United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 13-1709
Issued: March 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 19, 2013 appellant filed a timely appeal of a January 3, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability on February 17, 2011 due to her September 1, 2005 employment injury.
FACTUAL HISTORY
On July 17, 2006 appellant, then a 46-year-old mail processor, filed an occupational
disease claim alleging that on September 1, 2005 she developed right ankle sprain and Achilles
tendinitis due to factors of her federal employment. On September 25, 2007 OWCP accepted her
1

5 U.S.C. § 8101 et seq.

claim for right Achilles tendinitis and aggravation of right valgus deformities. By decision dated
September 3, 2008, it denied appellant’s claim for a consequential left ankle and foot condition.
Appellant accepted a light-duty work assignment on February 19, 2010.
On August 29, 2011 appellant filed a notice of recurrence of disability alleging that on
February 17, 2011 she sustained a recurrence of disability due to her accepted occupational
injury of September 1, 2005 and her August 2, 2010 traumatic employment injuries, the latter
which OWCP assigned File No. xxxxxx839.2 She stated that she returned to limited-duty work
with a sit-down job and lifting restriction of 10 pounds. Appellant was also restricted in her
pushing, pulling and machine work. She stated that on February 15, 2011 her supervisor
instructed her to label the machine for the casuals. Appellant stated that she attempted to
perform this task for 15 minutes and developed neck pain.
In a letter dated September 6, 2011, OWCP provided appellant with the definition of a
recurrence of disability and allowed her 30 days to submit additional factual and medical
evidence. Appellant stated in an August 29, 2011 statement that her September 1, 2005
employment injury caused her body to shift and develop swelling in her right ankle. She alleged
that she also developed left ankle swelling as well as bilateral small fiber neuropathy. Appellant
attributed her condition to her duties of being a mail processor for 16 years including using
repetitive motion, excessive strain of lifting on hard concrete with no fatigue mat for years as
well as pushing and pulling. She stated that her feet hurt so badly that it was painful to walk, her
legs constantly ached and her neck was painful.
On January 28, 2010 Dr. Laurence J. Kinsella, an internist, stated that appellant reported
bilateral foot numbness and sharp shooting pain from the sole of her foot to the back of her leg.
Dr. Tracy Reed, a podiatrist, examined appellant biweekly from October 8, 2007 through
September 29, 2008 due to bilateral Achilles tendinitis, bilateral plantar fasciitis, bilateral flat
feet and neuropathy.
In a statement dated October 17, 2011, appellant stated that she was not born with
deformed feet and that the lack of fatigue mats on concrete floors at the employing establishment
caused repeated trauma on her ankles, feet and legs.
Dr. S. Thomas Sehy, a podiatrist, completed a note on November 3, 2011 and diagnosed
Achilles tendinitis bilaterally. He stated that appellant never recovered from her original injury
of Achilles tendinitis with probable partial tearing. Dr. Sehy stated that her diagnosis developed
into tendinitis because the tendons never healed properly and because she had not undergone
surgery.
By decision dated September 9, 2011, OWCP denied appellant’s claim for recurrence of
disability. Appellant requested reconsideration. Dr. Kinsella examined her on December 27,
2007 and noted her bilateral foot pain for 13 years. He stated that appellant worked on a very
hard surface and that in 2005 while pushing a 1,000-pound cart she developed acute right ankle
2

OWCP denied appellant’s traumatic injury claim in File No. xxxxxx839, finding that she had not sustained any
employment-related injuries to her neck, back or shoulders on August 2, 2010 as a result of a defective key latch
from a cage falling on her.

2

strain. Dr. Kinsella noted her increased left leg symptoms and diagnosed burning feet syndrome
and psychogenic movement disorder.
By decision dated January 3, 2013, OWCP denied appellant’s claim for recurrence of
disability.
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his or her work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical limitations.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establish that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty requirements.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her recurrence of disability commencing
February 17, 2011 and her September 1, 2005 employment injury.5 This burden includes that
necessity of furnishing 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
employment factors and supports that conclusion with sound medical reasoning.6
ANALYSIS
Appellant alleged that she sustained a recurrence of disability on February 17, 2011 due
to her September 1, 2005 employment injury. OWCP accepted her September 1, 2005
occupational employment injury for right Achilles tendinitis and aggravation of right valgus
deformities. Appellant stated that her supervisor assigned her to label the machine for casuals
and that this work caused her neck to hurt.

3

20 C.F.R. § 10.5(x).

4

Terry R. Hedman, 38 ECAB 222 (1986).

5

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

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Appellant stated that her feet hurt so badly that it was painful to walk, her legs constantly
ached and her neck was painful. In a statement dated October 17, 2011, she stated that she was
not born with deformed feet and that the lack of fatigue mats on concrete floors at the employing
establishment caused repeated trauma on her ankles, feet and legs. Appellant has alleged that her
accepted right foot condition has worsened or that she became totally disabled due to this
condition.
The medical evidence addressing appellant’s accepted right foot condition includes
reports from Dr. Kinsella, Dr. Reed and Dr. Sehy. Dr. Kinsella reported appellant’s complaints
of bilateral foot numbness and sharp shooting pain from the sole of her foot to the back of her leg
in 2010. Dr. Reed diagnosed bilateral Achilles tendinitis, bilateral plantar fasciitis, bilateral flat
feet and neuropathy. Dr. Sehy diagnosed Achilles tendinitis bilaterally in November 2011. He
stated that appellant never recovered from her original injury of Achilles tendinitis with probable
partial tearing. Dr. Sehy stated that her diagnosis developed into tendinitis because the tendons
never healed properly and because she had not undergone surgery.
Appellant’s physicians did not opine that appellant was totally disabled due to her
accepted foot condition. There is no evidence in the record that appellant has experienced a
change in the nature and extent of her injury-related condition or a change in her light-duty
assignment impacting her feet. The Board finds that she has not submitted the necessary medical
evidence to meet her burden of proof in establishing a recurrence of disability due to her
accepted right foot condition on or after February 17, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish a recurrence of disability on
February 17, 2011 due to her September 1, 2005 employment injury.

