United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, SEATTLE
PERFORMANCE CLUSTER, Seattle, WA,
Employer
__________________________________________

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

Docket No. 20-0358
Issued: December 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 3, 2019 appellant, through counsel, filed a timely appeal from an October 29,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to modify OWCP’s
February 19, 2010 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
OWCP accepted that on July 11, 2005 appellant, then a 48-year-old rural carrier, sustained
a right elbow contusion, right elbow/forearm sprain, neck strain, and right shoulder sprain/strain
when a heavy box fell on her right arm and elbow while in the performance of duty. It assigned
the claim OWCP File No. xxxxxx579.4 On November 29, 2007 appellant filed a Form CA-2
alleging injury to her right upper extremity due to her repetitive work duties. OWCP assigned the
claim File No. xxxxxx564 and accepted it for right carpal tunnel syndrome.5 Appellant underwent
OWCP-authorized right shoulder surgeries, including rotator cuff repair, anterior decompression,
and acromioplasty on February 26, 2007, and repeat rotator cuff repair on August 31, 2009. She
stopped work for various periods and received wage-loss compensation for disability from work.
On November 5, 2009 appellant returned to full-time work at the employing establishment as a
permanent modified clerk. The position was consistent with her work restrictions of not lifting
more than five pounds.6
By decision dated February 19, 2010, OWCP found that the actual wages of the modified
clerk position appellant began on November 5, 2009 fairly and reasonably represented her wageearning capacity. It noted, “Your actual earnings meet or exceed the current wages of the job held
when injured. Therefore, according to the provisions of 5 U.S.C. § 8106 and 5 U.S.C. § 8115 your
entitlement to compensation for wage loss ended the date you were reemployed with no loss in
earning capacity, and your compensation payments have been terminated.” OWCP indicated that
the decision did affect coverage of appellant’s ongoing medical benefits.
On January 27, 2011 appellant filed a claim for compensation (Form CA-7) for wage loss
during the period January 19 through 21, 2011. She later filed forms alleging wage loss continuing

3

Docket No. 11-1671 (issued February 23, 2012).

4
On August 3, 2004 filed an occupational disease claim (Form CA-2) alleging injuries to her neck and right upper
extremity due to delivering mail. OWCP assigned the claim OWCP File No. xxxxxx536 and accepted it for cervical
and right shoulder sprains. On September 1, 2004 appellant was released to regular duty.
5
OWCP administratively combined OWCP File Nos. xxxxxx536, xxxxxx564, and xxxxxx579, with the latter file
serving as the master file.
6

The duties of the job were clerical in nature and the physical requirements were simple grasping up to five pounds
for up to eight hours per day, pushing and pulling one to two pounds no higher than shoulder level for up to eight
hours per day, and fine manipulation of less than five pounds for up to eight hours per day. In early 2010, appellant’s
lifting restriction was raised to 10 pounds.

2

after January 21, 2011. The employing establishment had made a determination that no work was
available for appellant as part of the National Reassessment Process (NRP).
In a February 24, 2011 letter, OWCP advised appellant of the deficiencies of her claim for
compensation. It informed her that, in order to be entitled to compensation, her wage-loss claim
must be treated as a claim for modification of the previously established February 19, 2010 LWEC
determination. OWCP advised appellant of the three criteria necessary for modifying such
decisions, i.e., that there was a material change in the nature and extent of the injury-related
condition, the employee had been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous. It afforded her 30 days to provide evidence substantiating
that she had met any of the criteria.
Appellant submitted a Form CA-7 covering the period February 28 to March 11, 2011, a
functional requirement list, and several progress notes from early 2011 which contained illegible
signatures. In a March 17, 2011 letter, appellant’s representative at the time asserted that the
February 19, 2010 LWEC determination was based on “make[-]shift work.” He claimed that the
make-shift nature of the permanent modified clerk position was supported by the fact that appellant
later received several limited-duty job offers. The representative noted that, as part of the NRP,
appellant’s limited-duty job offer assignments had been withdrawn and eliminated.
By decision dated April 18, 2011, OWCP denied appellant’s request for modification of its
February 18, 2010 LWEC determination, noting that the evidence submitted by appellant was not
relevant to the matter.
Appellant appealed the case to the Board and, by decision dated February 23, 2012,7 the
Board affirmed OWCP’s April 18, 2011 decision, finding appellant had not met her burden of
proof to modify OWCP’s February 19, 2010 LWEC determination. It found that there was no
evidence that appellant’s actual earnings in the modified clerk position for more than 60 days did
not fairly and reasonably represent her wage-earning capacity. The Board determined that the
modified clerk position had detailed work duties and a set schedule, and found that appellant’s
later receipt of several limited-duty job offers and the elimination of her job by the NRP were
insufficient to show that the position was make-shift in nature. Therefore, it concluded that
appellant had not shown that the original LWEC determination was erroneous. The Board also
found that the medical evidence of record was insufficient to demonstrate that an employmentrelated condition prevented appellant from performing the modified clerk position or that she had
been retrained or otherwise vocationally rehabilitated such that her work as a modified clerk would
not be representative of her wage-earning capacity.
The case record indicates that OWCP paid appellant schedule award benefits from July 26,
2011 to October 4, 2012 and she collected unemployment benefits until she commenced working
on February 1, 2014 in a full-time, limited-duty job as a modified sales associate. In early
April 2017, the employing establishment advised appellant that her modified sales associate job
was ending and it offered her a different limited-duty job effective April 14, 2017. Appellant
declined the limited-duty job offer, asserting that it was not within her work restrictions.
7

Supra note 3.

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On May 15, 2017 appellant filed a claim for compensation alleging entitlement to wageloss compensation for the period April 15 through 28, 2017.8
In a May 25, 2017 development letter, OWCP advised appellant of the evidence needed to
support modification of OWCP’s February 19, 2010 LWEC determination. It afforded her 30 days
to submit the requested evidence.
Appellant submitted a June 2, 2017 report from Dr. Gary Schuster, a Board-certified
internist, who noted that appellant reported pain in her right shoulder, numbness/tingling and pain
in her right upper extremity and right hand, weakness in her right hand, and pain in her cervical
region. Dr. Schuster provided findings of his physical examination and opined that appellant’s
employment-related conditions/symptoms had worsened after February 19, 2010.
By decision dated July 5, 2017, OWCP denied modification of OWCP’s February 19, 2010
LWEC determination because appellant had not established that modification of that determination
was warranted. By decision of even date, it also denied appellant’s claim for wage-loss
compensation for the period April 15, 2017 and ongoing because she had not shown that
modification of OWCP’s LWEC determination was warranted and had not otherwise shown that
the medical evidence of record established entitlement to such wage-loss compensation.
On July 14, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant subsequently submitted additional medical evidence, including a June 22, 2017
duty status report (Form CA-17) from Dr. Schuster in which he imposed work restrictions
including engaging in intermittent pushing/pulling for no more than two hours per day, simple
grasping for no more than five hours per day, and no engaging in continuous lifting.
During the hearing held on January 16, 2018, counsel argued that OWCP’s original
February 19, 2010 LWEC determination was erroneous. He asserted that the modified clerk
position appellant initially held in 2009 could not serve as the basis for the February 19, 2010
LWEC determination because it was improper to create a permanent modified position across a
work craft classification for any postal employee. Appellant suggested that OWCP’s February 19,
2010 LWEC determination was erroneous because she received several limited-duty job offers
after starting work as a modified clerk and because the modified clerk job was eliminated by the
NRP.
In an April 2, 2018 decision, OWCP’s hearing representative set aside OWCP’s April 15,
2017 decisions and remanded the case to OWCP for further development. The representative
found that OWCP previously had correctly determined that appellant failed to establish that
OWCP’s February 19, 2010 LWEC determination was erroneous. As well, it had not been shown
that appellant had been retrained or rehabilitated such that modification of the wage-earning
capacity decision was warranted. However, the hearing representative found that the medical
evidence from Dr. Schuster necessitated further development regarding whether appellant’s
8
Appellant later filed additional claims for compensation alleging entitlement to wage-loss compensation for the
period April 29 through September 22, 2017.

