United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
D.S., Appellant
)
)
and
)
)
DEPARTMENT OF THE ARMY, IMA
)
HEADQUARTERS, Fort Dix, NJ, Employer
)
___________________________________________ )
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director,

Docket No. 09-1290
Issued: May 12, 2010

Case Submitted on the Record

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

JURISDICTION
On April 20, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated February 4, 2009. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant sustained any permanent impairment of his upper or lower
extremities.
FACTUAL HISTORY
On December 6, 1995 appellant, then a 57-year-old criminal investigator, twisted his
neck and low back at work while subduing a prisoner. The Office accepted his claim for a
lumbar sprain, lumbar radiculitis and permanent aggravation of these conditions. Appellant
sustained a contusion to his buttocks and low back strain on June 12, 1996.1 He filed a claim for

1

File No. xxxxxx751.

a June 18, 2004 recurrence of disability related to the 1996 injury; however, the Office
subsequently determined it was as a new injury.2
On December 9, 2005 the Office referred appellant for a second opinion to Dr. Jatin D.
Gandhi, a Board-certified orthopedic surgeon. In a January 3, 2006 report, Dr. Gandhi reviewed
appellant’s history of injury and medical treatment. He found that appellant had mild tenderness
over the cervical spine with no muscle spasm, mild tenderness in the interscapular region, mild
tenderness in the trapezial region and no tenderness over the brachial plexus region. Regarding
the low back, Dr. Gandhi found moderate tenderness over the lumbosacral region, the pelvis was
level and there were no spasms of the paravertebral muscles. He noted moderate tenderness in
the sacroiliac or sciatic region. On range of motion, flexion was 60 degrees, extension was 10
degrees and lateral flexion was 10 degrees. Dr. Gandhi advised that range of motion was
painful. He noted that straight leg raising was 80 degrees on the left side and associated with
lower back pain, a negative Faber test and normal hip range of movement. The neurological
examination was symmetrical with no gross motor or sensory deficits. Dr. Gandhi diagnosed
cervical sprain with degenerative disc disease and chronic lumbar sprain with radiculopathy. He
opined that the chronic lumbar sprain with radiculopathy was work related and a permanent
aggravation. However, Dr. Ghandi opined that there was no connection between the cervical
sprain and the employment injury.
On August 28, 2007 appellant filed a claim for a schedule award. In a March 14, 2006
report, Dr. David Weiss, an osteopath, reviewed the history of injury and medical treatment. On
range of motion, the cervical spine had forward flexion of 40/45 degrees, backward extension of
40/45 degrees, left rotation of 50/80 degrees, right rotation of 60/80 degrees, left lateral flexion
of 30/45 degrees and right lateral flexion of 30/45 degrees. Dr. Weiss advised that appellant had
pain on all ranges of motion and that the Spurling maneuver on the left produced axial pain but
no radicular component. Appellant had normal gross motor strength of both arms and his
sensory examination revealed a perceived sensory deficit over the C5 dermatome in both arms.
He complained of constant neck pain and stiffness, radicular pain and weakness involving the
arms, constant daily mid and low back pain and radicular symptoms involving the lower
extremities. Dr. Weiss stated that appellant’s activities of daily living were restricted. He
advised that appellant ambulated with a noticeable widened gait. Dr. Weiss advised that
appellant had a perceived sensory deficit over the L4 and L5 dermatomes in both legs.
In rating impairment, Dr. Weiss used the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (5th ed. 2001) (hereinafter A.M.A., Guides). Appellant
had four percent impairment to both the right and left arms based on sensory loss of the C5 nerve
root. Under Table 15-17 the maximum impairment for C5 nerve root impairment affecting an
upper extremity is five percent. Dr. Weiss found, under Table 15-15, that the extent of sensory
deficit was 80 percent or Grade 2. He multiplied the maximum value by the deficit grade to find
four percent impairment to each arm. In rating impairment to both lower extremities at 13
percent, Dr. Weiss utilized Table 15-18 to identify nerve root impairment at L4 and L5 for which
maximum 5 percent is allowed. Under Table 15-15, he allowed a sensory deficit of 80 percent or
Grade 2, to find 8 percent total impairment to each leg due to L4 and L5 sensory loss. Dr. Weiss
2

File No. xxxxxx108. This claim was later double into claim xxxxxx771.

2

then applied Table 17-8 to rate impairment for loss of strength in the right and left hip flexors
which he characterized as Grade 4, allowing five percent impairment. Under the Combined
Values Chart 8 percent impairment for pain combined with 5 percent impairment for loss of
strength totaled 13 percent impairment of both legs.
On November 2, 2007 an Office medical adviser noted that appellant twisted his lower
back and neck on December 6, 1995. While appellant’s primary complaints concerned his low
back, the cervical spine had not been treated in recent years. The medical adviser noted that
Dr. Gandhi had diagnosed cervical sprain with degenerative disc disease and a chronic lumbar
sprain with radiculopathy; however, he found that there was no cervical or lumbar spine sensory
or motor deficit. He advised that there was a conflict in medical opinion between Dr. Ghandi
and Dr. Weiss, who found sensory deficit involving the C5 nerve root together with sensory
impairment of the L4 and L5 nerve roots with motor loss of both hip flexors. The medical
adviser stated that the hip flexors were innervated by L2, and there was no evidence of L2
involvement. He also stated that diagnostic testing did not reveal degenerative changes and there
were no objective findings from the physical examination, only note of appellant’s sensory
complaints. The medical adviser recommend against finding any impairment to either the arms
or legs.
The Office found a conflict between Dr. Ghandi and Dr. Weiss as to the nature and extent
of permanent impairment to appellant’s arms and legs. On March 7, 2008 it referred appellant
with a statement of accepted facts and the medical record to Dr. Zohar Stark, a Board-certified
orthopedic surgeon, for an impartial medical evaluation.
On March 13, 2008 appellant’s representative stated that he had received a letter
scheduling appellant for examination by Dr. Stark. He requested a copy of the letter to the
physician, the statement of accepted facts and a copy of Dr. Stark’s report when received.
In a March 20, 2008 report, Dr. Stark reviewed appellant’s history of injury and medical
treatment. He noted that appellant was able to walk with a normal reciprocating heel/toe gait,
and in calcaneus and equinus gaits. Appellant described pain on ambulation. Cervical spine
examination revealed tenderness on palpation over the spinous processes of C6 and C7 with no
tenderness over the paracervical musculature. On range of motion, Dr. Stark found that it was
preserved through the cervical spine. Appellant had normal forward flexion of 45 degrees,
extension to 45 degree, rotation of 70 degrees on the left and right and lateral bending of 40
degrees on both sides. Although he complained of pain on extremes of motion, there was no
sensory or motor deficit to the arms. Dr. Stark explained that deep tendon reflexes to the upper
extremities were present and equal bilaterally. On examination of the mid and lower back,
appellant had local tenderness on palpation over the spinous process of T6 through 19,
tenderness over the spinous process of the lumbar vertebrae and tenderness over the left
paradorsal muscles and over the paralumbar musculature bilaterally. Dr. Stark advised that
range of motion of the lumbar spine was equal to flexion of 70 degrees, extension of 30 degrees
and lateral flexion of 25 degrees on each side. He explained that the sitting root test was
negative and straight leg raising was equal to 80 degrees bilaterally. Dr. Stark noted that
appellant complained of back pain on extreme straight leg raising. There were no sensory or
motor deficits to the lower extremities and the reflexes of the lower extremities were present and