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ORDER
IT IS HEREBY ORDERED THAT the January 3, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pinson, AL, Employer
__________________________________________

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

Docket No. 08-120
Issued: April 17, 2008

Case Submitted on the Record

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

JURISDICTION
On October 16, 2007 appellant filed a timely appeal from the July 16, 2007 decision of
the Office of Workers’ Compensation Programs which denied her traumatic injury claim.
Pursuant to 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 appellant sustained a traumatic injury on June 2, 2007, as alleged.
FACTUAL HISTORY
On June 7, 2007 appellant, then a 49-year-old rural letter carrier, filed a traumatic injury
claim alleging that she broke bones in her left foot on June 2, 2007. She stated that she
attempted to stop her mail car from rolling backwards down a driveway and was thrown to the
ground by the door of the automobile. Appellant stopped work on June 2, 2007. Gary Smithey,
appellant’s supervisor, controverted the claim. He noted that appellant stopped work on June 2,
2007 but could not verify whether she had been thrown to the ground and that she did not report

an injury on June 2, 2007 while at the site of the injury. Mr. Smithey indicated that appellant
failed to follow safety procedures, as she did not turn off her car, set the parking brake, or make
sure the vehicle was set in park. Appellant first reported the injury to him on June 7, 2002.
On June 14, 2007 the Office requested that appellant submit additional evidence in
support of her claim. It requested that she submit a description of how the injury occurred,
provide a statement from any witness and state the immediate effects of the injury and what she
did afterwards. Appellant was asked to address whether she had any similar condition prior to
injury and to submit a narrative medical report from an attending physician.
Appellant submitted a June 4, 2007 treatment note from Dr. Carter E. Slappey, a Boardcertified orthopedic surgeon. With regard to the history of injury, Dr. Slappey stated,
“[appellant] injured her left foot and ankle. The car got away from her and knocked her down.”
He noted that she saw a Dr. McCleney and was experiencing left dorsal ankle and foot pain.
Appellant’s history included prior surgery on her ankle by Dr. Kelly Snow, for an apparent
fracture of the lateral malleolus and repair of the deltoid with multiple anchors. Dr. Slappey
noted pain and swelling of appellant’s left ankle and foot on examination. His review of x-rays
showed “the old ankle fracture and an acute fracture at the base of her second metatarsal,
questionable third metatarsal, with no significant displacement.” Appellant was treated with a
walking boot with icing and elevation encouraged. On June 13, 2007 Dr. Slappey limited
appellant’s walking and released her to return to work as of June 15, 2007.
In a July 16, 2007 decision, the Office denied appellant’s claim. It found that the
evidence of record was insufficient to establish that the June 2, 2007 incident occurred as alleged
as she did not submit a detailed statement concerning the facts of her claim.
LEGAL PRECEDENT
An employee has the burden of establishing the essential elements of her claim, including
the fact that she is an “employee of the United States” within the meaning of the Federal
Employees’ Compensation Act, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty, as alleged, and that
any disability or specific conditions for which compensation is claimed are causally related to the
employment injury.1 These are the essential elements of every claim for compensation
regardless of whether the claim is based on a traumatic injury or an occupational disease.2
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury while in the performance of duty. However, the
employee’s statements must be consistent with the surrounding facts and circumstances and his
or her subsequent course of action.3 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
1

See James P. Bailey, 53 ECAB 494 (2002).

2

See Christine S. Hebert, 49 ECAB 616 (1998).

3

See Mary Jo Coppolino, 43 ECAB 988 (1992).

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injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established a prima facie claim for compensation. However,
an employee’s statement alleging that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong and persuasive evidence.4
ANALYSIS
The Office denied appellant’s claim for injury, finding that she did not establish the
June 2, 2007 incident at the time, place or in the manner alleged. It noted that she failed to
submit a detailed statement addressing the circumstances surrounding her claim. The Board
finds, however, that the evidence of record is sufficient to establish the June 2, 2007 incident
occurred, as alleged.
Appellant alleged injury to her left foot on June 2, 2007 after she attempted to stop her
motor vehicle from rolling down a driveway while on her postal route. The record reflects that
appellant stopped work that day and was treated on June 4, 2007 by Dr. Slappey, an orthopedic
surgeon. He obtained a history that her car “got away from her and knocked her down.” He
noted that she was referred by a Dr. McCleney, who saw her for left ankle and foot pain. On
examination, Dr. Slappey found that appellant’s left foot and ankle were swollen. While he
noted a history of prior treatment for an old ankle fracture, he advised that x-rays were obtained
which revealed an acute fracture at the base of the second metatarsal with a questionable fracture
of the third metatarsal. This evidence does not establish such inconsistencies such as to cast
doubt on the validity of appellant’s claim. It reflects that appellant sought medical attention
reasonably contemporaneous with the June 2, 2007 incident. Dr. Slappey examined appellant
two days following the incident, observed swelling of the left ankle and foot and diagnosed a
fracture of the second metatarsal of her left foot. While he did not list the date of the June 2,
2007 incident in obtaining her history, there are no inconsistencies in the record with how she
attempted to stop her postal vehicle from rolling down a driveway. The fact that appellant may
have a preexisting ankle fracture does not justify the finding that the June 2, 2007 incident did
not occur, as alleged.5 This is not a situation in which the employee continued to work without
apparent difficulty or delayed in obtaining medical treatment. The medical evidence documents
an acute fracture of the second metatarsal of the left foot.
Appellant’s supervisor controverted the claim, in part, based on the fact that she did not
adequately follow safety procedures by making sure her car had been placed in park with the
parking brake engaged. However, the fact that appellant may have been negligent in the
operation of her motor vehicle, does not preclude her claim for compensation. There is no
provision in the Act allowing the denial of a claim for compensation because the employee did
something imputing culpability or fault on her part.6 He also controverted the claim on the basis
that she did not advise him of her injury until June 7, 2007. However, this is not an instance of
4

Allen C. Hundley, 53 ECAB 551 (2002); Earl David Seal, 49 ECAB 152 (1997).

5

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

6

See Eric J. Koke, 43 ECAB 638 (1992); Robert L. Williams, 1 ECAB 80 (1948). Compensation could be denied
only if it is barred by the affirmative defenses contained in section 8102 of the Act. 5 U.S.C. § 8102.

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late notification of injury. Appellant filed her claim within five days of the June 2, 2007 incident
after obtaining medical treatment for her left foot. In hindsight, it may not have been prudent for
appellant to attempt to stop a moving motor vehicle with her left foot; however, the
“inconsistencies” as found by the Office for rejecting the claim are insufficient for rejecting that
the June 2, 2007 incident occurred as alleged.7 Her claim is not refuted by any strong or
persuasive evidence. The Board finds that appellant has established a prima facie claim for
compensation. The case will be returned to the Office for further development of the medical
evidence.
CONCLUSION
The Board finds that the June 2, 2007 incident occurred while appellant was in the
performance of duty. The case is returned to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2007 Office of Workers’
Compensation Programs’ decision be set aside. The case is remanded to the Office for further
action in conformance with this decision.
Issued: April 17, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

See Bill H. Harris, 41 ECAB 216 (1989).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
MATERIAL COMMAND, Fort Monmouth, NJ,
Employer
__________________________________________

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

Docket No. 13-327
Issued: August 7, 2013

Case Submitted on the Record

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

JURISDICTION
On November 28, 2012 appellant, through her attorney, filed a timely appeal from an
August 7, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
affirming a January 31, 2012 decision terminating her compensation benefits. 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 terminated appellant’s compensation benefits
effective January 31, 2012 on the grounds that she no longer had any residuals or disability
causally related to her accepted neurologic conditions.
On appeal, appellant’s attorney contends that OWCP erred by failing to refer the matter
to a referee physician to resolve the conflict in medical evidence. He further contends that
1

