to noise exposure encountered at
the employing establishment. He indicated that his position was supported by the characteristic
of the audiogram. Dr. Beasley recommended noise protection, a hearing aid evaluation and an
annual audiogram. A May 30, 2007 audiogram performed on Dr. Beasley’s behalf showed the
following decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz: 10, 10, 10 and 25 for
the right ear and 15, 10, 5 and 45 for the left ear.
On June 5, 2007 the Office accepted appellant’s claim for binaural sensorineural hearing
loss. On June 5, 2007 an Office medical adviser reviewed Dr. Beasley’s May 30, 2007 report
and the audiometric data obtained by Dr. Beasley. The medical adviser noted that the date of
Dr. Beasley’s report was the date of maximum improvement. He applied the audiometric data to
the Office’s standard for evaluating hearing loss and determined that appellant had a zero percent
monaural hearing loss in the right ear and a zero percent monaural hearing loss in the left ear.
The Office medical adviser concluded that appellant had a nonratable hearing loss. He further
opined that hearing aids should not be authorized.
In an August 29, 2007 decision, the Office denied appellant’s schedule award claim and
hearing aids, finding that his hearing loss was not severe enough to be considered ratable and
that the evidence did not establish that he needed hearing aids.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
1

5 U.S.C. §§ 8101-8193.

2

the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001), has been adopted by the Office for evaluating schedule
losses and the Board has concurred in such adoption.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second
(cps), the losses at each frequency are added up and averaged. Then, the “fence” of 25 decibels
is deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions. The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss. The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.3
ANALYSIS
Appellant submitted a schedule award claim for sensorineural hearing loss and the Office
developed the claim by referring him to Dr. Beasley. On May 30, 2007 Dr. Beasley examined
appellant and audiometric testing was performed on appellant. He opined that the noise
exposure in appellant’s workplace was sufficient to cause bilateral sensorineural hearing loss.
Dr. Beasley recommended hearing protection, evaluation for hearing aids and annual
audiograms.
An Office medical adviser applied the Office’s standard procedures to the May 30, 2007
audiogram. It tested decibel losses at 500, 1,000, 2,000 and 3,000 cps and recorded decibel
losses of 10, 10, 10 and 25 respectively in the right ear. The total decibel loss in the right ear is
55. When divided by 4, the result is an average hearing loss of 13.75 decibels. The average
hearing loss of 13.75 is reduced by the fence of 25 decibels to equal 0, which when multiplied by
the established factor of 1.5, resulted in 0 percent impairment of the right ear. The audiogram
tested decibel losses for the left ear at 500, 1,000, 2,000 and 3,000 cps and recorded decibel
losses of 15, 10, 5 and 45 respectively. The total decibel loss in the left ear is 75. When divided
by 4, the result is an average hearing loss of 18.75 decibels. The average hearing loss of 18.75 is
reduced by the fence of 25 decibels to equal 0, which when multiplied by the established factor
of 1.5, resulted in 0 percent impairment of the right ear. The Board finds that the Office medical
adviser properly applied the standards to the findings of the May 30, 2007 audiogram and
concluded that appellant did not have a ratable hearing loss for schedule award purposes.

2

R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

3

E.S., 59 ECAB ___ (Docket No. 07-1587, issued December 10, 2007); Donald Stockstad, 53 ECAB 301 (2002),
petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).

3

The Office medical adviser also opined that hearing aids should not be authorized.
Dr. Beasley, while generally recommending an evaluation for hearing aids, did not recommend
hearing aids at the time of his examination. As such, there is no current medical evidence
supporting a need for hearing aids. Thus, the Office properly denied hearing aids.4
On appeal, appellant asserts that he sustained a permanent hearing loss that affects his life
daily. However, the Board notes that the Office applied its standardized procedure for
calculating permanent impairment for loss of hearing. Under this standardized procedure,
appellant’s hearing loss is not ratable for schedule award purposes. The Board has also held that
factors such as limitations on daily activities do not go into the calculation of a schedule award.5
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss for schedule award
purposes.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 29, 2007 is affirmed.
Issued: April 13, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4