3

equal bilaterally. There was no documentation to support that appellant sustained a neurological
deficit as a result of the work-related injuries. Dr. Stark noted that the medical records supported
that appellant had discogenic disc disease of his cervical and lumbar spines with lumbar spinal
stenosis. Although Dr. Weiss made neurological findings involving the upper and lower
extremities, Dr. Stark did not find evidence of such deficits on examination of appellant.
Dr. Stark noted that Dr. Gandhi did not report any neurological findings. Based on the absence
of any neurological deficit or muscle weakness in the upper or lower extremities, Dr. Stark found
that appellant had no permanent impairment in relation to the accepted injuries. He advised that
appellant reached maximum medical improvement on January 3, 2006, the date of his
examination by Dr. Gandhi.
On April 22, 2008 the Office medical adviser agreed with the findings by Dr. Stark. He
noted that, while Dr. Weiss found impairments involving appellant’s right arm and both lower
extremities, this determination was in conflict with the opinion of Dr. Ghandi. The Office
medical adviser stated that Dr. Stark did not support the abnormal neurological defects that
formed the basis for the impairment rating of Dr. Weiss. He also noted that the records did not
mention any neurological defects in the extremities.
In a June 4, 2008 decision, the Office denied appellant’s schedule award claim, finding
that the weight of medical opinion did not establish any permanent impairment to his upper or
lower extremities.
On June 16, 2008 appellant’s attorney requested a hearing that was held on
November 19, 2008. Appellant addressed his employment history and noted being on limited
duty for five years before retiring. He contended that the examination by Dr. Stark took a few
minutes and that the physician did not listen to his description of his history. Counsel contended
that a conflict in medical opinion did not exist as Dr. Ghandi did not evaluate appellant with
regard to the schedule award claim. She questioned whether Dr. Stark had been properly
selected as other physicians were bypassed.
In a February 4, 2009 decision, an Office hearing representative affirmed the June 4,
2008 decision. She found that Dr. Stark was properly selected as the impartial specialist and that
his medical opinion was entitled to special weight. She noted that the conflict had arisen
between Dr. Weiss and the Office medical adviser.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

4

uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
Section 8123(a) of the 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.”6 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.7
ANALYSIS
The Board finds that this case is not in posture due to an unresolved conflict in medical
opinion. The Office found a conflict between Dr. Weiss, an attending physician, who found that
appellant had impairment to both arms and legs, and Dr. Gandhi, the second opinion physician.
The Board notes, however, that the record does not establish that appellant was referred to
Dr. Gandhi for an opinion on permanent impairment for schedule award purposes.8 For this
reason, the Board finds that Dr. Stark served as a second opinion examiner and not an impartial
medical specialist.
An Office medical adviser reviewed the impairment rating of Dr. Weiss and noted that he
would not recommend impairment to any of appellant’s extremities. The Office informed
appellant on March 7, 2008 that a conflict had arisen between Dr. Weiss and Dr. Gandhi
regarding the extent of his work-related condition and whether he had permanent impairment.
Appellant was referred to Dr. Stark for an impartial medical examination. As Dr. Gandhi did
not provide an opinion on permanent impairment for schedule award purposes, Dr. Stark may not
be considered as an impartial medical specialist with regard to the extent of ratable impairment
related to appellant’s accepted conditions.9
Although the Office subsequently noted that the conflict had arisen between Dr. Weiss
and the Office medical adviser and Dr. Gandhi, the Board has held that there is no provision
under the Act or Office’s procedures for designating a physician an impartial medical specialist

5

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

6

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan, 45
ECAB 207, 210 (1993).
7

See Roger Dingess, 47 ECAB 123, 126 (1995); Juanita H. Christoph, 40 ECAB 354, 360 (1988); Nathaniel
Milton, 37 ECAB 712, 723-24 (1986).
8

Appellant did not file a claim a schedule award until a year after Dr. Gandhi issued his report. A copy of the
referral letter to Dr. Ghandi is not of record.
9

However, his report may be considered for its own intrinsic value. See Cleopatra McDougal-Saddler, 47 ECAB
480 (1996). Inasmuch as Dr. Stark is not considered to be an impartial specialist, it is not necessary to address
appellant’s arguments regarding the propriety of the process employed by the Office to select Dr. Stark as an
impartial specialist.

5

on an after-the-fact basis.10 Therefore, an unresolved conflict exists between the findings of
Dr. Weiss and those of Dr. Stark. The case will be remanded to the Office to refer appellant to
an impartial medical specialist for examination and opinion on the nature and extent of any
impairment related to the accepted conditions. After such further development as it deems
necessary, the Office should issue an appropriate decision on appellant’s claim for a schedule
award.
CONCLUSION
The Board finds that the case is not in posture for a decision due to an unresolved conflict
in medical opinion.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for proceedings consistent
with this decision of the Board.
Issued: May 12, 2010
Washington, DC

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

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

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

10

Joanne S. Rozelle, 40 ECAB 931, 939 (1989).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartly, DE, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1028
Issued: July 6, 2021

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 April 14, 2020 appellant, through counsel, filed a timely appeal from a November 5,
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.3
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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 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.

ISSUE
The issue is whether appellant has met his burden of proof to modify OWCP’s July 27,
2016 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On February 4, 2009 appellant, then a 42-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that factors of his federal employment, including lifting up to
70 pounds of mail, sorting and delivering the mail over nine hours a day, caused or aggravated a
C6-7 disc bulge. He stopped work on October 24, 2007.4 OWCP accepted the claim for herniated
disc C6-7.
Appellant returned to full-time, light-duty work on February 13, 2010. OWCP initially
paid her compensation on its supplemental rolls. As of April 20, 2013, the employing
establishment could not accommodate appellant’s March 19, 2013 work restrictions which were
provided by Dr. Robert Smith, a Board-certified orthopedic surgeon and second opinion physician.
OWCP paid appellant compensation on the periodic rolls effective June 30, 2013.
On July 2, 2014 appellant accepted a May 23, 2014 part-time modified limited-duty
assignment as a modified window clerk, which involved , distribution of mail (not to exceed 10
pounds), and additional duties assigned daily not to exceed limits. The duties required
standing/sitting/walking up to 4 hours, lifting/pulling/pushing no more than 10 pounds up to 4
hours. The assignment also indicated that there was no stooping or climbing, no lifting above
shoulders, and no bending. Appellant’s work hours were 1:00 p.m. through 5:00 p.m. Monday,
Tuesday, Thursday, Friday, and Saturday with scheduled days off on Sunday and Wednesday.
On July 21, 2014 the employing establishment notified appellant of a schedule and job
duties change, effective July 28, 2014. It noted that he would keep the same schedule, but he
would perform passport appointments/customer pickups from 1:00 p.m. through 2:30 p.m. and
would perform duties as assigned, and any additional as needed from 2:30 p.m. through 5:00 p.m.
Appellant returned to work on July 28, 2014.
By decision dated July 27, 2016, OWCP found that the modified window clerk position
appellant held since July 2, 2014 fairly and reasonably represented his wage-earning capacity. It
further found that, as his actual earnings were less than the current wages of the job he held when
injured, he was entitled to FECA wage-loss compensation for a 50 percent LWEC.
On April 5, 2017 OWCP received a claim for compensation (Form CA-7) for total
disability due to the withdrawal of the light-duty position effective March 27, 2017. Along with
the Form CA-7, it received a “priority for assignment sheet” dated April 3, 2017 and physical
therapy reports dated April 18 and 26, 2017.