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employment-related condition rendered her disabled from work. He directed OWCP to refer
appellant for a second opinion examination with an appropriate specialist to address whether there
was objective evidence of a material worsening of her injury-related medical conditions when she
stopped working on April 15, 2017, and if so, whether the effects of the work injury would have
prevented appellant from performing the duties of the modified clerk position that she initially
held in 2009.9
On January 21, 2019 OWCP referred appellant for a second opinion examination to
Dr. Clarence Fossier, a Board-certified orthopedic surgeon. It requested that Dr. Fossier provide
an opinion regarding appellant’s employment-related residuals/disability, including an opinion
regarding whether appellant’s injury-related condition prevented her from performing the
modified clerk position she initially held in 2009. OWCP provided Dr. Fossier with a copy of the
case record, including a recent statement of accepted fact (SOAF) that discussed all of appellant’s
accepted employment injuries.
In a February 18, 2019 report, Dr. Fossier discussed appellant’s factual and medical history
and outlined her current symptoms. He also described appellant’s physical examination findings
and diagnosed status post repair/revision of a rotator cuff tear of the right shoulder, bilateral carpal
tunnel syndrome (right worse than left) with no evidence of thoracic outlet syndrome, and right
lateral epicondylitis. Dr. Fossier indicated that appellant’s medical condition had been stable since
April 14, 2017 and there was no objective evidence of material worsening. He opined that
appellant was not capable of returning to her date-of-injury job because of the amount of lifting
and overhead lifting necessary. However, Dr. Fossier opined that she would have been able to
perform the duties of the modified clerk position she initially held in 2009. He noted that
appellant’s only restriction would be no repetitive lifting over shoulder level using her right arm.
OWCP determined that there was a conflict in the medical opinion between Dr. Schuster,
and Dr. Fossier regarding the extent of appellant’s employment-related residuals/disability. On
March 19, 2019 it referred appellant, pursuant to section 8123(a) of FECA, to Dr. Joel Krakauer,
a Board-certified orthopedic surgeon, for an impartial medical examination and an opinion on the
matter. OWCP requested that Dr. Krakauer provide an opinion regarding appellant’s employmentrelated residuals/disability, including an opinion regarding whether appellant’s injury-related
conditions prevented her from performing the modified clerk position she initially held in 2009.
It provided Dr. Krakauer a copy of the case record, including a recent SOAF that discussed all of
appellant’s accepted employment injuries.
In an April 8, 2019 report, Dr. Krakauer discussed appellant’s factual and medical history
and summarized the medical reports of record. He reported physical examination findings and
diagnosed right elbow contusion, right elbow sprain/strain, cervical strain, right shoulder rotator
cuff tear (status postoperative repair) and right carpal tunnel syndrome, noting that appellant
continued to have residuals of her accepted employment injuries. Dr. Krakauer indicated that there
was no objective basis to support a worsening of the accepted conditions when appellant stopped
work on April 15, 2017. He acknowledged that appellant’s continuing employment-related
residuals included restricted motion of the right shoulder in all planes, clinical evidence of ongoing
9
On April 23, 2018 OWCP received a notice of separation form documenting that appellant retired from the
employing establishment effective April 9, 2018.

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carpal tunnel syndrome on the right, mild stiffness of the right elbow, and persistent tenderness
over the lateral elbow. Dr. Krakauer explained that appellant was restricted with regard to shoulder
elevation and rotation and had restriction with regard to repetitive use of the right hand. He advised
that she was not capable of returning to her normal job as a rural mail carrier, but was still capable
of employment in a modified capacity. Dr. Krakauer further advised that he had reviewed the
modified clerk position, and noted that the specific requirements did not require the use of the
shoulder overhead and that the job activities appeared varied and did not require substantial force.
He agreed with Dr. Fossier that the effects of the work injury would not have prevented appellant
from performing these activities and that the specific activities of the modified clerk position were
acceptable. Dr. Krakauer concluded that appellant had residuals of her accepted employment
injuries and opined that, although appellant was incapable of returning to her normal job as a rural
mail carrier due the position’s lifting requirements, she had been capable of employment as a
modified clerk.
By decision dated April 24, 2019, OWCP denied appellant’s request for modification of its
original February 19, 2010 LWEC determination because the evidence did not substantiate that
any of the three criteria for modifying a formal LWEC were met.10
On May 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
During the hearing held on August 14, 2019, counsel acknowledged that at the time
appellant was placed in the permanent modified clerk position it was a bona ﬁde position and one
that she could have performed. However, he argued that the subsequent determination that
crossing crafts constituted a bargaining agreement violation rendered the prior decision to place
appellant in the permanent modified clerk position inappropriate. Appellant testified that she
retired effective April 9, 2018 and had remained off all work between April 15, 2017 and
April 9, 2018.
After the hearing, appellant submitted a September 7, 2019 statement in which she argued
that the original February 19, 2010 LWEC determination was in error because the modified clerk
position did not consider all of her accepted employment injuries. She submitted copies of the
modified assignments she received prior to the February 19, 2010 LWEC determination and
several offers she received after that determination, four notice of personnel action forms, a
February 15, 2011 employee leave information letter, and a March 13, 2017 sales retention team
letter. Appellant also submitted copies of medical reports that were previously of record and were
considered prior to the time OWCP issued its April 18, 2011 decision which was affirmed by the
Board on February 23, 2012, including reports from 2009 of Dr. Schuster and reports from 2009
of Dr. Dennis J. Kvidera, a Board-certified orthopedic surgeon.
By decision dated October 29, 2019, OWCP’s hearing representative affirmed the April 24,
2019 decision.

10

OWCP further indicated that, as appellant had not established that modification of the February 19, 2010 LWEC
determination was warranted, her request for wage-loss compensation for the period April 15 through September 22,
2017 was denied.

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LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.11 Generally, wages actually earned are the best measure of wage-earning capacity and, in
the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.12 A determination
regarding whether actual earnings fairly and reasonably represent one’s wage-earning capacity
should be made only after an employee has worked in a given position for at least 60 days.13
Compensation payments are based on the wage-earning capacity determination, and it remains
undisturbed until properly modified.14
OWCP’s procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings. Reemployment may not be considered representative of the injured
employee’s wage-earning capacity when an injured employee who has been released to full-time
work is working less than full-time hours, the job is temporary where the employee’s job when
injured was permanent, and the job represents permanent seasonal employment in an area where
year-round employment is available (unless the employee was a career seasonal or temporary
employee when injured).15 In addition, it is well established that a position that is considered an
odd-lot or makeshift position designed for a claimant’s particular needs is not appropriate for a
wage-earning capacity determination.16 The Board has discussed several factors that may support
a finding that the offered position was makeshift in nature. These factors include: (1) the position
did not have an official title or formal position description; (2) there were strict limitations, such
as five-pound lifting and no casing of mail, which indicated appellant would not be able to secure
a position in the community at large with such limited duties; (3) appellant did not perform any
meaningful tasks in the position; and (4) the job appeared to be temporary in nature.17
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

11

5 U.S.C. § 8115(a); see O.S., Docket No. 19-1149 (issued February 21, 2020); Mary Jo Colvert, 45 ECAB 575
(1994); Keith Hanselman, 42 ECAB 680 (1991).
12

See J.A., Docket No. 18-1586 (issued April 9, 2019).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
14

See M.F., Docket No. 18-0323 (issued June 25, 2019).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5c(2) (June 2013). In locations where year-round jobs are scarce, a seasonal position may
represent the wage-earning capacity of an employee who previously held a year-round job. Id.
16

See A.J., Docket No. 10-0619 (issued June 29, 2010).

17

Id. See also V.H., Docket No. 13-2076 (issued March 5, 2014).