This does not preclude appellant from seeking authorization for hearing aids or other appropriate medical
treatment at some future point.
5

E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket No. 11-1639
Issued: March 15, 2012

Case Submitted on the Record

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

JURISDICTION
On July 6, 2011 appellant, through her attorney, filed a timely appeal from a May 16,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a modification of her February 5, 2007
wage-earning capacity determination was warranted.
FACTUAL HISTORY
The case has been before the Board on prior appeals. The Board reversed an October 21,
2003 OWCP decision terminating appellant’s compensation on the grounds that she refused an
1

5 U.S.C. § 8101 et seq.

offer of suitable work.2 By decision dated January 17, 2007, the Board found that OWCP had
not properly calculated her compensation for the period August 31, 2004 to April 1, 2005 and
commencing July 12, 2005.3 The Board noted that, pursuant to OWCP’s regulations, it must
determine the current pay rate for the date-of-injury job and OWCP had failed to make adequate
findings in this regard. In response, OWCP issued a February 2, 2007 decision that found the
date of injury was July 31, 1997 and the current pay rate for the date-of-injury position was
$861.48 per week.
By decision dated October 11, 2007, the Board affirmed OWCP’s February 2, 2007
decision.4 In addition, the Board affirmed a November 17, 2006 OWCP decision, denying
modification of a June 7, 2006 wage-earning capacity determination based on appellant’s actual
earnings since April 3, 2006. On February 5, 2007 OWCP modified its June 7, 2006
wage-earning capacity determination to reflect pay rate calculations in accord with the
February 2, 2007 decision. As in the June 7, 2006 decision, it found that appellant had actual
earnings of $733.15 commencing April 3, 2006. With respect to computation of compensation,
the pay rate for compensation purposes was $980.54, based on a recurrence of disability on
December 12, 2000. The current pay rate for the date-of-injury job was $861.48, resulting in a
loss of wage-earning capacity of 15 percent of the weekly pay rate.
By decision dated December 8, 2008, the Board affirmed OWCP decisions dated
January 14 and March 17, 2008, finding that appellant did not establish that modification of the
February 5, 2007 wage-earning capacity determination was warranted.5 The history of the case
is contained in the Board’s prior decisions and is incorporated herein by reference.
On March 18, 2010 OWCP received a March 10, 2010 report from a physician’s assistant
that provided results on examination.6 There is also a letter dated March 10, 2010, from
Dr. Callewart to the employing establishment stating that appellant’s work restrictions were
permanent. On September 17, 2010 appellant submitted a claim for compensation (Form CA-7)
commencing April 2, 2006. By decision dated October 27, 2010, OWCP denied modification of
the February 5, 2007 wage-earning capacity determination.
By letter dated November 3, 2010, appellant requested a telephonic hearing before an
OWCP hearing representative. She submitted a desk audit summary dated July 7, 2010. The
summary stated that appellant was currently a Contact Representative and requested desk audit
because her work duties were different from those in her position description. It was noted that,
as of October 1, 2009, she was moved from a front desk location and no longer had contact with

2

Docket No. 04-341 (issued November 12, 2004).

3

Docket No. 06-129 (issued January 17, 2007).

4

Docket Nos. 07-1493 and 07-938 (issued October 11, 2007).

5

Docket No. 08-1975 (issued December 8, 2008).

6

The physician’s assistant stated “case discussed” with Dr. Craig Callewart, an orthopedic surgeon, but the report
does not contain Dr. Callewart’s signature.