4

Under OWCP File No. xxxxxx662, OWCP accepted a cervical sprain and a herniated cervical disc at C5-6 due to
an August 9, 2000 traumatic injury. Appellant underwent an anterior cervical decompression at C5-6 with interbody
fusion on September 17, 2001. He returned to modified duty and then to full-time regular duties as a rural carrier on
August 7, 2002. Appellant’s claims have not been administratively combined.

2

In a May 3, 2017 development letter, OWCP advised appellant that his claim for wage-loss
compensation for the period March 27, 2017 onward was considered a request for modification of
his formal LWEC decision. It advised him of the deficiencies in his claim and informed him of
the three criteria to establish modification of an LWEC. OWCP afforded appellant 30 days to
submit the necessary information.
Appellant continued to submit Form CA-7 claims for compensation and physical therapy
notes. He also submitted a June 1, 2017 recurrence claim (Form CA-2a) alleging a recurrence of
disability as no work was available commencing March 24, 2017.
In a letter to the employing establishment dated July 3, 2017, OWCP noted that the
evidence of file indicated that appellant’s limited-duty assignment may have been withdrawn in
whole or in part effective March 23, 2017. It requested that the employing establishment provide
all medical evidence in its possession, all official documentation related to the position appellant
had been working, and a written statement addressing whether the position on which the LWEC
rating was based was a bona fide position at the time of the LWEC rating. The employing
establishment was afforded 30 days to provide the requested information.
In a July 12, 2017 letter, M.B., a Heath and Resource Management Specialist, indicated
that appellant was working a limited-duty job for four hours a day, which was the basis of his
LWEC determination. However, on March 24, 2017, he noted that there was no work available
for appellant in his assigned office with his limitations. M.B. indicated that there was no change
in appellant’s medical condition or his ability to work four hours a day; rather, other clerks were
entitled to that work.
By decision dated August 24, 2017, OWCP accepted appellant’s claim for a recurrence of
disability effective March 24, 2017 as no was available within his restrictions as of that date.
OWCP continued to receive Form CA-7 claims for compensation. It also received a copy
of appellant’s May 23, 2014 offer of modified assignment and a September 2, 2017 PS Form 50,
which noted his position title as a rural carrier.
By decision dated January 11, 2018, OWCP denied modification of its July 27, 2016
LWEC determination as no basis for modifying the LWEC determination had been established. It
noted that, when a formal LWEC is in place and a light-duty assignment is subsequently
withdrawn, the LWEC determination remained in effect unless a basis for modifying the LWEC
determination was established.
Appellant requested reconsideration on August 7, 2018. In a July 27, 2018 statement and
on a copy of the July 27, 2016 LWEC decision, he noted that he was “never a window clerk nor
was he trained.” Appellant also indicated that his form PS 50’s indicated that he was a rural carrier.
He noted that that he was taken off work on December 12, 2014 due to increased pain in his neck
which indicated a change in his condition. Appellant also indicated that he could no longer do any
job which requires him to stand for any period of time.
In support of his request, appellant submitted multiple PS Forms 50 dated July 28, 2014
through August 3, 2018 which noted his position title of rural carrier, physical therapy reports; a
March 7, 2014 capacity evaluation from Dr. Lyndon B. Cagampan, a physical medicine and

3

rehabilitation specialist, who related that appellant could work for four hours a day, with lifting
restricted to 10 pounds; and an April 2, 2015 report from Dr. Cagampan, which indicated that
appellant was excused from work, if a sitting job was not available on a part-time basis with
restrictions of lifting no more than 10 pounds and no frequent twisting and turning of his head.
In a May 31, 2018 work capacity evaluation (Form OWCP-5c), Dr. Nazim Ameer, a
Board-certified anesthesiologist, indicated that appellant had right upper extremity weakness and
worsening of radicular pain with activity. He opined that appellant could not perform his usual
job, but could work for four hours a day with restrictions secondary to pinched nerves of the neck
and decreased muscle strength of the right upper extremity.
By decision dated November 23, 2018, OWCP denied modification of its January 11, 2018
decision, finding that appellant’s arguments were insufficient to modify or terminate the LWEC
decision. It noted that, while his PS-50 forms correctly noted his permanent and ongoing title of
rural carrier, it did not affect nor invalidate the LWEC decision, which noted his modified
assignment as a modified window clerk. OWCP also found that appellant worked in the modified
position until March 7, 2017,5 not because his physical condition had worsened, but because the
position itself was no longer available due to staffing reasons.
On July 18, 2019 OWCP expanded the acceptance of the claim to include the additional
condition of cervical radiculopathy.
On August 9, 2019 appellant, through counsel, requested reconsideration of the July 27,
2016 LWEC determination.
In progress notes dated May 30, June 27, and July 25, 2019, Dr. Ameer noted that appellant
had back pain and normal gait. He provided assessments of lumbar radiculopathy, sacroiliitis, and
lumbar facet syndrome. Dr. Ameer indicated that appellant’s condition was permanent.
In an August 16, 2019 Form OWCP-5c, Dr. Ameer indicated that appellant had right upper
extremity weakness and worsening of radicular pain with activity. He opined that appellant could
not perform his usual job, but could work four hours a day with restrictions secondary to pinched
nerves of the neck and decreased muscle strength of the right upper extremity. Appellant’s
previous restrictions of pushing/pulling/lifting no more than 10 pounds for 4 hours and no lifting
above the shoulder remained the same, but walking was further restricted to no more than two
hours.
By decision dated November 5, 2019, OWCP denied modification of its November 23,
2018 decision. It noted that OWCP’s August 24, 2017 recurrence decision was issued
prematurely.
LEGAL PRECEDENT
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
5
This date appears to be a typographical error as the employing establishment withdrew appellant’s modified
position effective March 24, 2017.

4

capacity. 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.6 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.7 Wage-earning
capacity may not be based on an odd-lot or make-shift position designed for an employee’s
particular needs, or a temporary position when the position held at the time of injury was
permanent.8
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous. 9 OWCP’s procedures provide
that, “[i]f a formal [LWEC] decision has been issued, the rating should be left in place unless the
claimant requests resumption of compensation for total wage loss. In this instance, the CE [claims
examiner] will need to evaluate the request according to the customary criteria for modifying a
formal [LWEC].”10 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.11
When a formal LWEC determination is in place and light duty is withdrawn, the proper
standard of review is not whether appellant sustained a recurrence of disability, but whether OWCP
should modify its decision according to the established criteria for modifying a formal LWEC
determination.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has established that OWCP’s July 27, 2016 loss of LWEC
determination was issued in error.
The evidence of record reflects that the employing establishment offered appellant a
modified window clerk position on May 23, 2014 working 20 hours per week, which was to be
6

M.S., Docket No. 19-0692 (issued November 18, 2019); E.W., Docket No. 14-0584 (issued July 29,
2014); Dennis E. Maddy, 47 ECAB 259, 262 (1995).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
8

See M.S., supra note 6; James D. Champlain, 44 ECAB 438, 440-41 (1993); id. at Chapter 2.815.5c (June 2013).