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rehabilitated, or the original determination was, in fact, erroneous.18 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.19
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”20 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.21
ANALYSIS
The Board finds that appellant has not met her burden of proof to modify OWCP’s
February 19, 2010 LWEC determination.
As noted, the Board previously affirmed OWCP’s April 18, 2011 decision. Findings made
in prior Board decisions are res judicata absent any further review by OWCP under section 8128
of FECA.22 Accordingly, the current analysis is limited to the relevant evidence received since
OWCP’s April 18, 2011 merit decision, which is the evidence that was not before the Board when
it last reviewed appellant’s claim on February 23, 2012.
The Board finds that, appellant has not submitted sufficient evidence or argument
following the Board’s February 23, 2012 decision to establish that OWCP’s February 23, 2012
LWEC determination was erroneous. Appellant argued that the modified clerk position she
initially held in 2009 could not serve as the basis for the February 19, 2010 LWEC determination
because it was improper to create a permanent modified position across a work craft classification
for any postal employee. She also repeated her earlier argument that her later receipt of several
limited-duty job offers and the elimination of her job by the NRP established that the modified
clerk position was make-shift in nature. However, appellant still has not provided adequate
support for these arguments. For these reasons, the Board finds that she has not established that
OWCP’s February 23, 2012 LWEC determination was erroneous.
With respect to whether modification of OWCP’s February 19, 2010 LWEC
determination is warranted because her injury-related condition had worsened such that she
could no longer work in the modified clerk position, the Board notes that, in 2019, OWCP
18

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,
45 ECAB 211 (1993). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage
Earning Capacity Decisions, Chapter 2.1501.3a (June 2013).
19

O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

20

5 U.S.C. § 8123(a).

21

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
22

See B.R., Docket No. 17-0294 (issued May 11, 2018).

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properly determined that there was a conflict in the medical opinion between Dr. Schuster, an
attending physician, and Dr. Fossier, an OWCP referral physician, regarding the extent of
appellant’s employment-related residuals/disability. It then properly referred appellant,
pursuant to section 8123(a) of FECA, to Dr. Krakauer, a Board-certified orthopedic surgeon,
for an impartial medical examination and an opinion on the matter.23
In an April 8, 2019 report, Dr. Krakauer diagnosed right elbow contusion, right elbow
sprain/strain, cervical strain, right shoulder rotator cuff tear (status postoperative repair) and
right carpal tunnel syndrome, noting that appellant continued to have residuals of her accepted
employment injuries. He acknowledged that appellant’s continuing employment-related
residuals included restricted motion of the right shoulder in all planes, clinical evidence of
ongoing carpal tunnel syndrome on the right, mild stiffness of the right elbow, and persistent
tenderness over the lateral elbow. Dr. Krakauer further advised that he had reviewed the
modified clerk position, and noted that the specific requirements did not require the use of the
shoulder overhead and that the job activities appeared varied and did not require substantial
force. He opined that appellant’s employment-related condition did not prevent her from
performing these activities. Dr. Krakauer concluded that, although appellant had residuals of
her accepted employment injuries and was incapable of returning to her normal job as a rural
mail carrier, she had been capable of working as a modified clerk.
The Board finds that Dr. Krakauer’s well-rationalized April 8, 2019 report shows that
appellant’s injury-related condition did not prevent her from working in the modified clerk
position which served as the basis for OWCP’s February 19, 2010 LWEC determination.
Dr. Krakauer provided a thorough factual and medical history and accurately summarized the
relevant medical evidence.24 Thus, appellant did not establish that modification of that
determination was warranted because her injury-related condition had worsened such that she
could no longer work in the modified clerk position. The Board finds that the special weight
of the medical opinion evidence with respect to this matter rests with the April 8, 2019 opinion
of Dr. Krakauer.25
In addition, the Board also finds that the evidence of record does not show that appellant
has been retrained or otherwise vocationally rehabilitated such that modification of OWCP’s
February 19, 2010 LWEC determination is warranted.26
For these reasons, the Board finds that appellant has not met her burden of proof to modify
OWCP’s February 19, 2010 LWEC determination.

23

See supra note 19.

24

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion). The Board notes that Dr. Krakauer considered all of
appellant’s accepted employment injuries in reaching his conclusions.
25

See supra note 20.

26

See supra note 17.

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Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met her burden of proof to modify OWCP’s
February 19, 2010 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT PATTERSON AIR FORCE BASE,
Greene, OH, Employer
__________________________________________

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

Docket No. 10-911
Issued: December 3, 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 February 8, 2010 appellant filed a timely appeal from a December 9, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than 42 percent permanent impairment to both
lower extremities.
FACTUAL HISTORY
The Office accepted that appellant, then a 41-year-old temporary laborer, sustained injury
on September 16, 1987 when a truck pinned him against a guardrail causing bilateral fractures of
the lower extremities and compartment syndrome.
On March 25, 1993 the Office granted appellant schedule awards for 42 percent
permanent impairment of both the left and right legs. The schedule awards were based upon the

Office medical adviser’s review of the medical record. Pursuant to the third edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment A.M.A.,
Guides (5th ed. 2001).1 the medical adviser calculated that appellant had 10 percent impairment
of both legs due to pain and discomfort and 35 percent impairment due to loss of dorsiflexion,
plantar flexion, inversion and eversion, due to edema from his chronic compartment syndrome.
The medical adviser combined these impairments to total 42 percent impairment of each lower
extremity.
On September 15, 2008 appellant filed a claim for an additional schedule award.
In an October 29, 2008 report, Dr. William N. Grant, a Board-certified internist, noted
that appellant had constant pain in his lower extremities from the femur to the ankles. He noted
that if appellant stood or walked for more than half an hour he had unbearable pain in both lower
extremities. Appellant also had leg pain with prolonged sitting and at night. In addition to pain,
his legs would swell during the late day hours and if he attempted to lift, push or pull objects
greater than five pounds. Based upon these symptoms, Dr. Grant stated that appellant’s constant
claudication, pain and swelling in his legs caused 39 percent lower extremity impairment of both
legs, pursuant to Table 17-38, page 554 of the fifth edition of the A.M.A., Guides.
On December 17, 2008 the Office medical adviser reviewed the new medical report and
concurred with Dr. Grant that, pursuant to Table 17-38, page 554 of the fifth edition of the
A.M.A., Guides, appellant had 39 percent impairment of both lower extremities due to constant
claudication or pain with walking.
By decision dated April 30, 2009, the Office denied appellant’s claim for an additional
schedule award as his permanent impairment to the legs was not more than the 42 percent
impairment for which he had already received compensation.
On May 5, 2009 appellant requested a hearing before the Branch of Hearings and
Review.
In a report dated May 15, 2009, Dr. Grant explained that his impairment rating of 39
percent, reported on October 29, 2008, was in addition to the 42 percent bilateral lower extremity
impairment award appellant had previously received.
By decision dated December 9, 2009, an Office hearing representative affirmed the
April 30, 2009 decision. He found that the medical evidence failed to establish impairment
rating greater than the previous award of 42 percent to each lower extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member

1

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

2

or function.2 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.3 For schedule awards prior to May 1, 2009, the impairment is
evaluated under the fifth edition.4
ANALYSIS
The Board finds that appellant has not established that he has more than 42 percent
permanent impairment to each lower extremity.
Appellant’s 1993 schedule award was based upon his permanent impairment due to pain
and edema. He requested an additional schedule award in 2008 and his permanent impairment
was again evaluated by Dr. Grant based upon pain and edema. Dr. Grant evaluated appellant’s
permanent impairment pursuant to Table 17-38, at page 554. After noting that appellant’s
symptoms prevented further activity after a half hour of walking, standing, sitting, he graded
appellant’s impairment as a Class 2 impairment, which allowed an impairment of up to 39
percent. Dr. Grant reported that appellant had the maximum allowable Class 2 impairment of 39
percent bilaterally of both lower extremities. The Office medical adviser reviewed Dr. Grant’s
report and concurred in his finding. The Board has reviewed the evidence of record and finds
that appellant properly falls into the Class 2 impairment of Table 17-38, which allows a
maximum award of 39 percent permanent impairment of each lower extremity. A Class 3
impairment, which would allow a schedule award up to 69 percent, would be allowable if
appellant had intermittent claudification on walking as few as 25 yards and no more than 100
yards or marked edema only partially controlled by elastic supports or vascular damage
evidenced by healed amputation of two or more digits of one extremity or persisting vascular
disease or superficial ulceration. Dr. Grant’s findings of symptoms after a half hour of activity
do not fit the criteria of Class 3. Moreover, he did not provide any findings that would place
appellant into Class 3 based upon marked edema only partially controlled by elastic supports or
vascular disease with healed amputation or evidence of persistent vascular disease or superficial
ulceration.
The Board finds that the medical evidence establishes appellant’s impairment at 39
percent impairment of each leg. An additional award would be duplicative of the 42 percent
award already granted for the same findings of permanent impairment due to pain and edema.
CONCLUSION
The Board finds that appellant has not established that he has a bilateral permanent
impairment of the lower extremities greater than the 42 percent previously awarded.
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

FECA Bulletin Docket No. 09-03 (March 15, 2009).