5 U.S.C. §§ 8101-8193.

OWCP erred in failing to develop the matter with regard to whether appellant sustained a
psychological condition as a result of her work injury.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated August 17, 2010, the
Board affirmed in part and reversed in part OWCP’s July 29, 2008 and February 13, 2009
decisions.2 The Board found that OWCP met its burden of proof to terminate benefits with
regard to appellant’s orthopedic conditions but did not meet its burden of proof to terminate her
compensation benefits with regard to her neurological conditions. The file lacked evidence that
the designated impartial medical specialist was properly selected. The Board found an
unresolved conflict in medical opinion as to whether appellant had any neurological condition or
disability causally related to the accepted employment injury. The facts of the case as set forth in
the Board’s prior decision are hereby incorporated by reference.3 Following the Board’s
decision, OWCP resumed compensation payments for wage loss and medical benefits for
disability for the neurological injury.
As relevant to this appeal, in a November 11, 2010 report, Dr. Anca S. Popescu, a Boardcertified neurologist and pain specialist, noted the history of injury and appellant’s course of
treatment and presented findings on examination. He listed an impression of central pain status
post trauma to the face. Dr. Popescu stated that appellant’s facial pain triggered pain in other
parts of the body, if she attempted to drive. A magnetic resonance imaging (MRI) scan of the
brain on June 19, 2008 showed mild age-related atrophy and right maxillary mucosa retention
cyst consistent with subacute sinusitis. An MRI scan of the lumbar spine in December 2005
showed minimal posterior disc bulge at L3-4 with facet joint arthropathy. An MRI scan of the
cervical spine on July 25, 2007 showed very mild C5-6 disc degeneration with small disc
osteophyte complex. Dr. Popescu recommended acupuncture, aqua therapy and treatment with a
pain psychologist.
In a November 12, 2010 attending physician’s report, Dr. Angelo T. Scotti, Boardcertified in internal and emergency medicine, diagnosed post-traumatic stress disorder and
degenerative joint disease of the cervical spine as a result of appellant’s employment injury. He
concluded that she was disabled from employment.
In a March 7, 2011 report, Dr. Eliot M. Wallack, a Board-certified neurologist, noted the
history of injury, appellant’s course of treatment and current complaints of mild dizziness and
blurred vision. Physical, neurological and sensory and motor examination were within normal
limits. Dr. Wallack listed an impression of history of diffuse upper face, shoulder and neck pain
following work trauma; rule out post-traumatic syndrome, rule out depression and rule out soft
tissue dysfunction. He opined that appellant’s symptoms were consistent with soft tissue
dysfunction which was complicated by a significant history of depression. Dr. Wallack noted
2

Docket No. 09-1339 (issued August 17, 2010).

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OWCP accepted the conditions of cervical sprain, concussion without loss of consciousness, cervical root injury
to brachial plexus and lumbar sprain/strain as arising out of the July 23, 2002 employment injury. Appellant
stopped work on July 23, 2002 and subsequently retired.

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that she was disabled based on her symptoms. In a July 19, 2011 visit, he stated that
neurologically, there appeared to be no change in appellant’s status nine years after her trauma.
Appellant continued to complain of pain affecting both upper extremities, proximal neck pain
and bilateral molar pain with movement and activity. Dr. Wallack noted that a previous
rheumatologic examination was negative, but stated that a repeat examination might be helpful.
In a July 29, 2011 report, he opined that appellant was unable to work due to persistent chronic
pain. Dr. Wallack diagnosed a history of diffuse upper extremity pain, neck pain, molar pain of
undetermined etiology; status post cholecystectomy; drug allergies and anxiety.
On August 26, 2011 OWCP referred appellant, together with the medical file, a statement
of accepted facts and a list of questions, to Dr. Edward Weiland, a Board-certified neurologist,
for a second opinion examination. In a September 14, 2011 report, Dr. Weiland reviewed the
history of injury and appellant’s medical care and set forth findings on examination. Appellant’s
current complaints were of numbness, primarily on the right side of the face and in the roof of
her mouth, with periodic numbness on the right scalp. Periodic neck pain was reported, radiating
to both shoulders. Dr. Weiland noted that appellant had not worked since the injury. On
examination he noted intact cognitive function, without aphasia or apraxia or raised intracranial
pressure. Pupils were reactive, facial sensation was within normal limits. No scalp or sinus
tenderness was reported on palpation and no facial swelling was found. Subjective pain
complaints were reported on light palpation over the base of the neck and lower spine, but no
signs of active inflammation were noted at these sites. Neck, shoulder and lumbar range of
motion were all full. Dr. Weiland found peripheral evidence of degenerative osteoarthropathy
and degenerative joint disease in the distal aspects of both arms and legs. He found no
reproducible dermatomal, peripheral nerve or posterior column distribution sensory loss. There
was no evidence of compressive neuropathy found in the hands or feet. Reflexes were present
and symmetrical, and gait and coordination were normal, with no hip tilt or foot drop.
Dr. Weiland diagnosed a closed-head trauma with subjective pain disorder, a resolved cervical
strain, and preexisting and unrelated degenerative joint disease and degenerative
osteoarthropathy. He opined that there was no evidence of any lateralizing neurologic deficits
related to the July 23, 2002 employment incident or any reason why appellant could not be
gainfully employed. Dr. Weiland stated that she was not suffering from any other conditions
resulting directly from the work injury and no conditions were related to the occupational
disease. He stated that no further treatment was warranted.
In a November 16, 2011 report, Dr. Wallack noted that there had been little or no change
in appellant’s status since the last evaluation appropriately four months prior. Appellant
continued with multiple somatic complaints and diffuse pain and experienced numbness
affecting the top of her head. Nonorganic give-way weakness was found in both upper
extremities on examination, with normal gait and station. Dr. Wallack stated that the possibility
that some of appellant’s symptoms could be related to a post-traumatic stress disorder due to her
trauma but it seemed somewhat unlikely. Appellant denied any neurologic deficits. Dr. Wallack
noted that all therapeutic modalities have been ineffective and the likelihood of significant relief
in the future was minimal. In a November 17, 2011 work capacity evaluation form, he opined
that appellant remained totally disabled. Dr. Wallack submitted additional reports diagnosing
post-traumatic stress disorder and degenerative joint disease cervical spine for which she was
totally disabled.