9

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45
ECAB 211 (1993).
10

Supra note 7 at Chapter 2.814.9(a) (June 2013). See M.F., Docket No. 18-0323 (issued June 25, 2019); Harley
Sims, Jr., 56 ECAB 320 (2005).
11

See J.A., Docket No. 18-1586 (issued April 9, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

12
See M.S., supra note 6; C.P., Docket No. 11-1459 (issued February 7, 2012); Tamra McCauley, 51 ECAB 375,
377 (2000).

5

available as of May 30, 2014. Appellant accepted this position on July 2, 2014. However, on
July 21, 2014 the employing establishment issued a schedule and job duties change, which
indicated that he would perform passports appointments and customer pickup from 1:00 p.m. until
2:30 p.m., and then perform other duties as assigned including second notice, clearing accountables
and additional as needed. In the LWEC determination dated July 27, 2016, OWCP found that the
position appellant accepted on July 2, 2014 fairly and reasonably represented his wage-earning
capacity.
The Board has previously explained that an offered limited-duty position will not be
considered to be temporary if it is to remain in effect indefinitely unless the employee’s restrictions
change or he returns to full duty; and the employee performed the duties of the modified job offer
for at least 60 days prior to the wage-earning capacity determination.13
The Board finds that the position appellant accepted on July 2, 2014 was a temporary
position. Appellant did not perform the duties of the modified-limited duty position he accepted
on July 2, 2014 for more than 60 days before the job duties were changed. The job duties change
reflects that the position offered on May 23, 2014 and which he accepted on July 2, 2014, was not
in fact a permanent position.
The Board finds that, for these reasons, appellant has met his burden of proof to modify
OWCP’s July 27, 2016 LWEC determination as it was erroneously issued.
Accordingly, the Board finds that appellant has met his burden of proof to modify the
July 27, 2016 LWEC determination.

13

K.B., Docket No. 20-0358 (issued December 10, 2020).

6

CONCLUSION
The Board finds that appellant has met his burden of proof to modify OWCP’s July 27,
2016 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 6, 2021
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Miami, FL, Employer
__________________________________________

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

Docket No. 14-1172
Issued: October 14, 2014

Case Submitted on the Record

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

JURISDICTION
On April 24, 2014 appellant filed a timely appeal of a January 24, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition on December 8, 2013 in the performance of duty.
FACTUAL HISTORY
On December 12, 2013 appellant, then a 32-year-old air traffic control specialist, filed a
traumatic injury claim alleging that on December 8, 2013 an aircraft with which she worked
1

5 U.S.C. § 8101 et seq.

crashed shortly after she transferred control to another airport tower. She was notified of the loss
of life of all persons onboard. Appellant stated that she experienced restlessness, insomnia,
stress, night sweats and loss of appetite as well as disturbing images of probable events in the
cockpit prior to and during the crash.
In a letter dated December 17, 2013, OWCP requested additional factual and medical
evidence from appellant regarding her traumatic injury claim. It noted that she had not submitted
any medical evidence of a diagnosed condition. OWCP also requested that she complete a
factual questionnaire. It allowed 30 days for a response.
Dr. William M. Beecham, Ph.D. a clinical psychologist, completed a report on
December 20, 2013 noting that appellant was an air traffic controller. On Sunday, December 8,
2013 appellant cleared a departing aircraft out of Fort Pierce Airport, climbed the aircraft to the
requested altitude and turned the plane on course. She handed the aircraft off to Orlando
Approach Control. The airplane then crashed killing all three persons on board. Appellant’s
supervisor informed appellant of the crash during her shift on December 8, 2013 and she
continued working until the end of her shift. Appellant reported to work on Monday and again
on Tuesday, when she had an emergency, but that plane landed safely. On Wednesday, she was
instructed to go to the tape room to complete an official statement regarding the aircraft that
crashed. At that point, appellant learned that the pilot was transporting his daughter back to
college and his other daughter was along for the ride. The pilot was unable to see the runway for
a landing and the tower controller instructed him to go around and try again. The aircraft came
too low to the ground and crashed into a lake near the runway. All three persons aboard died.
Appellant reported her obsessive thoughts about the crash, her loss of appetite and insomnia.
Dr. Beecham diagnosed acute stress disorder as the result of the traumatic event involving the
death of the pilot and his daughters.
The employing establishment provided appellant with a Form CA-16 authorization for
examination to receive treatment as medically necessary. Dr. Beecham completed the form on
December 20, 2013 indicating with a checkmark “yes” that he believed that her condition of
acute anxiety reaction was caused or aggravated by the employment incident. He found that
appellant was temporarily totally disabled.
By decision dated January 24, 2014, OWCP denied appellant’s claim. It found that she
failed to establish that the employment incident occurred in the performance of duty. It found
that the injury did not arise during the course of employment or within the scope of compensable
work factors. OWCP found that appellant was not in control of the aircraft at the time it crashed.
Appellant’s reaction to the news of it later crashing did not occur while she was in the
performance of duty. While the aircraft was under her control, she handled its navigation
through her control space and safely transferred it to another control center.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
2

Id.

2

including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.6 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity is not sufficient to constitute a personal
injury sustained in the performance of duty within the meaning of FECA. Thus, disability is not
covered when it results from an employee’s fear of a reduction-in-force. Nor is disability
covered when it results from such factors as an employee’s frustration in not being permitted to
work in a particular environment or to hold a particular position.9
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might befall
an employee contemporaneous or coincidental with her employment; liability does not attach
merely upon the existence of any employee/employer relation.10 FECA provides for the payment
of compensation for disability or death of an employee resulting from personal injury sustained
while in the performance of duty.11 The term “in the performance of duty” has been interpreted to
be the equivalent of the commonly found prerequisite in workers’ compensation law, “arising out
3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

28 ECAB 125 (1976).

6

See supra note 1.

7

See Robert W. Johns, 51 ECAB 136 (1999).

8

Supra note 5.

9

Id.

10

Christine Lawrence, 36 ECAB 422, 423-24 (1985); Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20,
24 (1948).
11

See supra note 1.

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of and in the course of employment.”12 “In the course of employment” deals with the work setting,
the locale and time of injury.13 In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur -(1) at a time when the employee may reasonably be said to be engaged in
her master’s business;
(2) at a place where she may reasonably be expected to be in connection
with the employment;
(3) while she was reasonably fulfilling the duties of his employment or
engaged in doing something incidental thereto.”14
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown and this
encompasses not only the work setting but also a causal concept, the requirement being that the
employment caused the injury. In order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employer benefit is derived or an
employment requirement gave rise to the injury.15
ANALYSIS
Appellant alleged that she developed an emotional condition following the crash of an
aircraft she had directed and handed off to another control tower. The record does not establish
that she was in control of the aircraft at the time of the crash, that she observed the crash on radar
or that she had any further contact with the aircraft or other control tower after relinquishing
control.
The Board found a compensable factor in the performance of duty in M.L.,16 in which an
air traffic controller alleged that he sustained an emotional condition when an aircraft over which
he handed control to another airport crashed. He was also involved in the after-accident
investigation. In M.L., however, the employee was on duty and monitoring the radar screens and
observed activity on the radar screen regarding the plane over which he relinquished control and
called the other airport to question what he just saw. The Board found that he was reasonably
fulfilling his duty to warn the other airport. Therefore, the employee’s emotional condition was
found a reaction to regularly or specially assigned duties. The Board noted that it was not a
situation where the employee was simply standing near the radar and witnessed a stressful
12

James E. Chadden, Sr., 40 ECAB 312, 314 (1988).