3

ORDER
IT IS HEREBY ORDERED THAT the December 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, TOBYHANNA )
ARMY DEPOT, Tobyhanna, PA, Employer
)
__________________________________________ )
G.M., Appellant

Appearances:
Michael J. Parker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1152
Issued: January 20, 2012

Case Submitted on the Record

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

JURISDICTION
On April 13, 2011 appellant, through his attorney, filed a timely appeal of the
November 9, 2010 and March 10, 2011 merit decisions of the Office of Workers’ Compensation
Programs (OWCP) denying his recurrence of disability 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 established that he sustained a recurrence of disability
commencing September 20, 2010 causally related to his accepted employment-related injuries.
On appeal, counsel contends that the medical evidence is sufficient to establish that
appellant is incapable of returning to work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 24, 2009 appellant, then a 43-year-old electronics worker,
sustained a lumbar sprain and aggravation of spondylolisthesis as a result of lifting a locker at
work. Appellant stopped work on June 29, 2009. OWCP paid compensation for total disability
and authorized a L4 laminectomy, L3-4, L4-5 discectomy, tranverse lumbar interbody fusion at
L3-4, L4-5 and posterolateral instrumented fusion at L3, L5 with spondylolisthesis reduction.
Surgery was performed on December 17, 2009 by Dr. Michel Lacroix, an attending Boardcertified neurosurgeon.
On May 7, 2010 Dr. Lacroix released appellant to return to work four hours a day with
restrictions through August 2, 2010. Appellant returned to work four hours a day on
May 24, 2010. On August 4, 2010 he returned to full-duty work, eight hours a day.
On September 29, 2010 appellant filed a recurrence of disability claim (Form CA-2a)
beginning September 20, 2010. Following his return to full-time work, his back condition
worsened due to standing on his feet.
In disability certificates dated September 22 and 27, 2010, Dr. Neal M. Davis, a Boardcertified family practitioner, advised that appellant was unable to work through
October 10, 2010. Appellant could return to work on October 11, 2010.
By letter dated October 1, 2010, OWCP requested that appellant submit factual and
medical evidence, including a rationalized medical opinion from an attending physician
explaining the causal relationship between his inability to work and the accepted employment
injuries.
On October 22, 2010 appellant reiterated that his current disability was causally related to
his accepted employment injuries because his pain worsened after he returned to work eight
hours a day.
In an October 9, 2010 report, Dr. Joseph N. Bruno, Jr., a radiologist, indicated that an
x-ray of the lumbar spine revealed a posterior fusion of L3 through L5. The x-ray was otherwise
normal.
In an October 12, 2010 progress note, Dr. Lacroix advised that appellant’s right low back
and bilateral feet pain had improved by 50 percent status post lumbar fusion. Appellant could
probably return to work soon.
In an October 18, 2010 report, Mark Lacy, a physician’s assistant, stated that appellant
required pain management treatment. A return to work date would be determined in two months
following appellant’s treatment.
By decision dated November 9, 2010, OWCP denied appellant’s recurrence of disability
claim. The medical evidence of record was found insufficient to establish that he became totally
disabled commencing September 20, 2010 due to his accepted employment-related injuries.

2

On December 7, 2010 appellant requested a review of the written record by an OWCP
hearing representative.
In reports dated November 9 and 11, 2010, Dr. Ryan J. Ness, a Board-certified
anesthesiologist, noted appellant’s complaint of right leg and foot and back pain. He obtained a
history of his medical, family, social and occupational background. Dr. Ness reviewed
diagnostic test results and listed his findings on physical and psychological examination. He
advised that appellant had lumbago and feet neuropathy.
In a November 9, 2010 report, Stephen Konkolics, a physician’s assistant, advised that
appellant had lumbago and feet neuropathy. In a treatment note of the same date, he stated that a
lumbar epidural steroid injection was the recommended treatment for appellant’s back condition.
In a November 9, 2010 report, Lisa Owens, a registered nurse, advised that appellant had
lumbosacral neuritis not otherwise specified and lumbar postlaminectomy syndrome.
In a December 7, 2010 report, Dr. Davis obtained a history of the June 24, 2009
employment injuries and appellant’s medical treatment. He noted that following appellant’s
back surgery, appellant experienced pain in both feet. The pain was constant and more
pronounced since appellant began walking again. It was worse while sitting or relieved by
movement. Dr. Davis advised that appellant’s diagnoses remained status post L4 laminectomy,
L3-4, L4-5 discectomy, transverse lumbar interbody fusion at L3-4, L4-5 and posterolateral
instrumented fusion at L3, L5 with spondylolisthesis reduction. He concluded that the diagnosed
conditions were directly related to the accepted injuries and as a result, appellant remained
unable to work.
In a January 4, 2011 report, Dr. Lacroix noted that appellant was anxious to return to
work. Appellant complained about persistent dysesthetic pain in both feet which was resistance
to medication. He also complained about point palpation in the right parasacral area.
Dr. Lacroix listed his findings on physical examination and reviewed diagnostic test results. He
diagnosed status post lumbar fusion with persistent bilateral feet neuropathic pain, and trigger
point and spasm in the paraspinal area. Dr. Lacroix also diagnosed possible sacroliitis. He
concluded that appellant was unable to return to work. In an undated prescription, Dr. Lacroix
ordered physical therapy for functional capacity.
In a decision dated March 10, 2011, OWCP’s hearing representative affirmed the
November 9, 2010 decision. The medical evidence was insufficient to establish that appellant
sustained a recurrence of disability commencing September 20, 2010 due to his June 24, 2009
employment injury.
LEGAL PRECEDENT
A recurrence of disability is the 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, which
caused the illness. The 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

3

her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.2
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
compensation is causally related to the accepted employment injury.3 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.4 This burden
includes the necessity of furnishing evidence from a qualified 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.5 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.6
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.7 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.8 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain and aggravation of
spondylolisthesis while in the performance of duty on June 24, 2009. Appellant claimed a
recurrence of total disability commencing September 20, 2010. The Board finds that appellant
failed to submit sufficient medical evidence to establish that his claimed recurrence was related
to his accepted injuries.

2

20 C.F.R. § 10.5(x).

3

Kenneth R. Love, 50 ECAB 193, 199 (1998).

4

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

5

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

6

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

7

See Ricky S. Storms, supra note 5; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
8

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748, 753 (1986).
9

See Ricky S. Storms, supra note 5; Morris Scanlon, 11 ECAB 384, 385 (1960).