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On December 22, 2011 OWCP issued a notice of proposed termination of compensation
on the basis that Dr. Weiland’s second opinion report found that the neurological residuals of the
July 23, 2002 work injury had resolved. Appellant was afforded 30 days to submit additional
evidence to support her claim.
In a January 9, 2012 report, Dr. Scotti stated that appellant has been his patient since
August 26, 2002, when he saw her after a work injury in which she sustained a concussion.
Thereafter, appellant developed symptoms of “postconcussion syndrome,” better known as posttraumatic stress disorder. Dr. Scotti noted that she received no beneficial response from
antidepressants and other symptomatic therapy and there had been no clinical improvement in
her neurological symptoms. He advised that appellant had multiple symptoms due to her workrelated post-traumatic stress disorder and that she would never be able to work.
By decision dated January 31, 2012, OWCP terminated appellant’s medical and wageloss benefits effective January 31, 2012. The weight of the medical evidence was accorded to
Dr. Weiland, who found that she no longer had any residuals of the July 23, 2002 work injuries.
On February 3, 2012 appellant requested an oral hearing before an OWCP hearing
representative that was held on May 16, 2012.
In a January 25, 2012 report, Samuel A. Bobrow, Ph.D., a clinical psychologist,
diagnosed major depression single episode, severe, causally related to the July 23, 2002
employment injury. He stated that appellant’s predominant symptom from the employment
injury was ongoing pain. Due to her ongoing pain, appellant became seriously depressed, had a
sleep disturbance and was unable to engage in her usual activities.
By decision dated August 7, 2012, an OWCP hearing representative affirmed the
January 31, 2012 decision. The hearing representative noted that the previous medical evidence
of record at the time of the Board’s prior decision, dated from 2006 to 2008, which resulted in a
conflict of medical opinion, was stale.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition which requires further medical treatment.6

4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gerwin C. Hawkins, 52 ECAB 242 (2001).

6

M.D., Docket No. 11-1737 (issued April 3, 2012); Calvin S. Mays, 39 ECAB 993 (1988).

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Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.7 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.8 In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9
ANALYSIS
OWCP accepted appellant’s claim for cervical strain, concussion without loss of
consciousness, cervical root injury to brachial plexus and lumbar sprain and strain. It terminated
her compensation and medical benefits effective August 31, 2008 as it found that the weight of
the medical evidence established that her employment-related medical conditions had resolved.
By decision dated August 17, 2010, the Board affirmed in part and reversed in part the July 29,
2008 and February 13, 2009 decisions. The Board found that OWCP met its burden of proof to
terminate benefits with regard to appellant’s orthopedic conditions but did not meet its burden of
proof to terminate her compensation benefits with regard to her neurological conditions. The
record did not establish that the impartial medical specialist was properly selected. The Board
found that an unresolved conflict in medical opinion remained as to whether appellant had any
neurological condition or disability causally related to the accepted employment injury.10
Following the Board’s decision, OWCP resumed payment of compensation benefits pertaining to
appellant’s accepted neurologic condition.
In August 2011, it noted that the medical evidence of record which had created the
previous conflict of medical opinion was stale. OWCP referred appellant to Dr. Weiland for a
second opinion examination. In a report dated September 14, 2011, Dr. Weiland reviewed her
medical history and provided findings on physical examination. Regarding appellant’s
neurologic evaluation, he found no dermatomal, peripheral nerve or posterior column
distribution sensory loss and no evidence of compressive neuropathy. While Dr. Weiland did
note a history of closed-head trauma and subjective pain disorder, he concluded that there was no
evidence of any ongoing neurologic deficit or disability related to the July 23, 2002 work injury.
He explained that appellant did not have any condition resulting from the work injury.
Based on the opinion of Dr. Weiland, OWCP concluded that the neurological residuals of
the July 23, 2002 injury had resolved and terminated appellant’s compensation and medical
benefits effective January 31, 2012. The Board finds that the termination was improper based on
7

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

8

Delphia Y. Jackson, 55 ECAB 373 (2004).

9

Anna M. Delaney, 53 ECAB 384 (2002).

10

Docket No. 09-1339 (issued August 17, 2010).

5

the outstanding conflict of medical opinion between Dr. Scotti and Dr. Wallack, for appellant,
and Dr. Weiland for OWCP.
Dr. Scotti found that appellant had developed postconcussion syndrome, better known as
post-traumatic stress disorder from her work injury and that she had no improvement in her
neurological symptoms. Dr. Wallack diagnosed possible post-traumatic stress disorder or soft
tissue dysfunction and noted that neurologically there was no change in her status nine years
after her trauma. Dr. Weiland found that appellant had no injury-related residuals. While he
noted a history of closed-head trauma and subjective pain disorder, he concluded that there was
no neurologic deficit or disability related to the July 23, 2002 work injury. Dr. Scotti, who
followed appellant since August 26, 2002, found that she had no improvement in her neurologic
symptoms and Dr. Wallack found no change in her neurological status nine years after her
trauma. The Board finds that the opinions of Dr. Scotti and Dr. Wallack are of equal weight to
the opinion of Dr. Weiland. The physicians reached an opposite conclusion regarding whether
the accepted neurologic injury had ceased without residuals, thereby creating a conflict of
medical opinion. When there is a conflict of opinion between the claimant’s attending physician
and the physician performing an examination for the government, OWCP shall appoint a third
physician to resolve the disagreement.11 As there exists an unresolved conflict in the medical
evidence, OWCP did not meet its burden of proof to terminate appellant’s compensation
benefits.12
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits, effective January 31, 2012, for the accepted neurological condition as there
was an outstanding conflict of medical opinion.

11

Supra note 7.

12

The Board also notes that appellant submitted medical reports regarding pain syndrome diagnosis and a
possible psychological condition and appellant’s counsel argued on appeal that OWCP erred in failing to develop
the matter as to whether appellant suffers a possible psychological condition as a result of her work injury. OWCP
has not issued a final decision regarding these nonaccepted conditions. See 20 C.F.R. § 501.2(c). Where an
employee claims that a condition not accepted by OWCP was due to an employment injury, he or she bears the
burden of proof to establish that the condition is causally related to the employment injury. Jaja K. Asaramo, 55
ECAB 200 (2004). Appellant may submit new evidence or argument with a written request for reconsideration to
OWCP pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

6

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 7, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-2397
Issued: July 14, 2011

Case Submitted on the Record

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

Appellant, a 44-year-old mail handler, sustained an employment-related back injury on
March 24, 2002. The Office of Workers’ Compensation Programs (OWCP) accepted his claim
for lumbosacral sprain and lumbar disc displacement (L5-S1).1 On September 27, 2010
appellant’s counsel filed a timely appeal of a June 8, 2010 OWCP merit decision regarding
entitlement to a schedule award.2 Appellant previously received an award for 11 percent
impairment of the left lower extremity.3 That award, however, was ultimately set aside by the
Board. In a decision dated March 27, 2007, the Board found that the three percent pain-related
1

OWCP also authorized a May 31, 2002 microdiscectomy.