13

Denis F. Rafferty, 16 ECAB 413, 414 (1965).

14

Carmen B. Gutierrez, 7 ECAB 58, 59 (1954).

15

See Eugene G. Chin, 39 ECAB 598, 602 (1988).

16

Docket No. 12-354 (issued February 26, 2013).

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incident. In the present case, unlike in M.L., appellant had no further contact with the plane and
did not witness any activity on the radar screen regarding the aircraft prior to its crash. She
continued to perform her work functions when her supervisor informed her of the news of the
crash. The Board finds that this case is distinguishable from M.L., as appellant was not
personally involved in the immediate circumstances surrounding the crash. She did not retain
any professional responsibility for the aircraft.
The facts in this current case are also distinguished from A.C.,17 in which the claimant
was working on radar and became aware of a potential conflict with two aircraft converging on
radar. The employee took action to separate them. The Board noted the potential for a collision
based on the speed and direction of two planes and the employee’s responsibility for monitoring
live aircraft traffic on radar. The employing establishment later informed the claimant in a
disciplinary letter that it was his obligation to take action even if the ultimate responsibility for
such action was with another radar center. The Board found that the claimant was performing
his regular duties under Cutler when the potential collision arose. The incident arose in the
performance of duty and was a compensable employment factor. In the present case, there is no
evidence of record that appellant had responsibility to take any action regarding the plane that
subsequently crashed while attempting to land. There is no evidence that she was in contact with
the other tower or the pilot or that her duties required to assist.
In L.G.,18 an employee had no operational responsibilities for the aircraft involved in a
potential crash situation. He was present in the control room but was not operating the radar or
responsible for the operation of the radar at the time of the incident involving two aircraft. The
Board held that the incident was not in the performance of duty or a compensable factor of
employment. As noted, appellant had no operational responsibilities for the aircraft and was not
the responsible air traffic controller at the time of the crash. As noted, while she learned of the
crash during her shift on December 8, 2013, this knowledge was reported to her by her
supervisor after the fact and the nexus to establish performance of duty was not present. The
Board finds that the incident did not arise out of the course of her assigned duties. Her emotional
reaction is not in the performance of duty.
The Board notes that the employing establishment properly issued a Form CA-16 which
authorized medical treatment as a result of the employee’s claim for an employment-related
injury. The CA-16 form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim.19 The period for which treatment is authorized by a CA-16 form is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP.20 On return of the record, OWCP
should adjudicate whether appellant’s examination or treatment is reimbursable under the form.

17

Docket No. 12-1050 (issued December 28, 2012).

18

Docket No. 09-276 (issued August 11, 2009).

19

L.E., Docket No. 14-684 (issued July 29, 2014); see Tracy P. Spillane, 54 ECAB 608 (2003).

20

See 20 C.F.R. § 10.300(c).

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CONCLUSION
The Board finds that the December 8, 2013 employment incident did not arise out of the
course of appellant’s assigned duties. Appellant has not established a compensable work factor.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1151
Issued: September 10, 2007

Case Submitted on the Record

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

JURISDICTION
On March 13, 2007 appellant, through his representative, filed a timely appeal from a
May 18, 2006 decision of the Office of Workers’ Compensation Programs denying his
occupational disease claim and a January 24, 2007 decision denying his request for review of the
written record by an Office hearing representative. Pursuant to 20 C.F.R. §§ 501.2(c) and
501(d)(3), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained swelling in both
feet in the performance of his duty, causally related to factors of his federal employment; and
(2) whether the Office properly denied appellant’s request for review of the written record by an
Office hearing representative.

FACTUAL HISTORY
On March 24, 2006 appellant, then a 44-year-old mail carrier, filed an occupational
disease claim alleging that on March 11, 2006 he first realized the swelling in his feet was due to
constant walking and dismounting while on his mail route.
In a letter dated April 3, 2006, the Office advised appellant that the evidence submitted
was insufficient to support his claim. It instructed appellant to provide additional factual and
medical evidence, including a comprehensive medical report from his treating physician
describing his symptoms, results of examinations and tests, diagnosis, the treatment provided and
the doctor’s opinion with medical rationale on the cause of his condition. The Office requested
that appellant submit this evidence within 30 days. Appellant did not respond.
By decision dated May 18, 2006, the Office denied appellant’s claim on the grounds that
there was no medical evidence providing a diagnosis connecting a condition to the alleged
employment factor.
Subsequent to the decision appellant submitted a December 27, 2006 disability slip and
December 15, 2006 certification of health care report by Dr. Penny Lawin, a treating Boardcertified orthopedic surgeon; a November 27, 2006 disability slip by Dr. J.R. Barnes, a treating
Board-certified family practitioner; and progress notes for the period March 24 through April 28,
2006 by Dr. Brian E. Schockley, a treating podiatrist.1
In a request with a postmark date of December 22, 2006, appellant requested review of
the written record by an Office hearing representative.
By decision dated January 24, 2007, the Office’s Branch of Hearings and Review denied
appellant’s request for review for the written record by an Office hearing representative. The
Office found that appellant’s request was postmarked December 22, 2006, which was more than
30 days after issuance of the May 18, 2006 decision and that he was not entitled to review of the
written record as a matter of right. The Office nonetheless considered the matter in relation to
the issue involved and denied appellant’s request on the grounds that the issue was factual and
medical in nature and could be addressed through the reconsideration process by submitting
additional evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act; that the claim was filed within
the applicable time limitation; that an injury was sustained while in the performance of duty as
alleged; and that any disability and/or specific condition for which compensation is claimed are
1

As this evidence was not reviewed by the Office in a merit decision, it may not be considered by the Board in
this appeal. See 20 C.F.R. § 501.2(c).
2

5 U.S.C. §§ 8101-8193.

2

causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.5
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
At the time the Office issued its May 18, 2006 decision the record was devoid of any
factual or medical information that would support appellant’s assertion that his employment
duties of walking and dismounting on his mail route caused or aggravated the swelling in his
feet. Appellant did not respond to the Office’s request for the requisite evidence. There is no
evidence documenting an employment-related medical condition.
In this case, appellant did not provide the required factual and medical evidence
necessary to establish a prima facie claim for compensation benefits under the Act.4
Accordingly, the Board finds that he has failed to establish that he sustained an injury in the
performance of duty.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of an Office final

3

Sedi L. Graham, 57 ECAB ___ (Docket No. 06-135, issued March 15, 2006).

4

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

5

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

6

L.D., 58 ECAB ___ (Docket No. 06-1627, issued February 8, 2007); Solomon Polen, 51 ECAB 341 (2000).