4

Dr. Davis’ September 22 and 27, 2010 disability certificates listed only that appellant was
unable to work through October 10, 2010. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.10 The disability
certificates are not sufficient to establish appellant’s claim as they do not provide a diagnosis or
any explanation as to how his condition and disability were causally related to the June 24, 2009
employment injuries. On December 7, 2010 Dr. Davis noted appellant’s complaint of constant
bilateral feet pain following his back surgery. After reviewing a history of the accepted
employment injuries and appellant’s medical records, he noted appellant’s status as post L4
laminectomy, L3-4, L4-5 discectomy, transverse lumbar interbody fusion at L3-4, L4-5 and
posterolateral instrumented fusion at L3, L5 with spondylolisthesis reduction were directly
related to the accepted injuries and consequently he remained disabled for work. A medical
opinion not fortified with medical rationale is of diminished probative value.11 Dr. Davis did not
adequately address how appellant’s recurrent disability was causally related to the accepted
conditions. The Board finds that his opinion on causal relationship is not sufficient to establish
that appellant was disabled commencing September 20, 2010 due to the accepted lumbar
conditions.
Dr. Lacroix’s progress note found that appellant could probably return to work soon as
his right low back and bilateral feet pain had improved by 50 percent status post lumbar fusion.
His January 4, 2011 report found that appellant was totally disabled for work. Dr. Lacroix
determined that appellant was status post lumbar fusion with persistent bilateral feet neuropathic
pain, and had trigger point and spasm in the paraspinal area and possible sacroiliitis. The Board
has consistently held that pain is a symptom, not a compensable medical diagnosis.12 Further,
Dr. Lacroix’s diagnosis of “possible” sacroliitis is speculative in nature.13 He did not provide
sufficient rationale explaining how appellant’s diagnosed conditions and disability commencing
September 20, 2010 were causally related to the accepted conditions.14 Dr. Lacroix’s
prescription ordered physical therapy for functional capacity. He did not provide any opinion
addressing appellant’s disability for work due to the accepted conditions.15 For these reasons,
the Board finds that Dr. Lacroix’s reports are insufficient to establish appellant’s claim.
Dr. Bruno’s diagnostic test report provided essentially normal findings. He did not
provide a medical opinion on causal relationship between the claimed period of disability and the
accepted conditions.16 The Board finds that Dr. Bruno’s report is insufficient to establish
appellant’s claim.
10

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

11

See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

12

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

13

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).
14

See Roma A. Mortenson-Kindschi, supra note 11.

15

See cases cited supra note 10.

16

Id.

5

The reports from Mr. Lacy and Mr. Konkolics, physician’s assistants and Ms. Owens, a
registered nurse, have no probative medical value in establishing appellant’s claim. Neither a
physician’s assistant nor a registered nurse is a physician as defined under FECA.17
Appellant failed to submit rationalized medical evidence establishing that his disability
commencing September 20, 2010 resulted from the residuals of his accepted lumbar conditions.18
He has not met his burden of proof.19
On appeal, counsel contended that the medical evidence of record established that
appellant was totally disabled for work. For the reasons stated above, the Board finds that
appellant did not submit rationalized medical evidence establishing his recurrence of disability
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.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
disability commencing September 20, 2010 causally related to his accepted employment injuries.

17

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law).
18

Cecelia M. Corley, 56 ECAB 662 (2005).

19

Tammy L. Medley, 55 ECAB 182 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the March 10, 2011 and November 9, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 20, 2012
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
S.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Laguna Niguel, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1261
Issued: February 22, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 4, 2018 appellant filed a timely appeal from a February 23, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated December 14, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 25, 2017 appellant, then a 73-year-old tax examiner, filed a traumatic injury
claim (Form CA-1) alleging that on September 27, 2017 while walking to her desk after renewing
her “smartcard” while in the performance of duty, she experienced left lumbar muscle cramps.
Minutes later, while walking to the exit, she experienced severe left-sided lumbar pain which
caused her to double over suddenly, resulting in left paraspinal muscle tears. Appellant stopped
work on September 27, 2017.
By development letter dated November 2, 2017, OWCP notified appellant of the type of
factual and medical evidence needed to establish her traumatic injury claim, including a detailed
factual statement describing the mechanism of injury, and a narrative opinion from her attending
physician explaining how and why the identified employment factors would cause the claimed left
lumbar injury. It afforded her 30 days to submit the necessary evidence.
In response, appellant submitted her statements dated November 6 and 15, 2017. She
recalled the onset of severe, left-sided lumbar pain while exiting the employing establishment on
September 27, 2017.3 Appellant first sought care at 4:00 a.m. on September 28, 2017 at a hospital
emergency department. She was advised that she had sustained lumbar muscle tears with bleeding
into her left lower extremity. Appellant remained hospitalized through October 7, 2017.
Appellant provided physical therapy prescriptions dated from October 4 to 30, 2017 listing
diagnoses of syncope and collapse, a left hip strain, and left gluteus minimus tendon tear, and
hospital discharge instructions dated October 7, 2017.
In an October 9, 2017 letter, Dr. Patrick S. Thompson, an attending Board-certified family
practitioner, held appellant off work through November 6, 2017. He restricted her to sedentary
work through January 2, 2018.4
In a report dated November 7, 2017, Dr. Thompson diagnosed gluteus minimus and gluteus
medius tears with hematoma. He noted that the “injury occurred at work based on symptoms.”
By decision dated December 14, 2017, OWCP accepted that the claimed September 27,
2017 event occurred at the time, place, and in the manner alleged, but denied the claim, finding
that causal relationship had not been established. It found that the medical evidence of record did

3
Appellant also provided an October 26, 2017 witness statement from S.R., a coworker, who described appellant
bending over with severe lumbar pain while exiting the employing establishment, and that she had been hospitalized
the following day.
4
An October 16, 2017 lumbar magnetic resonance imaging (MRI) scan demonstrated a left gluteus medius tendon
tear at the greater trochanter and a moderate gluteus minimus tendon tear.

2

not contain sufficient medical reasoning to support a pathophysiologic connection between the
established work factors of walking and doubling over and the diagnosed gluteal tendon tears.
On January 11, 2018 appellant requested reconsideration. She submitted a January 3, 2018
statement explaining that her condition made it difficult for her to have obtained the requested
medical evidence within 30 days of OWCP’s November 2, 2017 development letter. Appellant
submitted copies of documents previously of record, including her statements, the hospital
discharge documents, and physical therapy prescriptions.
By decision dated February 23, 2018, OWCP denied reconsideration pursuant to 5 U.S.C.
§ 8128(a), finding that appellant had not submitted new and relevant evidence, or legal argument
sufficient to warrant reopening the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.8 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant disagreed with the December 14, 2017 decision and timely requested
reconsideration on January 11, 2018. The underlying issue on reconsideration is the medical
5
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. The one-year period begins on
the next day after the date of the original contested decision. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016).
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(a),(b).

3

question of causal relationship. Thus, the Board must determine if appellant presented sufficient
evidence or argument regarding causal relationship to warrant a merit review pursuant to 5 U.S.C.
§ 8128(a).10
In her January 11, 2018 request for reconsideration and accompanying statement, appellant
did not show that OWCP erroneously applied or interpreted a specific point of law, nor did she
advance a new and relevant legal argument not previously considered. Consequently, she was not
entitled to a review of the merits based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).
Apart from her January 11, 2018 statement, the documents appellant submitted in support
of her January 11, 2018 request for reconsideration are duplicate copies of evidence considered by
OWCP prior to the issuance of the December 14, 2017 decision. The Board has held that evidence
that is duplicative of evidence previously of record does not warrant further merit review.11
Therefore, she was not entitled to a review of the merits based on the third above-noted
requirement under 20 C.F.R. § 10.606(b)(3).
Accordingly, as appellant’s request for reconsideration did not meet the requirements for
reopening her case, the Board finds that OWCP properly denied merit review.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

10

S.V., Docket No. 17-2012 (issued October 18, 2018).

11

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

12

S.V., supra note 10; R.C., Docket No. 17-0595 (issued September 7, 2017); M.E., 58 ECAB 694 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2019
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 10-384
Issued: October 15, 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 November 25, 2009 appellant filed a timely appeal from the June 9, 2009 merit
decision of the Office of Workers’ Compensation Programs regarding the termination of her
compensation. 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 the Office properly terminated appellant’s compensation effective
October 16, 2007 on the grounds that she had no residuals of her June 26, 2003 work injury.
FACTUAL HISTORY
The Office accepted that on June 26, 2003 appellant, then a 47-year-old flat sorter
operator, sustained thoracic, rhomboid and left shoulder strains and aggravation of cervical and
thoracic arthritis due to lifting mail tubs and placing mail on a machine ledge. She stopped work
on June 27, 2003 and returned to work on June 28, 2003 in a light-duty position. Appellant