2

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 (2006), and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
3

OWCP initially granted a schedule award on November 25, 2003. The award was based on the then-applicable
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2001). The
overall 11 percent impairment rating included components for decreased hip flexion (5 percent), calf muscle atrophy
(3 percent) and pain (3 percent). The November 25, 2003 schedule award was subsequently set aside by the Branch
of Hearings & Review. By decision dated February 24, 2005, OWCP reaffirmed the previous three percent
impairment attributable to calf muscle atrophy. In a decision dated May 5, 2006, the Branch of Hearings & Review
found that the record did not establish an impairment of the left lower extremity in excess of 11 percent. The Board
would later set aside the May 5, 2006 decision.

component of the award was not supported by the medical evidence of record.4 Accordingly, the
Board remanded the case with instructions for OWCP to obtain clarification from either
appellant’s physician or the district medical adviser (DMA) regarding the appropriateness of a
pain-related award under Chapter 18 of the A.M.A., Guides (5th ed. 2001).5
Almost 2½ years later, OWCP referred the case to the DMA pursuant to the Board’s
March 27, 2007 mandate.6 During the interim period, it adopted the sixth edition of the A.M.A.,
Guides (2008). This latest edition of the A.M.A., Guides is applicable to schedule award
decisions issued on or after May 1, 2009.7 While the sixth edition also includes a separate
chapter for pain-related impairment (Chapter 3), unlike earlier editions of the A.M.A., Guides,
the sixth edition allows for a separate pain-related impairment “only” when the patient presents
with a painful condition and “cannot” be rated according to the diagnosis-based principles
outlined in Chapters 4 to 17, which include the upper and lower extremities.8 The sixth edition
also provides a mechanism for rating spinal nerve extremity impairment.9
The DMA reviewed the case record on September 21, 2009, and expressed his opinion
that an additional three percent pain-related impairment was appropriate under Chapter 18,
A.M.A., Guides (5th ed. 2001). He referenced findings provided by appellant’s treating
physician in February 2003, and explained that the combined 8 percent impairment for hip flexor
weakness and calf muscle (gastrocnemius) atrophy did not adequately compensate for
appellant’s work-related impairment. The DMA, therefore, found that an additional three
(3) percent award for pain was appropriate under the fifth edition of the A.M.A., Guides.
By decision dated January 13, 2010, OWCP found that based on the DMA’s recent report
the three percent previously awarded for pain should be allowed.10 Accordingly, appellant did
not establish permanent impairment of the left lower extremity in excess of the 11 percent he had
previously been paid. The Branch of Hearings & Review affirmed OWCP’s January 13, 2010
decision on June 8, 2010. The hearing representative found that the medical evidence of record
did not support an additional schedule award. This later decision is the subject of the current
appeal.

4

Docket No. 07-128 (issued March 27, 2007).

5

The Board’s March 27, 2007 decision is incorporated herein by reference.

6

According to an August 4, 2009 OWCP internal memorandum, the Board’s 2007 remand apparently “fell
through the cracks.”
7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
8

A.M.A., Guides 39 (2008), Chapter 3, section 3.3(b) (emphasis in the original). See also Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, No. 6 (January 2010).
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
10

OWCP further found that an overpayment did not exist.

2

On appeal, counsel argued that because the fifth edition of the A.M.A., Guides was no
longer in effect by the time OWCP acted on the Board’s March 27, 2007 remand, appellant’s
claim should have instead been reviewed under the sixth edition of the A.M.A., Guides.11 The
Board agrees. The procedure manual provides that all permanent partial impairment calculations
made on or after May 1, 2009 must be based on the sixth edition of the A.M.A., Guides (2008).12
The Board previously vacated appellant’s schedule award under the fifth edition and
remanded the case for further medical development followed by the issuance of a de novo
decision. While a review of the new medical evidence under the fifth edition would have been
appropriate prior to May 1, 2009, OWCP did not act on the Board’s remand order until after the
effective date of the sixth edition. The hearing representative reasoned that the sixth edition was
inapplicable because this was not a recalculation, but a remand where OWCP obtained
clarification supporting the previous award. The hearing representative’s stated rationale
conflicts with the procedure manual.13 The Board had previously vacated the March 27, 2007
schedule award. Whether new evidence supports or refutes an earlier schedule award is not the
determinative factor as to which edition of the A.M.A., Guides applies. Accordingly, OWCP
erred in applying the fifth edition of the A.M.A., Guides (2001).
Because the fifth edition of the A.M.A., Guides was no longer applicable at the time
OWCP issued its January 13 and June 8, 2010 decisions, the findings regarding the extent of
appellant’s left lower extremity impairment must be set aside. The case is remanded to OWCP
for further medical development followed by a de novo decision regarding appellant’s
entitlement to a schedule award in accordance with the A.M.A., Guides (6th ed. 2008).

11

Appellant’s counsel raised the same argument before the Branch of Hearings & Review.
representative disagreed, citing FECA Bulletin No. 09-03 (March 15, 2009).
12

The hearing

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.7b(4) (January 2010).
13

Id.

3

IT IS HEREBY ORDERED THAT the June 8, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: July 14, 2011
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Manchester, NH, Employer
__________________________________________
Appearances:
Bradley M. Lown, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-0729
Issued: October 17, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 20, 2018 appellant, through counsel, filed a timely appeal from a February 1,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 18-0729.
On May 9, 2011 appellant, then a 63-year-old former sewing machine operator, filed an
occupational disease claim (Form CA-2) alleging that her federal employment duties, including
pulling linen carts which weighed up to 600 pounds, caused her to develop left hip pain and a disc
herniation. She explained that she first became aware of her disease or illness on November 8,

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2000 and realized it had been caused or aggravated by her employment on March 9, 2011.
Appellant was separated from employment on June 30, 2006.2
In an August 15, 2011 claim development letter, OWCP advised appellant that the evidence
submitted was insufficient to establish her claim. In a September 13, 2011 statement, appellant
responded and explained her belief that she had timely filed her claim, asserting that the evidence
of record established that her claim had been filed within three years of the date she first became
aware of the relationship between her conditions and employment duties.
By decision dated September 21, 2011, OWCP denied her claim finding that it had not
been filed in a timely manner as required under 5 U.S.C. § 8122. It indicated that the date of injury
was November 8, 2000, but the claim had not been filed until May 9, 2011.
On September 26, 2011 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on January 11, 2012. She testified at the hearing.
By decision dated March 30, 2012, the hearing representative affirmed the September 21,
2011 OWCP decision finding that the evidence of record did not establish the claim was timely
filed under FECA. She concluded that appellant reported awareness of a hip condition and pain
as early as 1999, and had related the hip condition to her work activity of pushing heavy linen
carts, but she had not filed her claim until “August 2011.”
In a letter dated June 11, 2012, received by OWCP on June 14, 2012, counsel noted his
representation of appellant and requested reconsideration on her behalf. In a letter dated June 17,
2013, received on June 23, 2013, he inquired as to the status of the reconsideration request and
enclosed a copy of his June 11, 2012 letter.
On July 8, 2013 OWCP acknowledged receipt of counsel’s June 17, 2013 letter and noted
that it could not communicate with him until it received a written authorization by the employee.
Appellant’s copy of this letter was returned to OWCP as undeliverable on July 15, 2013.3
By decision dated July 31, 2013, OWCP denied appellant’s reconsideration request finding
that it was untimely filed and failed to demonstrate clear evidence of error. The decision explained
that it was based upon appellant’s “June 21, 2013 reconsideration request” which was untimely as
it was filed more than one year following the most recent merit decision. It noted that the only
right on appeal was an appeal to the Board within 180 days.
On August 5, 2013 the July 31, 2013 decision was returned to OWCP as undeliverable.