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decision.7 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.8 The Office has
discretion, however, to grant or deny a request that is made after this 30-day period.9 In such a
case, the Office will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.10
ANALYSIS -- ISSUE 2
Appellant’s undated request for a review of the written record by an Office hearing
representative was postmarked December 22, 2006 which was more than 30 days after the
Office’s May 18, 2006 decision denying his claim. The Board finds that, as his request was
more than 30 days following the issuance of the Office’s decision, appellant is not entitled to a
hearing as a matter of right. The Office considered whether to grant a discretionary hearing and
advised appellant that he could pursue his claim through the reconsideration process. The Board
finds that the Office properly exercised its discretion in denying appellant’s request for a hearing.
The only limitation on the Office’s authority is reasonableness. Abuse of discretion is generally
shown through proof of manifest error, a clearly unreasonable exercise of judgment or actions
taken which are contrary to logic and deductions from known facts.11 The Board will affirm the
Office’s January 24, 2007 decision denying appellant a review of the written record by an Office
hearing representative as there is no evidence that the Office abused its discretionary authority.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a foot condition in the performance of duty.

7

5 U.S.C. § 8124(b)(1). See D.F., 58 ECAB ___ (Docket No. 06-1815, issued November 27, 2006).

8

20 C.F.R. § 10.616. See Hubert Jones, Jr., 57 ECAB ___ (Docket No. 05-603, issued March 10, 2006).

9

Teresa M. Valle, 57 ECAB ___ (Docket No. 06-438, issued April 19, 2006).

10

William E. Seare, 47 ECAB 663 (1996).

11

See Hubert Jones, Jr., 57 ECAB ___ (Docket No. 05-603, issued March 10, 2006) and Daniel J. Perea, 42
ECAB 214 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 24, 2007 and May 18, 2006 are affirmed.
Issued: September 10, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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

Docket No. 14-1064
Issued: September 29, 2014

Case Submitted on the Record

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

JURISDICTION
On April 7, 2014 appellant, through his attorney, filed a timely appeal from the
December 6, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied his injury 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 a March 29, 2013 work incident caused appellant’s right knee
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 9, 2012 appellant, a 54-year-old motor vehicle operator, sustained a traumatic
injury in the performance of duty under OWCP File No. xxxxxx631.2 OWCP accepted the claim
for right knee internal derangement, lateral meniscus tear and aggravation of right knee
degenerative joint disease. It authorized arthroscopic surgery performed on November 21, 2012.
Physical therapy notes on March 20, 2013 indicated that, in addition to his right knee
condition, appellant had left leg joint pain and difficulty walking.
Appellant returned to limited duty on March 29, 2013 working two hours a day. After
the first day, he stopped work and did not return. On April 9, 2013 appellant filed a recurrence
of disability claim alleging that he sustained knee pain as a result of excessive walking to and
from his work area on March 29, 2013.3
The employing establishment controverted the claim and noted that the most walking
appellant would have done on March 29, 2013 was a total of approximately 15 minutes walking
in and out of the building.
An April 1, 2013 disability certificate indicated that appellant was totally disabled
beginning March 30, 2013: “Operative arthroscopy right knee November 21, 2012. [ICD-9]
717.9 Internal derangement of knee.”
An April 13, 2013 magnetic resonance imaging (MRI) scan of the left knee showed a
complex tear of the anterior horn of the lateral meniscus, joint effusion, osteoarthritis and a mild
subluxation of the patella laterally.
OWCP determined that appellant was not claiming a recurrence of disability due to his
March 9, 2012 work injury but was instead claiming a new traumatic injury caused by specific
events occurring on March 29, 2013, namely, walking to and from work that day. It asked him
to submit a physician’s opinion, supported by a medical explanation, as to how the reported work
incident caused or aggravated a medical condition.
Dr. Mark A.P. Filippone, a Board-certified physiatrist, first saw appellant on
May 30, 2013. He related that appellant reported for work on March 29, 2013 and it took him 30
minutes to walk from the parking lot to the building in which he worked. “By then I was already
exhausted and I had a lot of pain in both knees.” Dr. Filippone reviewed an April 4, 2012 MRI
scan of appellant’s right knee, a March 14, 2013 x-ray of his left knee and the April 13, 2013
MRI scan of his left knee. He noted that appellant suffered from bronchitis, for which he used
inhalers. Appellant stopped smoking four years ago.
Dr. Filippone noted that appellant was returned to work on March 29, 2013, but he could
not walk from the parking lot to the front door of the employing establishment without
2

Appellant stepped out of a truck and felt a pop in his right knee.

3

Appellant indicated that he returned to work with limitations on walking, sitting and kneeling.

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excruciating pain, which was causing him to flare-up in the right knee and now with the left knee
as well. He described his findings on physical examination and noted that appellant felt he had
returned to work too soon. Dr. Filippone diagnosed internal derangement of the right knee,
lumbosacral radiculitis, rule out lumbosacral radiculopathy, rule out sciatic neuropathy and
internal derangement of the left knee secondary to overuse from limping off the injured, painful
right knee. He stated that appellant was totally disabled for work: “Driving and walking to and
from the parking lot is injuring [appellant].”
In a decision dated June 17, 2013, OWCP denied appellant’s March 29, 2013 injury
claim. It accepted that the work incident occurred as alleged and that he was in the performance
of duty, but found that Dr. Filippone provided insufficient medical rationale as to how the
accepted walking caused or aggravated the diagnosed knee conditions.
Appellant, through his representative, requested an oral hearing before an OWCP hearing
representative.
Dr. Filippone completed an attending physician’s form report indicating with an
affirmative mark that the history of injury described in his May 30, 2013 report caused or
aggravated the internal derangement of both knees. He indicated that there was no history or
evidence of concurrent or preexisting injury or disease or physical impairment.
On August 22, 2013 Dr. Filippone noted that appellant’s left knee was worsening despite
his not working. On September 17, 2013 he again noted that the left knee was worsening as a
result of limping off the more painful injured right knee, despite not working, modifying
activities of daily living, walking less and taking medications.
On October 21, 2013 Dr. Filippone stated:
“In my professional medical opinion, it is well within a reasonable degree of
medical probability that the aggravation of [appellant’s] right knee injury is a
direct and sole result of doing additional walking, sitting and kneeling associated
with his job as well as the long distance he had to walk back and forth through the
facility to his vehicle to commute to work.”
In a decision dated December 6, 2013, an OWCP hearing representative affirmed the
denial of appellant’s March 29, 2013 injury claim. She found that the medical evidence did not
provide a physician’s explanation of how walking approximately 30 minutes to work contributed
to his diagnosed right or left knee conditions.
On appeal, appellant’s representative argues that appellant has provided prima facie
factual and medical evidence sufficient to establish a work injury or at least require additional
development.