2

claimants or representatives. The desk audit concluded that the position should be reclassified
under OPM classification standards.
In a November 4, 2010 statement, appellant argued that the desk audit showed that the
employing establishment had submitted erroneous information regarding her position as a front
desk representative. She asserted that there was no such position as a front desk receptionist.
Appellant submitted an SF-50 indicating that her position effective April 2, 2006 was entitled a
contact representative. On December 21, 2010 she resubmitted an October 17, 2007 report from
Dr. Callewart, which the Board had reviewed in its December 8, 2008 decision.
A telephonic hearing was held on March 14, 2011. Appellant indicated that she had
worked at the front desk, but did not perform the duties of a contact representative. By decision
dated May 16, 2011, the hearing representative denied modification of the wage-earning capacity
determination.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS
In the present case, appellant seeks modification of a February 5, 2007 wage-earning
capacity determination based on her actual earnings from April 2, 2006 as a front desk
receptionist. It is her burden of proof to show that a modification is warranted. Appellant does
not appear to argue that there was a material change in the nature and extent in the employmentrelated condition. She resubmitted an October 17, 2007 report from Dr. Callewart that
previously had been reviewed by the Board and found insufficient to warrant a modification.
The March 10, 2010 report from a physician’s assistant is not considered probative medical
evidence as a physician’s assistant is not a physician under FECA.9 Dr. Callewart’s March 10,
2010 letter does not show a change in the employment-related condition. In addition, appellant
does not argue that she has been retrained or vocationally rehabilitated.
The remaining standard for modification of wage-earning capacity determination is
establishing that the original determination was erroneous. Appellant has submitted a July 7,
2010 desk audit of her current position and argues that the wage-earning capacity determination
was erroneous. She asserts that her job title was a contact representative and she never worked at
7

Sue A. Sedgwick, 45 ECAB 211 (1993).

8

Id.

9

George H. Clark, 56 ECAB 162 (2004). A report countersigned by a physician would constitute medical
evidence from a physician, but there was no signature from Dr. Callewart. See Lyle Dayberry, 48 ECAB
369 (1998).

3

that position, that the job she worked at was not properly classified and was specially tailored to
her needs.
The Board notes that the December 22, 2005 job offer indicated the “organizational title”
was contact representative and the “position title” was front desk receptionist. The job offer had
a clear description of front desk duties that would be involved. The statements in the desk audit,
as well as appellant’s own statements at the March 24, 2010 hearing, indicate that she did work
at the front desk through October 2009. According to the desk audit her duties did change in
October 2009 and the July 7, 2010 desk audit found that the current job duties were not properly
classified. But this does not establish error in the February 5, 2007 wage-earning capacity
determination. The front desk position offered to appellant had an official title and job
description, it required the performance of meaningful tasks and there was no evidence it was a
temporary job. The evidence does not support that the job was a makeshift job or otherwise
inappropriate for a wage-earning capacity determination.10
Based on the evidence of record, the Board finds that appellant did not establish that the
original wage-earning capacity determination was erroneous. Appellant did not show a material
change in the nature and extent of an employment-related condition or show the original
determination was erroneous. It is her burden of proof to establish that a modification of the
wage-earning capacity determination was warranted and she did not meet her burden in this case.
Appellant may request modification of the wage-earning capacity determination, supported by
new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that a
modification of the wage-earning capacity determination was warranted.

10

A makeshift or odd lot position is a job specifically designed for a claimant’s particular needs and is not
appropriate for a wage-earning capacity determination. M.S., Docket No. 11-158 (issued December 22, 2011).
Among the factors considered in determining that a position is makeshift include, e.g., whether the position did not
have an official title or formal position description; whether there were such strict physical limitations indicating the
claimant would not be able to secure a position in the community at large with such limited duties; whether the
claimant did not perform any meaningful tasks in the position; and whether the job appeared to be temporary in
nature. See A.J., Docket No. 10-619 (issued June 29, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2011 is affirmed.
Issued: March 15, 2012
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0550
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On February 22, 2021 appellant filed a timely appeal from a January 22, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 5, 2020 appellant, then a 54-year-old postal carrier, filed an occupational disease
claim (Form CA-2) alleging that he suffered a torn left meniscus due to factors of his federal
employment, including repetitive and prolonged walking for 8 to 10 hours per day for seven years.
He further noted that he switched his delivery route after he realized that his knee was injured.
1