2

On September 9, 2002 appellant filed a claim for a shoulder condition to which OWCP assigned OWCP File No.
xxxxxx684. That claim is not presently before the Board.
3

The postal notification indicates that the forwarding time had expired/return to sender.

2

In an August 9, 2013 letter, received by OWCP on August 15, 2013, counsel noted his
representation of appellant and provided a signed authorization for representation dated
July 30, 2013.
In letters containing identical language, dated June 23 and 27, 2014, counsel inquired as to
the status of appellant’s reconsideration request, noting it had been two years since reconsideration
had first been requested and noting that a copy was also addressed to his United States Senator “in
hopes that she could assist in resolution of the matter.” He attached a copy of the June 11, 2012
request for reconsideration along with evidence already of record.
On July 11, 2014 OWCP responded to counsel and indicated that the last decision was
rendered on July 31, 2013 and had been sent to appellant’s address of record at the time of issuance.
It informed counsel that he had not received a copy of the decision because it had not received
appellant’s written authorization for his representation. OWCP noted that a decision would be
sent to her new address and that he would also receive a copy. 4
In a letter dated July 22, 2014, counsel indicated that OWCP’s July 11, 2014 letter was in
error. He indicated that the July 31, 2013 decision noted the request for reconsideration was
received on June 21, 2013. Counsel asserted that his request for reconsideration was mailed on
June 11, 2012 and must have been received in 2012. He noted the request for reconsideration had
been timely filed. In a December 30, 2014 letter, counsel referenced letters dated June 11, 2012
and July 22, 2014 and reiterated that OWCP made a mistake with regard to the timeliness of
appellant’s reconsideration request.
In letters dated February 10, 2015 to April 22, 2016, counsel requested a status of
appellant’s claims in OWCP File No. xxxxxx639 and File No. xxxxxx684. Appellant submitted
two senatorial inquiries dated March 23 and June 29, 2016.
In correspondence dated November 3, 2017, OWCP indicated that counsel’s prior letters
were not in the case file at that time the claims examiner reviewed the case. It noted that the last
formal decision was July 31, 2013 and the file had been closed.
On November 13, 2017 and January 11, 2018 counsel indicated that OWCP erred as they
could not close a case which had a pending request for reconsideration. He noted that OWCP’s
decision dated July 31, 2013 was incorrect and he asserted that the request for reconsideration was
timely filed as it had been mailed on June 11, 2012.
By decision dated February 1, 2018, OWCP denied appellant’s request for reconsideration
finding that the evidence of record was insufficient to warrant a merit review of the July 31, 2013
decision.
The Board finds that the case is not in posture for decision.

4

There is no evidence of record that a copy was sent to appellant or counsel.

3

20 C.F.R. § 10.607(a) of the implementing regulations provides that an application for
reconsideration must be received within one year of the date of OWCP ’s last merit decision for
which review is sought. 5 Timeliness is determined by the document receipt date of the request for
reconsideration as indicated by the received date in the integrated Federal Employees ’
Compensation System (iFECS). 6
The Board has duly considered the matter and finds that this case is not in posture for a
decision. Section 8124(a) of the Federal Employees’ Compensation Act provides that OWCP shall
determine and make a finding of fact and make an award for or against payment of compensation. 7
Its regulations also provide that the decision shall contain findings of fact and a statement of
reasons.8 The reasoning behind OWCP’s evaluation should be clear enough for the reader to
understand the precise defect of the claim. 9
The Board finds that OWCP, in its February 1, 2018 decision, did not discharge its
responsibility to set forth findings of fact and a clear statement of reasons to explain the disposition
so that appellant could understand the basis for denial of her claim. The decision does not set forth
which arguments had been made by counsel on reconsideration, as the letter of correspondence
utilized as the reconsideration request was merely a status inquiry. The Board notes that counsel
had asserted that the incorrect standard of review had been utilized as the reconsideration request
was timely filed on or about June 11, 2012 from the last merit decision dated September 21, 2011.
The February 1, 2018 decision does not address this argument. Therefore, the Board finds that the
February 1, 2018 decision does not comply with 20 C.F.R. § 10.126 and must be set aside and the
case remanded.10 On return of the case file OWCP should determine whether the July 31, 2013
was properly served on appellant and address all timely assertions of appellant and counsel.
Accordingly, the case shall be remanded for issuance of a de novo decision that contains
“findings of facts and a statement of reasons” as to all pending issues in the claim.

5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

7

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

8

20 C.F.R. § 10.126. See also M.L., Docket No. 09-0956 (issued April 15, 20101); O.R., 59 ECAB 432 (2008);
Teresa A. Ripley, 56 ECAB 528 (2005).
9

Supra note 6 at Chapter 2.1400.5(c) (February 2013).

10

The Board is unable to determine whether the July 31, 2013 was ever properly served on appellant

4

ORDER
IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 17, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 13-1470
Issued: January 6, 2014

Case Submitted on the Record

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

JURISDICTION
On June 7, 2013 appellant filed a timely appeal from a March 26, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his schedule award claim.
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 ratable hearing loss warranting a schedule
award.
FACTUAL HISTORY
On September 27, 2012 appellant, then a 73-year-old former electrician, filed an
occupational disease claim alleging hearing loss causally related to factors of his federal

1

5 U.S.C. § 8101 et seq.

employment. He was last exposed to the factors alleged to have caused his condition on
October 30, 1998, the date that he retired.
In a report dated August 1, 2012, Dr. Richard W. Seaman, a Board-certified
otolaryngologist, discussed appellant’s history of noise exposure and complaint of loss of
hearing and tinnitus. He found that an audiogram dated July 30, 2012 revealed moderate-tosevere high frequency hearing loss bilaterally. Dr. Seaman diagnosed bilateral sensorineural
hearing loss and tinnitus and stated that the hearing loss was “likely due to a combination of
industrial noise damage, [a] possible contribution from engine from exposure in the Navy, and at
age 73, presbycusis.” He recommended hearing aids.
The employing establishment submitted audiograms from 1987 to 1998 under its noise
conservation program. An audiogram dated October 26, 1998, revealed losses of 5, 5, 25 and 55
decibels on the right at 500, 1,000, 2,000 and 3,000 Hertz (Hz) respectively and losses of 10, 10,
10 and 55 decibels on the left at 500, 1,000, 2,000 and 3,000 Hz, respectively.
On January 14, 2013 OWCP provided Dr. Seaman with a statement of accepted facts
detailing appellant’s occupational noise exposure. It requested that he complete an otologic
evaluation form.
In a report dated January 22, 2013, Dr. Seaman related that a review of a December 10,
1982 audiogram revealed that appellant had hearing loss prior to beginning work with the
employing establishment. He stated:
“I noted [the] audiogram dated October [26], 1998 would have been close to the
time of retirement.2 That audiogram appears accurate and was done by a qualified
audiologist. That audiogram shows some change in hearing from the original
audiogram to that audiogram. That hearing change was all in high frequencies at
4,000 cycles and above. Therefore, in the frequencies normally used for rating
purposes there was no significant change that was not well within test/retest
variation. Hearing loss beyond the time of retirement in 1998 would have been
due to presbycusis. Hearing loss demonstrated in 1998 was not ratable.”
Dr. Seaman concluded that the portion of appellant’s hearing loss due to his federal
civilian employment was “minimal and only in higher frequencies 4,000 cycles and above.”
Hearing aids were recommended as noted at the start of his federal civilian employment.
In a January 28, 2013 form, Dr. Seaman related that audiometric testing conducted on
July 30, 2012 recorded levels of 15, 25, 65 and 75 decibels on the right at 500, 1,000, 2,000 and
3,000 Hz respectively and 20, 75, 65 and 70 decibels on the left at 500, 1,000, 2,000 and 3,000
Hz, respectively. He advised on the form that the hearing loss was due to noise exposure in part
or in whole to noise exposure in appellant’s federal employment.
On February 8, 2013 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss. On February 19, 2013 appellant requested a schedule award.
2