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LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim. When an employee
claims that he or she sustained an injury in the performance of duty, he or she must submit
sufficient evidence to establish that he or she experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. He or she must also establish that such
event, incident or exposure caused an injury.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,7 must be
one of reasonable medical certainty8 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.9
ANALYSIS
OWCP accepted that appellant walked from the parking lot to his work location when he
reported to work on March 29, 2013 and that he walked back to his vehicle at the end of his twohour assignment. Appellant has established that he experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. The question for determination
is whether the accepted work incident caused or aggravated his knee condition.
Dr. Filippone, the attending physiatrist, offered an opinion generally supporting the
element of causal relationship. Appellant had related that it took him 30 minutes to walk from
the parking lot to the building in which he was supposed to work on March 29, 2013. “By then I
was already exhausted and I had a lot of pain in both knees.” Dr. Filippone stated that the
aggravation of appellant’s right knee condition was a direct and sole result of doing additional
walking, sitting and kneeling associated with his job, as well as the long distance he had to walk
back and forth through the facility to his vehicle to commute to work.
The claim appellant filed on April 9, 2013 did not attribute his knee pain to walking,
sitting and kneeling associated with his limited duty on March 29, 2013. Appellant indicated
that, when he returned to work on March 29, 2013, he had limitations on walking, sitting and
kneeling. He attributed his knee pain instead to walking to and from his work area. As appellant
4

5 U.S.C. § 8102(a).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

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advised Dr. Filippone, the walk to and from the parking lot that day caused pain in both knees.
Pain is generally considered a symptom, not a firm medical diagnosis.
Appellant injured his right knee on March 9, 2012, which OWCP accepted for right knee
internal derangement, lateral meniscus tear and aggravation of right knee degenerative joint
disease under OWCP File No. xxxxxx631.
He underwent arthroscopic surgery on
November 21, 2012. If walking to and from the parking lot on March 29, 2013 aggravated
appellant’s right knee conditions, Dr. Filippone did not explain from a biomechanical point of
view what effect the act of walking has on such a condition and what objective findings
demonstrated to him that the walking appellant performed on March 29, 2013 had caused an
aggravation of the preexisting condition. Appellant’s attending physician’s report erroneously
listed that there was no evidence of concurrent or preexisting injury or disease.
Physical therapy notes document that appellant had left leg joint pain and difficulty
walking prior to his return to limited duty on March 29, 2013. An April 13, 2013 MRI scan of
the left knee showed a complex tear of the anterior horn of the lateral meniscus, joint effusion,
osteoarthritis and a mild subluxation of the patella laterally. If walking to and from the parking
lot on March 29, 2013 caused or aggravated the left knee conditions, Dr. Filippone failed to
explain how and identify the objective findings that demonstrate such. He would later note that
the left knee was getting worse as a result of limping off the more painful injured right knee,
despite appellant not working, modifying activities of daily living, walking less and taking
medications.
The Board finds that the reports of Dr. Filippone are of diminished probative or
evidentiary value because he has failed to offer sound medical reasoning to support his stated
conclusion.10 Dr. Filippone’s narrative reports are effectively no more probative than his
attending physician’s form report, wherein he indicated with an affirmative mark that the internal
derangement of both knees was caused or aggravated by the employment activity described. The
Board has held that when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, that opinion has little probative value and is insufficient to establish
causal relationship.11 Appellant’s burden includes the necessity of furnishing an affirmative
opinion from a physician who supports his conclusion with sound medical reasoning.
The evidence submitted is not based on a full or accurate medical history. Appellant had
trouble with both knees before reporting to work on March 29, 2013 and both his knees
worsened over time despite not working. Dr. Filippone, who first saw appellant two months
after the claimed injury, did not adequately address the contribution, if any, the walking on
March 29, 2013 made to his diagnosed knee conditions. He did not sufficiently address the issue
of causal relation.
The Board finds that appellant has not met his burden of proof to establish that the
March 29, 2013 work incident caused a knee injury. The medical opinion evidence is not well
10

See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing factors that bear on the probative value of
medical opinions). Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).
11

E.G., Lillian M. Jones, 34 ECAB 379 (1982).

5

rationalized. The Board will therefore affirm OWCP’s December 6, 2013 decision denying
appellant’s traumatic injury 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 has not met his burden of proof to establish that the
March 29, 2013 work incident caused a knee injury.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
David G. Jennings, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0198
Issued: July 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 4, 2019 appellant, through counsel, filed a timely appeal from an October 9,
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.3

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.

3
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 evidence for the first time
on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish ratable hearing loss
for schedule award purposes.
FACTUAL HISTORY
On May 1, 2019 appellant, then a 59-year-old sheet metal mechanic supervisor, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss due to
factors of his federal employment. He indicated that he first became aware of his hearing loss and
its relationship to his federal employment on July 10, 2005, and he noted that it had only recently
come to his attention that he could file a claim for hearing loss. On the reverse side of the claim
form, the employing establishment indicated that appellant was last exposed to the conditions
alleged to have caused his hearing loss on March 30, 2019.
A March 8, 2019 report by Dr. Mavis Garrett, an audiologist, indicated that appellant
experienced moderate binaural hearing loss.
In a March 28, 2019 response to a hearing loss development letter and questionnaire,
appellant indicated that from January 1986 to January 2009 he was exposed to noise at work from
various pneumatics tools, grinding, sanding, hammering, drilling, sandblasting, and machinery for
an average of 40 hours per week and was provided with earplugs. From January 2009 to
April 2016, he was exposed to noise at work from the same sources for an average of 35 hours per
week and was provided with earplugs. From April 2016 to the present, appellant was exposed to
noise at work from the same sources for 10 hours a week and was provided with protection in the
form of earplugs. He also indicated that from October 1984 to October 1985 he was a privatesector maintenance worker and was exposed to noise at work from a lawnmower for six hours per
day.
In a May 2, 2019 development letter, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. It advised him of the type of medical evidence needed and
indicated that it was scheduling a second opinion examination for him to address this deficiency.
In a May 2, 2019 development letter to the employing establishment, OWCP requested that
it review appellant’s claim and provide comments from a knowledgeable supervisor regarding
appellant’s employment-related exposure to noise.
An August 1, 2011 letter from the employing establishment’s occupational audiologist
indicated that appellant had a significant threshold shift in his hearing that was most likely
permanent, as there was a change in his hearing when compared with his reference audiogram. A
June 15, 2017 letter from the employing establishment’s audiology division indicated that
appellant’s recent hearing tests demonstrated that he had a permanent threshold shift (PTS) that
may or may not be work related, as there was a change in his hearing in comparison to his reference
audiogram.
A May 3, 2019 memorandum by the employing establishment indicated that appellant was
routinely exposed to noise at work and his statements regarding his employment history were
accurate.