stopped work for intermittent periods and recieved wage-loss compensation for disability and
medical benefits.
A magnetic resonance imaging (MRI) scan of appellant’s thoracic spine in August 2003
and her cervical spine in February 2004 showed mild to moderate degenerative disc changes. On
January 4, 2004 appellant underwent left shoulder surgery, including articular debridement
chondroplasty, acromioplasty and distal clavicle excision.1
On August 19, 2005 Dr. Jeffrey Pirofsky, an attending osteopath Board-certified in
physical medical and rehabilitation, stated that on examination appellant had no palpable
tenderness over the cervical spine, bilateral trapezius area or thoracic spine. Appellant had
normal muscle tone with no muscle spasm and no spinal deformities were appreciated. Cervical
and thoracic spine range of motion was diminished in all planes of movement by approximately
15 percent. Dr. Pirofsky diagnosed cervical and thoracic pain with spondylosis. In a
November 4, 2005 report, he advised that he was not sure how appellant’s prior evaluations
related to her June 26, 2003 injury.
In a January 23, 2006 report, Dr. Glenton W. Davis, an attending Board-certified family
practitioner, diagnosed chronic bursitis, hypertension and osteoarthritis and determined that
appellant was unable to work.
The Office referred appellant to Dr. Howard L. Fowler, a Board-certified orthopedic
surgeon, to determine whether she continued to have residuals of her June 26, 2003 work injury.
On November 7, 2006 Dr. Fowler noted that appellant had cervical spondylosis, thoracic
spondylosis, degenerative arthritis of the left shoulder acromioclavicular joint and cervical
radiculopathy. On physical examination, there were diffuse complaints of pain with palpation
involving the cervical and thoracic region. No direct bony tenderness could be elicited and there
was no evidence of any paraspinal muscle spasm. Range of motion of appellant’s cervical,
thoracic and lumbar spine was within normal limits and rhomboid and seratus functions were
intact. Dr. Fowler stated that evaluation of appellant’s left shoulder showed full passive range of
motion, but she did have some slight limitations of active range of motion particularly upon
abduction and external rotation. There was diffuse tenderness to palpation involving the
posterior aspect of her shoulder but negative apprehension. Labral stress testing was negative
and rotator cuff strength was intact. Appellant was neurologically intact in both upper and lower
extremities. Dr. Fowler stated that he found no medical connection between the diagnoses he
provided and appellant’s June 26, 2003 work injury. The diagnosed conditions were not
medically connected to the accepted work injury by direct cause, aggravation, precipitation or
acceleration and no physical limitations existed due to the work-related injury.2 Dr. Fowler
found that appellant had no disabling residuals of the June 26, 2003 work injury and that all
conditions appeared to be preexisting problems.

1

It does not appear from the record that the surgery was authorized by the Office.

2

Dr. Fowler indicated that appellant was restricted from lifting more than 25 pounds but he did not indicate that
this restriction was necessitated by a work-related condition.

2

The Office found that a conflict in the medical opinion arose between Dr. Davis and
Dr. Fowler regarding whether appellant had residuals of her June 26, 2003 work injury. It
referred appellant to Dr. Keith W. Weaver, a Board-certified orthopedic surgeon, for an impartial
medical examination and evaluation regarding the existence of residuals of the June 26, 2003
work injury. Dr. Weaver was asked to determine whether appellant continued to have work
restrictions due to her June 26, 2003 work injury.
On February 6, 2007 Dr. Weaver opined that appellant no longer had a medical condition
or disability as a result of the June 26, 2003 work injury. He provided a detailed description of
her factual and medical history and performed a review of the relevant medical evidence. On
examination, appellant had essentially full range of motion of her neck without radicular
complaints, although she had a touch of decreased rotation to the left versus right. She had full
range of motion of her shoulders with no impingement and she was nontender to light touch of
her neck or back. Dr. Weaver indicated that appellant had no complaints, except minimal
discomfort in her low back with pelvic and axial rotation. He diagnosed arthritis of the left
shoulder that appeared to be preexisting from what was noted at the time of surgery and
significant arthritic changes to the thoracic spine as seen on MRI scan and x-ray testing.
Dr. Weaver noted that the current conditions of arthritis of the left shoulder and thoracic spine
appeared to be preexisting and stated:
“I agree that the claimant’s current conditions are preexisting and unrelated to her
June 26, 2003 injury claim…. [T]he arthritis would not have occurred in such a
short span of time for her shoulder nor the thoracic spine. In regards to the
accepted conditions, the aggravation has resolved, though she has residual chronic
arthritis that is not related to her work injury claim. The arthritis noted for her
shoulder and cervical and thoracic spine is preexisting and will likely follow a
slow and normal progression not related to any work injury.”
In a July 9, 2007 letter, the Office advised appellant that it proposed to terminate her
compensation for wage-loss and medical benefits as she no longer had residuals of her June 26,
2003 work injury. It noted that the weight of medical opinion was represented by the wellrationalized report of Dr. Weaver. The Office provided appellant 30 days from the date of the
letter to submit evidence challenging the proposed termination.3
In an October 18, 2007 decision, the Office terminated appellant’s compensation
effective October 16, 2007 on the grounds that she no longer had residuals of her June 26, 2003
injury.
Appellant requested a telephone hearing with an Office hearing representative. At the
February 11, 2008 hearing, she asserted that she continued to have residuals of her June 26, 2003
injury. On March 12, 2008 the Office received progress reports dated November 2 to
February 28, 2008 as well as psychiatry outpatient notes dated October 24, 2006, April 24 and
August 27, 2007. The reports discussed appellant’s upper back, neck and arm conditions but
they did not address whether these conditions were related to the June 26, 2003 injury.
3

Appellant did not submit any evidence within the allotted time.

3

In a June 6, 2008 decision, the Office hearing representative affirmed the October 18,
2007 decision.
On August 29, 2008 appellant requested reconsideration. Her attorney argued that
Alabama workers’ compensation law dictated that her compensation should not have been
terminated. Appellant submitted a September 17, 2008 report detailing diagnostic test results for
her back.
In a June 9, 2009 decision, the Office denied modification of its decisions terminating
appellant’s compensation effective October 16, 2007.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 It may not terminate compensation without establishing
that the disability ceased or that it was no longer related to the employment.5 After termination
or modification of compensation benefits, clearly warranted on the basis of the evidence, the
burden for reinstating compensation benefits shifts to the claimant. In order to prevail, the
claimant must establish by the weight of the reliable, probative and substantial evidence that she
had an employment-related disability which continued after termination of compensation
benefits.6
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
“If there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination.”7 When there are opposing reports of virtually equal weight and rationale, the
case must be referred to an impartial medical specialist, pursuant to section 8123(a) of the Act, to
resolve the conflict in the medical evidence.8
ANALYSIS
The Office accepted that on June 26, 2003 appellant sustained thoracic, rhomboid and left
shoulder strains and aggravation of cervical and thoracic arthritis due to lifting mail tubs and
placing mail on a machine ledge. It determined that a conflict in medical opinion arose between
Dr. Davis, an attending Board-certified family practitioner, and Dr. Fowler, a Board-certified
orthopedic surgeon acting as an Office referral physician, regarding whether appellant continued
to have residuals of her June 23, 2006 work injury. The Office referred appellant to Dr. Weaver,
a Board-certified orthopedic surgeon for an impartial medical examination and an opinion on the
4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5

Id.

6

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

7

5 U.S.C. § 8123(a).

8

William C. Bush, 40 ECAB 1064, 1975 (1989).