Dr. Seaman indicated that the audiogram was dated October 14, 1998 rather than October 26, 1998; however,
this appears to be a typographical error.

2

On February 13, 2013 an OWCP medical adviser reviewed the July 30, 2012 audiogram
and opined that appellant had a 30 percent binaural hearing loss. On March 20, 2013 he
reviewed the October 26, 1998 audiogram and found that it revealed no ratable hearing loss. The
medical adviser concurred with Dr. Seaman’s finding that appellant did not have a ratable
hearing loss before retirement and that the increase in hearing loss after his employment ceased
did not result from noise exposure.
By decision dated March 26, 2013, OWCP denied appellant’s claim for a schedule award.
It found that his ratable hearing loss developed after retirement and was not causally related to
his work exposure. OWCP authorized hearing aids.
On appeal appellant contends that he believed that he had a ratable hearing loss at the
time of his retirement in 1998.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second the
losses at each frequency are added up and averaged.8 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 250.

8

Id.

9

Id.

3

amount of the binaural hearing loss.10 The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.11
Regarding progression of hearing loss, OWCP’s procedures provide, “Noise-induced
hearing loss does not typically progress after exposure to noise ceases. A claimant with an
audiogram showing less than a 25-decibel loss soon after exposure ceases and a second
audiogram showing a ratable loss may be denied if the DMA [district medical adviser] provides
a well-reasoned opinion.”12
ANALYSIS
OWCP accepted that appellant sustained bilateral sensorineural hearing loss and
authorized hearings aids. The issue is whether he sustained a ratable impairment in accordance
with the A.M.A., Guides warranting a schedule award. In a report dated August 1, 2012,
Dr. Seaman reviewed appellant’s history of noise exposure. He diagnosed tinnitus and bilateral
sensorinural hearing loss. Dr. Seaman found that the hearing loss was due to noise exposure
from a combination of his federal employment, his work in the military and presbycusis. On
January 22, 2013, in response to OWCP’s request for a comprehensive otological evaluation, he
noted that appellant had sustained hearing loss before starting work at the employing
establishment based on his review of audiograms. Dr. Seaman found that an October 26, 1998
audiogram obtained at the time of appellant’s retirement revealed increased hearing loss at
frequencies over 4,000 cycles. He determined that the hearing loss on the October 26, 1998
audiogram was not within the ratable range. He attributed the hearing loss after appellant’s 1998
retirement to presbycusis. Dr. Seaman found that an audiogram performed on July 30, 2012
revealed hearing loss due in part to federal employment but further determined that “it was
minimal and only in higher frequencies 4,000 cycles and above.”
An OWCP medical adviser reviewed Dr. Seaman’s report and the October 26, 1998
audiogram and concurred with his opinion that appellant’s ratable hearing loss had occurred
since his retirement. As discussed, OWCP’s procedures provide that noise-induced hearing loss
does not typically progress after exposure to noise ceases; a claimant with an audiogram showing
less than a 25-decibel loss soon after exposure ceases and a second audiogram showing a ratable
loss may be denied if OWCP’s medical adviser provides a well-reasoned opinion.13
The October 26, 1998 audiogram, obtained just prior to appellant’s retirement, showed
hearing levels of 5, 5, 25 and 55 decibels on the right at 500, 1,000, 2,000 and 3,000 Hz, for an
average of 22.5. The average of 22.5 decibels, reduced by 25 decibels (the first 25 decibels are
discounted as discussed above), to total 0 decibels. With regard to the left ear, the audiogram
showed hearing levels of 10, 10, 10 and 55 decibels on the left at 500, 1,000, 2,000 and 3,000
Hz, for an average of 21.5. The average of 21.5, reduced by 25 decibels, equals 0 decibels.
Based on this test, OWCP’s medical adviser determined that appellant did not sustain a ratable
10

Id.

11

See D.P., Docket No. 13-843 (issued August 6, 2013); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(3) (January 2010).

13

Id.

4

hearing loss due to his federal employment for schedule award purposes. He agreed with
Dr. Seaman’s finding that the ratable hearing loss began only after appellant’s federal
employment ended and thus did not result from noise exposure. The Board notes that
Dr. Seaman explained that the progression of appellant’s hearing loss was not employment
related but instead due to presbycusis. While the subsequent audiogram dated July 30, 2012
revealed ratable hearing loss, the deterioration in hearing postretirement is not typical of hearing
loss due to noise exposure.14
On appeal appellant contends that he had a ratable hearing loss when he retired in 1998.
As discussed, however, the October 26, 1998 audiogram did not reveal a ratable impairment
under the A.M.A., Guides. Appellant may request a schedule award or increased schedule award
based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained a ratable hearing loss
entitling him to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
14

See Kenneth W. Morgan, 28 ECAB 569 (1977).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVFAC
MIDLAND, NAVAL STATION, Norfolk, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1219
Issued: January 21, 2010

Case Submitted on the Record

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

JURISDICTION
On April 6, 2009 appellant filed a timely appeal from a February 3, 2009 merit decision
of the Office of Workers’ Compensation Programs that denied his claim. Pursuant to 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 established that he sustained an employment-related noiseinduced hearing loss.
FACTUAL HISTORY
On August 1, 2008 appellant, then a 52-year-old crane rigger, filed an occupational
disease claim alleging that employment factors caused a loss of hearing. He noted that between
October 4, 2006 and September 25, 2007 his hearing worsened and that an employing
establishment audiologist recommended his removal from working in a hazardous noise
environment. He attached a description of his employment.