5 U.S.C. § 8101 et seq.

Appellant underwent meniscus surgery in 2016 and alleged that his knee condition has worsened.
He noted that he first became aware of his condition on January 1, 2010 and first realized that it
was caused or aggravated by his federal employment on April 20, 2020. Appellant did not stop
work.
In an attached statement, appellant explained that about 10 years prior he realized that the
route he was walking was causing pain in his left knee, noting that the route contained 100 houses
with four to five steps. He walked this route for five years before switching to a different route
with fewer steps. Appellant reported that changing his route helped with his knee pain , but that
the pain was still present. In June 2016, he was involved in a motorcycle accident that forced him
to miss six weeks of work due to a broken clavicle and two broken ribs he sustained in the accident.
Four weeks after his accident, appellant underwent surgery to repair a torn meniscus in his left
knee. He did not file a workers’ compensation claim at that time because he was already off from
work and did not want to have to go back in to take more time off from work for his knee.
Appellant subsequently returned to work two weeks later. In the fall of 2019 his knee pain returned
slowly and was now constant.
In an April 7, 2015 diagnostic report Dr. Tariq Suwan, a Board-certified radiologist,
performed an x-ray scan of appellant’s left knee and noted that it was unremarkable.
In an April 16, 2015 diagnostic report, Dr. Mark Fritze, a Board-certified diagnostic
radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s left knee,
observing degenerative changes of the medical meniscus.
Dr. Brennen Lucas, a Board-certified orthopedic surgeon, in an April 29, 2015 medical
report, evaluated appellant for complaints of left knee pain, swelling, and stiffness. Appellant
noted that his pain began approximately five weeks earlier without an injury. Dr. Lucas reviewed
the April 7 and 16, 2015 diagnostic studies of appellant’s left knee which found degenerative
changes of the medial meniscus. He diagnosed left knee pain, left internal derangement of the
knee, and left derangement of the medial meniscus. Dr. Lucas expressed concern that appellant
may have sustained a small medial meniscus tear and administered a corticosteroid injection to
appellant’s left knee to treat his symptoms.
In an April 27, 2020 medical note, Malissa Paxton, a physician assistant, explained that
appellant underwent an MRI scan on April 23, 2020 that revealed a probable tear of his left
meniscus. She opined that his job detail of walking aggravated his pain daily.
In a May 12, 2020 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the type of factual and medical evidence necessary and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
In an April 7, 2015 medical report, Dr. Kurt Hesse, Board-certified in family medicine,
evaluated appellant for pain in his low back and left knee. On examination, he diagnosed low back
pain and left knee pain and prescribed medications to treat appellant’s symptoms.

2

In a July 13, 2015 medical report, appellant informed Dr. Lucas that he was experiencing
pain in his left knee and of his employment duties involved excessive walking to carry mail. On
review of an MRI scan of appellant’s left knee and examination, Dr. Lucas diagnosed left internal
derangement of the knee, left derangement of the medial meniscus and left knee pain. He arranged
for appellant to undergo surgery to treat his condition.
In an April 20, 2020 medical report, Ms. Paxton noted that appellant previously underwent
meniscus surgery in 2016 and that he was now experiencing pain in his left knee. Appellant
reported that he suffered no injury to his knee and opined that his condition was work related.
Ms. Paxton diagnosed chronic left knee pain2 and ordered that he undergo an MRI scan for further
evaluation.
In an April 23, 2020 diagnostic report, Dr. Kamran Ali, a Board-certified radiologist,
performed an MRI scan of appellant’s left knee, observing findings of appellant’s previous medial
meniscus surgery. He recorded increased T2 signal along the inferior articular surface of the
posterior horn of the medial meniscus that was suspicious for a possible retear. Dr. Ali also noted
that prior surgical changes could also appear like this.
In a May 7, 2020 medical report, Gregory Knoblauch, a physician assistant, evaluated
appellant for a possible retear of his left meniscus. Appellant informed Mr. Knoblauch that he
previously underwent an arthroscopy and partial medial meniscectomy five years p rior and that he
recently underwent an MRI scan that revealed a retear of his medial meniscus. Mr. Knoblauch
diagnosed a retear of the left knee medial meniscus and degenerative arthritis of the left knee
medial compartment/patellofemoral joint.
In a May 18, 2020 e-mail response to OWCP’s development questionnaire, T.G.,
appellant’s supervisor, noted that she did not have reason to dispute his claim as she was not his
supervisor at the time of his first surgery. She detailed his current workload in wh ich he worked
eight plus hours a day, casing mail for three to four hours and spending four to five hours walking
and standing to deliver mail. T.G. explained that appellant was previously on an overtime desired
list, which had him working additional hours, but had since removed himself from the list a couple
of months ago. Appellant had returned to working eight hours per day and reported that he did not
want to sit in the office performing limited-duty work, asserting that he would rather perform his
regular carrier assignments.
In a May 19, 2020 response to OWCP’s development questionnaire, appellant advised that
his left knee injuries began in 2010 and had since continued to hinder his ability to perform his
job. His job consisted of walking, going up and down stairs, twisting, turning, lifting, squatting,
and being on his feet for six to seven hours daily. Appellant explained that he had been performing
these duties for 16.5 years and that he did not sustain a specific injury that caused his conditions.
By decision dated June 25, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between a diagnosed medical condition and the accepted factors of his federal employment. It