4

matter. It terminated her compensation effective October 16, 2007 based on the opinion of
Dr. Weaver.
The Board finds that the weight of the medical evidence regarding the relevant issue of
this case is represented by the thorough, well-rationalized opinions of Dr. Weaver, the impartial
specialist. The report of Dr. Weaver establishes that appellant had no residuals of her June 26,
2003 work injury after October 16, 2007.
In a February 6, 2007 report, Dr. Weaver found that appellant no longer had a medical
condition or disability as a result of the June 26, 2003 work injury. He noted on examination that
appellant had essentially full range of motion of her neck without radicular complaints, although
she had a touch of decreased rotation to the left versus right. Appellant had full range of motion
of her shoulders with no impingement and she was nontender to light touch of her neck or back.
Dr. Weaver advised that appellant had no complaints, except minimal discomfort in her low back
with pelvic and axial rotation. He diagnosed arthritis of the left shoulder that was a preexisting
condition and chronic from what was noted at the time of surgery. Appellant’s significant
arthritic changes to the shoulder and spine as seen on MRI scan and x-ray testing was
temporarily aggravated by the accepted injury but had resolved. Dr. Weaver noted that
appellant’s arthritis would progress without any relation to her accepted injury.
The Board has carefully reviewed the opinion of Dr. Weaver and notes that it has
reliability, probative value and convincing quality with respect to his conclusions. Dr. Weaver’s
opinion was based on a proper factual and medical history and accurately summarized the
relevant medical evidence.9 He provided medical rationale for his opinion by explaining that the
current conditions of arthritis of the left shoulder and thoracic spine were preexisting and
unrelated to appellant’s June 26, 2003 work injury. The June 26, 2003 injury did not cause the
arthritis and the aggravation related to the June 26, 2003 injury had resolved leaving the
underlying condition as the sole cause of appellant’s need for work restrictions.
After the Office’s October 18, 2007 decision terminating appellant’s compensation
effective October 16, 2007, appellant submitted additional medical evidence which she felt
showed that she was entitled to compensation after October 16, 2007 due to residuals of her
June 26, 2003 work injury. As noted, the Board finds that the opinion of Dr. Weaver supports
the termination of appellant’s compensation effective October 16, 2007, the burden shifts to her
to establish that she is entitled to compensation after that date.
The Board has reviewed the additional evidence submitted by appellant and notes that it
is not of sufficient probative value to establish that she had residuals of her June 26, 2003 work
injury after October 16, 2007. Appellant submitted progress and test result reports dated
November 2, December 10, 27, 2007, February 28 and September 17, 2008.10 The reports
discussed her upper back, neck and arm conditions, but they did not provide any indication that
these problems were related to her June 26, 2003 work injury. Appellant’s attorney argued that
9

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

10

Appellant submitted psychiatry outpatient notes dated October 24, 2006, April 24 and August 27, 2007, but
these reports would have no relevance to the June 23, 2006 work injury which was physical in nature.

5

Alabama workers’ compensation law dictated that her compensation should not have been
terminated; but the Board has held that entitlement to benefits under statutes administered by other
federal agencies or state authorities does not establish entitlement to benefits under the Act.11
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective October 16, 2007 on the grounds that she had no residuals of her June 23,
2006 work injury after that date.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 9, 2009 is affirmed.
Issued: October 15, 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

11

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTION-MIAMI, Miami, FL, Employer
__________________________________________

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

Docket No. 19-1144
Issued: August 3, 2020

Case Submitted on the Record

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

JURISDICTION
On April 22, 2019 appellant filed a timely appeal from an April 5, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days has elapsed
from OWCP’s last merit decision, dated February 15, 2017, to the filing of this appeal, pursuant

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated July 31, 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1144 (issued July 31,
2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is denied by the
Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R. § 501.5(b).

to the Federal Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for a
review of the written record following his reconsideration request
FACTUAL HISTORY
On December 29, 2016 appellant, then a 42-year-old senior officer, filed an occupational
disease claim (Form CA-2) alleging that he was exposed to influenza, causing symptoms of sore
throat, cough, fever, headache, nasal congestion, runny nose, and fatigue, which he attributed to
factors of his federal employment that included working in a visiting room around inmates,
visitors, and employees following an influenza pandemic. He indicated that he first became aware
of his condition and first realized that his condition was caused or aggravated by factors of his
federal employment on December 26, 2016. Appellant did not stop work.
In a January 3, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim and requested factual and medical evidence in support of his claim for exposure. It
afforded him 30 days to submit the requested evidence. OWCP did not receive any additional
evidence.
By decision dated February 15, 2017, OWCP denied appellant’s occupational disease
claim finding that the medical evidence of record failed to establish a diagnosis in connection with
the accepted employment factors. It concluded, therefore, that the requirements had not been met
to establish an injury as defined by FECA.
On May 12, 2017 appellant requested reconsideration and attached a copy of OWCP’s
February 15, 2017 merit decision along with a copy of an American Federation of Government
Employees, Local 3690 memorandum dated May 9, 2017, which stated that “[t]his memorandum
and attachments should be enough to substantiate” his occupational disease claim. He also
provided e-mails from coworkers. In a May 8, 2017 e-mail, L.P., a coworker, indicated that he
recalled appellant being sick towards the end of December 2016. In a May 1, 2017 e-mail, J.L.
also recalled appellant’s sickness as he indicated that he was sick as well due to a flu outbreak at
the employing establishment.
By decision dated May 19, 2017, OWCP denied appellant’s request for reconsideration,
finding that he failed to raise substantive legal questions or include new and relevant evidence.

2

The Board notes that, following the April 5, 2019 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.

2

In an appeal request form dated March 8, 2019, postmarked March 12, 2019, appellant
requested a review of the written record before a representative of OWCP’s Branch of Hearings
and Review.
By decision dated April 5, 2019, OWCP’s Branch of Hearings and Review denied
appellant’s request for a review of the written record, noting that he had previously requested
reconsideration under 5 U.S.C. § 8128 and, therefore, he was not entitled to a review of the written
record on the same issue as a matter of right. It also considered whether to grant a discretionary
hearing, and found that the issue could equally well be addressed by requesting reconsideration
and submitting evidence not previously considered which established that he sustained an injury
in the performance of duty.
LEGAL PRECEDENT
A claimant dissatisfied with an OWCP decision shall be afforded an opportunity for either
an oral hearing or a review of the written record.3 A request for a hearing or review of the written
record must be submitted, in writing, within 30 days of the date of the decision for which a hearing
is sought.4 OWCP regulations further provide that the claimant must have not previously
submitted a reconsideration request (whether or not it was granted) on the same decision.5
Although a claimant who has previously sought reconsideration is not, as a matter of right, entitled
to a hearing or review of the written record, the Branch of Hearings and Review may exercise its
discretion to either grant or deny a hearing following reconsideration.6 Similarly, the Branch of
Hearings and Review may exercise its discretion to conduct a hearing or review of the written
record where a claimant requests a second hearing or review of the written record on the same
issue.7
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
a review of the written record.
OWCP initially denied appellant’s occupational disease claim by decision dated
February 15, 2017. Appellant timely requested reconsideration, which OWCP denied by its
May 19, 2017 nonmerit decision. He then requested a review of the written record with the Branch
of Hearings and Review.

3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

Id.

6

T.M., Docket No. 18-1418 (issued February 7, 2019); M.W., Docket No. 16-1560 (issued May 8, 2017); D.E., 59
ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006).
7

S.H., Docket No. 17-1447 (issued January 11, 2018).

3

As appellant had previously requested reconsideration of OWCP’s February 15, 2017 merit
decision under section 8128 of FECA,8 he was not entitled to a review of the written record as a
matter of right under section 8124(b)(1).9 OWCP properly exercised its discretion and determined
that the issue in the case could be resolved equally well through a request for reconsideration and
the submission of additional evidence.10 Therefore, the Board finds that OWCP did not abuse its
discretion, by its April 5, 2019 decision, in denying appellant’s request for a review of the written
record following his reconsideration request.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
a review of the written record following his reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 3, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

5 U.S.C. § 8128.

9

Id. at § 8124(b)(1); J.C., Docket No. 19-1293 (issued December 16, 2019).