By letters dated August 27, 2008, the Office informed appellant of the evidence needed to
support his claim. It asked that the employing establishment provide appellant’s employment
information including a noise exposure record. An August 6, 2007 hearing conservation report
noted that appellant had an audiogram. In a September 27, 2007 annual screening audiological
examination, Joel R. Bealer, an audiologist, noted a diagnosis of mixed conductive and
sensorineural hearing loss. On January 12, 2008 he reiterated this diagnosis. He advised that the
screening revealed a significant decrease in hearing sensitivity in both ears that could pose a
significant safety risk in appellant’s current occupation and recommended that he be removed
from working in a hazardous noise environment and seek private medical intervention.
On August 21, 2008 the employing establishment provided a job description and noise
exposure reading for the crane rigger position. On September 16, 2008 appellant accepted a
light-duty assignment in a low noise area. In a September 16, 2008 statement, Bradley W.
White, Jr., appellant’s supervisor, advised that he was exposed to noise as a crane operator for
seven hours a day, five days a week, and a variety of hearing protection was provided. The
record also contains employing establishment audiogram results dating from September 17, 1982
to September 25, 2007.
On November 7, 2008 appellant was referred to Dr. Lorenz Lassen, a Board-certified
otolaryngologist, for a second opinion evaluation. The examination was scheduled for
November 18, 2008. A November 18, 2008 e-mail from Katrina Davis, with MCN, the contract
medical appointment scheduler, advised the Office that appellant had attended the scheduled
examination, but that following examination Dr. Lassen requested a magnetic resonance imaging
(MRI) scan study for a condition unrelated to appellant’s hearing. The record supports that MRI
scan studies were scheduled for December 29, 2008 and January 16, 2009.
On January 9, 2009 the Office proposed to suspend appellant’s compensation because he
failed to keep scheduled appointments on December 15, 18 and 29, 2008. In a January 20, 2009
e-mail, Ms. Davis advised the Office that appellant was unable to complete an MRI scan study
due to claustrophobia, even in a large open machine.
By report dated January 20, 2009, Dr. Christopher J. Jankosky, an employing
establishment physician Board-certified in occupational medicine, neurology and undersea and
hyperbaric medicine, noted his review of the medical record including serial audiograms. He
advised that the record supported a predominantly conductive hearing loss unrelated to
occupational noise exposure but that he could not exclude the possibility that a sensorineural
component from occupational noise exposure contributed to appellant’s hearing loss, particularly
in the right ear at the higher frequencies. Dr. Jankosky stated that submission of an evaluation
from an otolaryngologist would answer this question, and recommended that appellant be
removed from all high noise work areas.
Appellant filed Form CA-7, claims for compensation for four hours each on
December 29, 2008, January 5, 6 and 16, 2009. He stated that on December 29, 2008 he was
scheduled for an MRI scan but could not use the closed machine, that on January 5, 2009 the
machine was broken, and that, on January 6, 2009, he could not handle the open machine.

2

By decision dated February 3, 2009, the Office denied appellant’s claim. It noted that he
failed to keep scheduled appointments on December 15, 18 and 29, 2008, and that Dr. Jankosky
concluded that appellant’s hearing loss was not a result of noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.3
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.4 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.6
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 278 (2001).

3

Solomon Polen, 51 ECAB 341 (2000).

4

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

5

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

6

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

3

Office procedures set forth requirements for the type of medical evidence used in
evaluating hearing loss. These include that the employee undergo both audiometric and otologic
examination; that the audiometric testing precede the otologic examination; that the audiometric
testing be performed by an appropriately certified audiologist; that the otologic examination be
performed by an otolaryngologist certified or eligible for certification by the American Academy
of Otolaryngology; that the audiometric and otologic examination be performed by different
individuals as a method of evaluating the reliability of the findings; that all audiological
equipment authorized for testing meet the calibration protocol contained in the accreditation
manual of the American Speech and Hearing Association; that the audiometric test results
include both bone conduction and pure tone air conduction thresholds, speech reception
thresholds and monaural discrimination scores; and that the otolaryngologist’s report include:
date and hour of examination, date and hour of employee’s last exposure to loud noise, a
rationalized medical opinion regarding the relation of the hearing loss to the employment-related
noise exposure and a statement of the reliability of the tests.7 A physician conducting an
otologic examination should be instructed to conduct additional tests or retests in those cases
where the initial tests were inadequate or there is reason to believe the claimant is malingering.8
ANALYSIS
The Board finds this case is not in posture for decision. The issue in this case is whether
appellant established that he had a hearing loss caused by noise exposure at work. The Office
proposed to suspend his compensation for failure to attend scheduled MRI scan examinations
and denied his claim on that basis.
The determination of the need for an examination, the type of examination, the choice of
locale and the choice of medical examiners are matters within the province and discretion of the
Office.9 Section 8123(d) of the Act and section 10.323 of Office regulations provide that, if an
employee refuses to submit to or obstructs a directed medical examination, his or her
compensation is suspended until the refusal or obstruction ceases.10 The Board notes that, while
an MRI scan examination may be scheduled to rule out acoustic neuroma in adjudicating hearing
loss claims, the record supports that the requested MRI scan was for a medical condition
unrelated to appellant’s claimed hearing loss, and there is no indication as to the type of MRI
scan scheduled. While appellant’s claim was denied in part for failure to attend scheduled MRI
scan studies on December 15, 18 and 29, 2008, the only notification of appointment found in the
record is for a December 29, 2008 study. The evidence also supports that appellant attended a
number of scheduled MRI scan examinations but was unable to complete the studies due to
claustrophobia. Appellant reported for the scheduled examination with Dr. Lassen and that the
examination was performed. There is, however, no report from Dr. Lassen or evidence that
audiological testing was performed. Contrary to the Office’s finding in the February 3, 2009
7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a) (September 1995); Luis M. Villanueva, 54 ECAB 666 (2003).
8

Luis M. Villanueva, id.

9

Scott R. Walsh, 56 ECAB 353 (2005).

10

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323, see Dana D. Hudson, 57 ECAB 298 (2006).

4

decision, Dr. Jankosky did not advise that appellant’s hearing loss was not a result of noise
exposure. Rather, he opined that, while the record supported a predominantly conductive
hearing loss unrelated to occupational noise exposure, he could not exclude the possibility that a
sensorineural component from occupational noise exposure contributed to his hearing loss,
especially as to the right ear.
Although it is a claimant’s burden to establish his or her claim, the Office is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence, and the
Office shares responsibility to see that justice is done.11 Once the Office undertakes
development of the record, it has the responsibility to do so in a proper manner.12 For the
foregoing reasons, the case will be remanded to the Office.13 Upon remand the Office should
request a rationalized opinion from Dr. Lassen regarding his examination of appellant. After any
further development as it deems necessary, it should issue an appropriate decision on the merits
of appellant’s hearing loss claim.14
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established that he sustained a hearing loss causally related to his federal employment.

11

N.S., 59 ECAB ____ (Docket No. 07-1652, issued March 18, 2008).

12

P.K., 60 ECAB ____ (Docket No. 08-2551, issued June 2, 2009).

13

Id.

14

Supra note 7.

5

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2009 decision of the Office of
Workers’ Compensation Programs be vacated and the case remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: January 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6