2

Ms. Paxton’s medical report diagnosed chronic right knee pain; however, this appears to be a typographical error.

3

concluded therefore that the requirements had not been met to establish an injury as defined under
FECA.
On July 28, 2020 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
Appellant submitted a copy of Mr. Knoblauch’s May 7, 2020 medical report.
In a June 1, 2020 operative report, Dr. Bradley Bruner, a Board-certified orthopedic
surgeon, performed an arthroscopic left partial medial meniscectomy, an arthroscopic left loose
body removal and an arthroscopic left chondroplasty to treat appellant’s left medial meniscus tear.
Dr. Bruner reported on June 11, 2020 that he evaluated appellant following his June 1,
2020 left knee surgical procedure. He diagnosed a medial meniscus tear of the left knee, loose
body of the left knee, and possible deep vein thrombosis of the left lower extremity.
In a September 16, 2020 statement, appellant detailed his employment duties over the past
17 years in which he walked approximately four to five miles a day, lifted packages, walked up
and down stairs, bended, squatted, and stood for long periods of time. He alleged that these
activities caused him to tear his meniscus twice. Appellant attached an information sheet
explaining that postal workers were susceptible to repetitive stress injuries due to their employment
duties.
In a September 23, 2020 medical report, Dr. Bruner recounted his treatment of appellant
for a retear of appellant’s left medial meniscus. He opined that appellant’s condition was a direct
result of appellant’s work for the employing establishment over the past 17 years where appellant
carried mail for approximately 10 miles per day.
In a September 24, 2020 duty status report (Form CA-17), Dr. Bruner diagnosed a tear of
the left medial meniscus and advised that appellant was able to perform his normal work duties as
of July 13, 2020.
By decision dated October 21, 2020, an OWCP hearing representative vacated the June 25,
2020 decision and remanded the case for further development.
On remand OWCP routed the case file, along with a statement of accepted facts (SOAF),
to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for an evaluation and review of
the medical evidence of record as to whether appellant sustained a left knee condition causally
related to the accepted factors of his federal employment. In his January 7, 2021 narrative medical
report, Dr. Johnson indicated that he reviewed the SOAF as well as the medical evidence of record.
He reviewed appellant’s employment duties, history of left knee pain and left knee surgeries in
2016 and 2020. Dr. Johnson diagnosed a left knee medial meniscus tear in 2015, a left knee medial
meniscus tear in 2020 and left knee grade III chondromalacia. Referring to page 370 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 he opined that, while there was “some evidence” of kneeling and squatting,
3

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

4

the A.M.A., Guides did not mention standing or walking as a job task risk for a medial meniscus
tear. Dr. Johnson therefore concluded that appellant’s medial meniscus tears were secondary to
appellant’s preexisting, unrelated, degenerative chondromalacia and his age, but not his
employment duties. Referring to page 364 of the A.M.A., Guides, he explained that there was
“insufficient evidence” support a relationship between appellant’s occupation and his diagnosed
left knee arthritis/chondromalacia. Consequently, Dr. Johnson opined that appellant’s
chondromalacia was caused by a combination of appellant’s age and genetics, not his employment
tasks.
By de novo decision dated January 22, 2021, OWCP again denied appellant’s occupational
disease claim, finding that the medical evidence of record was insufficient to establish that his
diagnosed medical condition was causally related to the accepted factors of his federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