10

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., 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. 12-1716
Issued: January 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 8, 2012 appellant filed a timely appeal from a July 12, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) which denied his occupational disease
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 met his burden of proof to establish that he developed
bilateral sensorineural hearing loss causally related to factors of his federal employment.
FACTUAL HISTORY
On March 30, 2012 appellant, then an 80-year-old engineering technician, filed an
occupational disease claim alleging hearing loss due to noise exposure in the course of his
1

5 U.S.C. § 8101 et seq.

federal employment. He stated that he worked around loud noise. Appellant became aware of
his condition and realized that it resulted from his employment on January 1, 1987. He retired
on May 5, 1987.
On May 1, 2012 OWCP advised appellant that the evidence was insufficient to establish
his claim and requested additional evidence.
In a March 21, 2012 consultation report, Dr. Gerald G. Randolph, a Board-certified
otolaryngologist, related appellant’s complaints of progressive hearing loss for approximately 15
years and of intermittent tinnitus being more severe in the right ear. He noted that from 1951 to
1955 appellant was on active duty with the U.S. Air Force and experienced noise exposure.
From 1955 to 1987, appellant was employed at the employing establishment and worked in areas
with probable noise exposure. He was provided with ear protection. From 1987 to 1999,
appellant was employed in the private sector as an engineer where he also worked in areas with
noise exposure. He was provided with ear protection. Dr. Randolph reported that appellant
retired from civil service in 1987 and had been unemployed since 1999.
Upon examination, Dr. Randolph observed that both external auditory canals were
normal and air condition was greater than bone conduction bilaterally. Audiometric testing
revealed mild high tone sensorineural hearing loss in appellant’s left ear and rapidly sloping high
frequency sensorineural hearing loss in the right ear. An audiogram performed that day revealed
the following decibel losses at 500, 1,000, 2,000 and 3,000 hertz (Hz): 10, 30, 55 and 70 for the
right ear and 10, 20, 20 and 15 for the left ear. Dr. Randolph diagnosed bilateral sensorineural
hearing loss. He stated that the high tone in appellant’s left ear for frequencies above 4,000
cycles per second was no greater than what would be expected on the basis of presbycusis, but
his right ear sensorineural hearing loss was compatible with hearing loss at least aggravated by
past noise exposure. Utilizing the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Randolph opined that appellant
had a ratable hearing loss of zero in the right ear, 24.375 percent in the left ear, and 4.06 percent
binaural hearing loss. No additional rating for tinnitus was indicated. Dr. Randolph
recommended hearing aids for the right ear only.
Appellant submitted audiograms dated from December 15, 1983 to February 16, 2012.
The May 6, 1987 audiogram revealed the following decibel losses at 500, 1,000, 2,000 and 3,000
Hz: 0, 0, 10 and 20 for the right ear and 15, 10, 10 and 10 for the left ear. The most recent
February 16, 2012 audiogram revealed the following decibel losses at 500, 1,000, 2,000 and
3,000 Hz: 10, 30, 65 and 80 for the right ear and 15, 30, 25 and 25 for the left ear.
Appellant provided his employment history. He noted that from 1951 to 1955 he worked
for the U.S. Air Force and was exposed to noise from diesel generators for eight hours per day.
No hearing protection was provided. From 1955 to 1957, appellant worked at the employing
establishment as an electrician helper and was exposed to noise from marine machines, motors,
grinders, choppers, cranes, diesel engines, pumps and sanders for eight hours a day. No hearing
protection was provided. From 1957 to 1987, appellant was also employed as an engineering
technician and exposed to noise from hydraulic pumps, submarine water slugs, surface ships and
firing guns. Hearing protection was provided. Appellant retired from federal service on
May 8, 1987. From 1987 to 1999, he worked as an engineer in the private sector where he

2

performed primarily office work and ship deck checks. Hearing protection was provided.
Appellant submitted various personnel forms and a position description for a mechanical
engineering technician.
In an April 30, 2012 letter, the employing establishment provided a noise assessment
worksheet which noted that, from February 28, 1951 to May 12, 1958, appellant worked as an
electrician and was exposed to continuous noise at the lower frequency range and intermittent
noise at the upper frequency. From May 12, 1958 to May 11, 1987, appellant worked as an
engineering technician and was exposed to continuous noise at the lower frequency. The
employing establishment confirmed that he participated in the hearing conservation program.
In a May 23, 2012 letter, appellant stated that he realized his hearing loss was connected
to his employment on January 1, 1987 because he was exposed to hazardous noise while testing
onboard ships. He noted that he did not previously file a claim, did not have previous hearing
problems and was not involved in any hobbies involving exposure to loud noise.
OWCP prepared a statement of accepted facts (SOAF) describing appellant’s noise
exposure. It noted that from 1957 to 1987 appellant worked for the employing establishment and
was exposed to noise from hydraulic pumps, submarine/shooting water slugs -- surface
ships/firing of guns, marine machinery, motor grinders, chippers, cranes, diesel engines, pumps
and sanders. Appellant was in the U.S. Air Force from 1951 to 1955 and worked in the private
sector from 1987 to 1999, where he was exposed to hazardous noise twice a year, for a week at a
time. OWCP forwarded the SOAF to Dr. Randolph and requested that he provide additional
information regarding the cause of appellant’s hearing loss, based on the background provided in
the SOAF.
In a June 28, 2012 addendum, Dr. Randolph noted that the earliest audiogram in
appellant’s record was dated May 5, 1955 and revealed entirely normal hearing in both ears. He
stated that appellant left civil service employment in 1987 and noted that a May 6, 1987
audiogram revealed essentially normal hearing in both ears. Dr. Randolph reported that, after
appellant left civil service employment, his hearing degenerated significantly resulting in a
ratable hearing loss of 24.375 percent in the right ear and zero percent in the left ear. He
diagnosed bilateral sensorineural hearing loss. Dr. Randolph opined that the workplace
exposure, as described in the material provided, was of sufficient intensity and duration to have
caused and or aggravated hearing loss if inadequate ear protection had been utilized. He noted,
however, that when appellant left his civil service employment there was no evidence of hearing
loss due to noise exposure. Dr. Randolph concluded that appellant’s hearing loss was not due to
noise exposure encountered in his federal civilian employment as he had normal hearing at the
time he left his federal civil service employment.
In a decision dated July 12, 2012, OWCP denied appellant’s hearing loss claim finding
that the medical evidence was insufficient to establish that appellant’s hearing loss was caused
by noise exposure in his federal employment.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative and substantial evidence2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 In an occupational disease claim, appellant’s burden requires submission of 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.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.6 The mere fact that work activities may produce symptoms
revelatory of an underlying condition does not raise an inference of an employment relation.
Such a relationship must be shown by rationalized medical evidence of a causal relation based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.7
ANALYSIS
Appellant alleged that he sustained employment-related hearing loss. OWCP accepted
that he was exposed to various noises when he worked as an engineering technician for the
employing establishment and that he suffered from hearing loss but it denied his claim finding
insufficient medical evidence to establish that his bilateral sensorineural hearing loss was
causally related to his federal employment. The Board finds that appellant failed to establish that
he sustained an employment-related hearing loss.

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
4

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
5

I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009); D.I.,
59 ECAB 158 (2007).
6

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007); Solomon Polen, 51 ECAB
341 (2000).
7

Patricia J. Bolleter, 40 ECAB 373 (1988).

4

Appellant submitted March 21 and June 28, 2012 reports from Dr. Randolph, who
reviewed appellant’s history, including the statement of accepted facts. Dr. Randolph provided
an accurate history of appellant’s employment and levels of noise exposure. He noted that
appellant retired from civil service in 1987. Dr. Randolph stated that a March 21, 2012
audiogram revealed mild high tone sensorineural hearing loss in his left ear and rapidly sloping
high frequency sensorineural hearing loss in the right ear. He diagnosed bilateral sensorineural
hearing loss. Dr. Randolph opined that appellant’s workplace exposure was of sufficient
intensity and duration to have caused and/or aggravated hearing loss if inadequate ear protection
had been utilized. He noted, however, that according to a May 6, 1987 audiogram appellant had
essentially normal hearing upon his retirement from civil service. Dr. Randolph concluded that
the evidence established appellant’s hearing loss arose after his federal employment. He
concluded that appellant’s hearing loss was not due to noise exposure encountered in his federal
civilian employment. The Board finds that Dr. Randolph’s reports do not support that exposure
to noise in his federal employment caused or contributed to appellant’s bilateral sensorineural
hearing loss.
The record reveals that appellant resigned his federal employment on May 5, 1987. A
May 6, 1987 audiogram revealed the following decibel losses at 500, 1,000, 2,000 and 3,000 Hz:
0, 0, 10 and 20 for the right ear and 15, 10, 10 and 10 for the left ear. Thus, the medical evidence
of record establishes that appellant had essentially normal hearing at the time of his retirement
from civil service employment. The evidence supports Dr. Randolph’s conclusion that
appellant’s hearing loss was not causally related to his federal employment.
There is no other medical evidence supporting that appellant sustained hearing loss due to
noise exposure at work. The Board finds that he has not met his burden of proof to establish
through probative medical evidence that he sustained a hearing loss in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has an
employment-related hearing loss.

5

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6