5

complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted factors of his federal employment.
Dr. Bruner, in his September 23, 2020 medical report, recounted his treatment for a retear
of appellant’s left medial meniscus and opined that appellant’s condition was a direct result of his
employment duties over the past 17 years where he carried mail for approximately 10 miles per
day. While he provided an affirmative opinion on causal relationship, he did not offer any medical
rationale sufficient to explain why he believes that appellant’s employment duties could have
resulted in or contributed to appellant’s diagnosed condition. Without explaining how walking
approximately 10 miles per day caused or aggravated his diagnosed medical condition,
Dr. Bruner’s September 23, 2020 medical report is of limited probative value.11
Dr. Bruner’s remaining medical evidence consisted of medical reports dated June 1 and 11,
2020 in which he indicated that he performed an arthroscopic left partial medial meniscectomy, an
arthroscopic left loose body removal, and an arthroscopic left chondroplasty to treat appellant’s
left medial meniscus tear and subsequently conducted a follow-up evaluation of his repaired knee.
He also submitted a September 24, 2020 Form CA-17 wherein he diagnosed a tear of the left
medial meniscus and advised that appellant was able to perform his normal work duties as of
July 13, 2020. However, Dr. Bruner did not offer an opinion on causal relationship in any of these
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 12 For
this reason, Dr. Bruner’s remaining medical evidence is insufficient to meet appellant’s burden of
proof.
Dr. Lucas, in medical reports dated April 29 and July 13, 2015, reviewed appellant’s
complaints of pain in his left knee and appellant’s employment duties involving walking to carry
mail. He reviewed diagnostic studies of appellant’s left knee, expressed concern that appellant
may have sustained a small medial meniscus tear, but did not offer an opinion on causal
relationship. As noted above, medical evidence that does not offer an opinion regarding the cause

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

6

of an employee’s condition is of no probative value on the issue of causal relationship. 13
Consequently, Dr. Lucas medical reports are insufficient to meet appellant’s burden of proof.
On April 7, 2015 Dr. Hesse evaluated appellant for his complaints of pain in his low back
and left knee diagnosed low back pain and left knee pain. The Board has consistently held that a
diagnosis of “pain” does not constitute the basis for payment of compensation, as pain is a
symptom not a specific diagnosis. 14 As Dr. Hesse did not offer a valid diagnosis, his April 7, 2015
medical report is insufficient to establish appellant’s claim.
Appellant submitted multiple diagnostic studies. The Board has held, however, that
diagnostic reports standing alone lack probative value on the issue of causal relationship as they
do not address the relationship between accepted employment factors and a diagnosed condition. 15
For this reason, these diagnostic reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted medical evidence by physician assistants. However, certain
healthcare providers such as physician assistants, physical therapists, nurses, and social workers
are not considered physicians as defined under FECA. 16 Consequently, their medical findings
and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.
The remaining medical evidence consisted of Dr. Johnson’s January 7, 2021 second
opinion narrative medical report wherein he opined that appellant’s conditions were caused by a
combination of appellant’s age and genetics and not his employment tasks. As his report is
well-rationalized and based on examination and an accurate history of the employment injury, the
Board finds that Dr. Johnson’s report constitutes the weight of the medical evidence. 17
As appellant has not submitted rationalized medical evidence establishing that his left
medial meniscus tear is causally related to the accepted factors of his federal employment, the
Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

13

Id.

14

T.S., Docket No. 20-0343 (issued July 15, 2020); D.H., Docket No. 19-0931 (issued October 2, 2019); R.R.,
Docket No. 18-1093 (issued December 18, 2018); A.C., Docket No. 16-1587 (issued December 27, 2016); Robert
Broome, 55 ECAB 339 (2004).
15

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB
271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified
nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
16

17

See B.B., Docket No. 20-1187 (issued November 18, 2021).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8