2

OWCP received the results from audiograms performed by the employing establishment
as part of a hearing conservation program dated from September 23, 1985 through May 29, 2019.
A May 29, 2019 report from Dr. Erica Wenner, an employing establishment audiologist,
indicated that appellant had mild-to-moderate sensorineural hearing loss of three to eight kilohertz
in both ears. In a letter dated June 14, 2019, Dr. Wenner compared appellant’s most recent
audiogram dated May 29, 2019 with his earliest audiogram dated September 23, 1985 and
indicated that his most recent audiometric thresholds showed a hearing loss in the left ear that is
in excess of what would normally be predicted on the basis of presbycusis, and that in her opinion
appellant’s hearing loss was just as likely as not to have been caused, aggravated, precipitated, or
accelerated by noise exposure encountered during his employment.
On June 21, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Charles Beasley, a Board-certified otolaryngologist, for a
second opinion evaluation.
In a report dated July 22, 2019, Dr. Beasley noted that he had performed a physical
examination and reviewed appellant’s medical records and SOAF, and he noted that there was no
significant variation in the SOAF. He reviewed an audiogram conducted by an audiologist on the
same date, which he found demonstrated losses of 15, 30, 15 and 35 decibels (dBs) on the right
and 10, 25, 20, and 50 dBs on the left at 500, 1,000, 2,000, and 3,000 Hertz (Hz), respectively.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),4 Dr. Beasley calculated appellant’s total monaural
hearing loss for his right ear by adding his right ear dB losses to a total of 95 and then dividing by
4 to obtain the average hearing loss of 23.75 dBs. This average loss was then reduced by 25 dBs
to equal -1.25, which was multiplied by the established factor of 1.5 to compute a -1.875 percent
monaural hearing loss in the right ear. Dr. Beasley calculated appellant’s total monaural hearing
loss for his left ear by adding his left ear dB losses to a total of 105 and then dividing by 4 to obtain
the average hearing loss of 26.25 dBs. This average loss was then reduced by 25 dBs to equal
1.25, which was multiplied by the established factor of 1.5 to compute a 1.875 percent monaural
hearing loss in the left ear.5 Dr. Beasley did not calculate appellant’s binaural hearing loss
percentage. He diagnosed binaural sensorineural hearing loss and opined that compared to the
audiometric findings at the beginning of appellant’s noise exposure from federal employment,
which indicated that he had normal hearing at that time, he displayed sensorineural loss in excess
of what would be normally predicated on the basis of presbycusis. Dr. Beasley opined that
appellant’s sensorineural hearing loss was due to his noise exposure encountered in his federal
employment, and he recommended noise protection, a hearing aid evaluation, and an annual
audiogram.
By decision dated September 5, 2019, OWCP accepted appellant’s claim for binaural
sensorineural hearing loss.
On September 5, 2019 OWCP referred appellant’s medical records and SOAF to
Dr. Jeffrey M. Israel, a Board-certified otolaryngologist serving as a district medical adviser
4

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

5

The Board notes that Dr. Beasley transposed the decibel losses for the right and left ear from the audiogram in his
calculation of the percentage of hearing loss.

3

(DMA), for calculation of appellant’s percentage of permanent hearing impairment and
assignment of the date of maximum medical improvement (MMI).
On September 11, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a September 12, 2019 report, Dr. Israel indicated that he reviewed appellant’s SOAF
and medical records, including Dr. Beasley’s July 22, 2019 report. He determined that appellant
had reached MMI on July 22, 2019 because it was the date of the audiogram which was used by
Dr. Beasley to calculate his hearing impairment and was his most recent audiogram. Dr. Israel
reviewed appellant’s July 22, 2019 audiogram and found demonstrated 0 percent monaural hearing
loss in the right ear and 1.875 percent monaural hearing loss in the left ear. He indicated that he
agreed with Dr. Beasley’s calculations of appellant’s monaural hearing loss in both ears. Dr. Israel
then calculated appellant’s binaural hearing loss. He multiplied 0, the smaller percentage of
hearing loss sustained by the right ear, by 5 and then added 1.88, the larger percentage of hearing
loss sustained by the left ear. Dr. Israel then divided by six to compute 0.3 percent binaural hearing
loss, which he rounded to 0 percent. He recommended that appellant have yearly audiograms,
noise protection, and hearing aids.
By decision dated October 9, 2019, OWCP denied appellant’s schedule award claim
finding that his hearing loss was not sufficiently severe to demonstrate a ratable impairment, and
he was therefore not entitled to schedule award compensation.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants.8 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.9
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.10 With respect to a schedule award, it is the claimant’s
burden of proof to establish permanent impairment of a scheduled member or function of the body
as a result of his or her employment injury.11 A claimant may seek an increased schedule award
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
10

B.B., Docket No. 19-1491 (issued February 3, 2020); John W. Montoya, 54 ECAB 306 (2003).

11

R.R., Docket No. 19-0750 (issued November 15, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).

4

if the evidence establishes that he or she sustained an increased impairment causally related to an
employment injury.12 The medical evidence must include a detailed description of the permanent
impairment.13
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.14 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides point out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by
five, then added to the greater loss, and the total is divided by six to arrive at the amount of binaural
hearing loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing
loss.15
It is well established that, if calculations based on the monaural hearing loss would result
in greater compensation than calculations for binaural loss, then the monaural hearing loss
calculations should be used.16
ANALYSIS
The Board finds that appellant has established two percent left-sided monaural hearing
loss.
OWCP referred appellant to Dr. Beasley for a second opinion examination to evaluate his
hearing loss. In his July 22, 2019 report, Dr. Beasley reviewed an audiogram conducted on the
same date which he stated demonstrated losses of 10, 25, 20, and 50 decibels (dBs) on the left and
15, 30, 15, and 35 dBs on the right at 500, 1,000, 2,000, and 3,000 Hertz (Hz), respectively. He
conducted a physical examination and determined that appellant sustained work-related binaural
hearing loss. Dr. Beasley transposed appellant’s right and left ear decibel losses, but recognizing
this error, the Board finds that he calculated his total monaural hearing loss for his right ear of zero
percent hearing loss. He calculated appellant’s total monaural hearing loss for his left ear by
adding his left ear dB losses to a total of 105 and then divided by 4 to obtain the average hearing
loss of 26.25 dBs. This average loss was then reduced by 25 dBs to equal 1.25, which was
multiplied by the established factor of 1.5 to compute 1.875 percent hearing loss in the left ear.
In a September 12, 2019 report, OWCP’s DMA Dr. Israel indicated that he reviewed the
July 22, 2019 report by Dr. Beasley and he determined that appellant’s date of MMI was
July 22, 2019. He reviewed appellant’s July 22, 2019 audiogram and concurred with Dr. Beasley’s
monaural hearing loss calculations, of zero percent right monaural loss and 1.85 percent left
12

B.B., supra note 10; Rose V. Ford, 55 ECAB 449 (2004).

13

B.B., supra note 10; Vanessa Young, 55 ECAB 575 (2004).

14

A.M.A., Guides 250.

15

J.E., Docket No. 19-1325 (issued December 13, 2019); E.C., Docket No. 19-1007 (issued November 8, 2019).

16

B.B., Docket No. 16-0512 (issued May 17, 2016); Reynoldo R. Lichtenberger, 52 ECAB 462 (2001).

5

monaural loss. Dr. Israel then multiplied 0, the smaller percentage of hearing loss sustained by
the right ear, by 5 and then added 1.88, the larger percentage of hearing loss sustained by the left
ear. He then divided by six to compute a 0.3 binaural percent hearing loss, which he rounded down
to 0 percent.
While section 8107(c)(13) provides separate calculations for loss of hearing in one ear and
for loss of hearing in both,17 as noted above, if calculations based on the monaural hearing loss
would result in greater compensation than calculations for binaural loss, then the monaural hearing
loss calculations should be used.18 Herein, appellant’s rating is greater under the procedures used
for calculating monaural hearing loss and therefore the Board finds that he has established leftsided monaural hearing loss. FECA provides that a claimant is entitled to 52 weeks of
compensation for 100 percent loss of hearing in one ear and 200 weeks compensation for 100
percent hearing loss in both ears.19 Appellant’s binaural hearing loss was 0.3 percent, which
Dr. Israel properly rounded down to zero in its calculations.20 However, the 1.875 percent left
monaural loss should have been rounded up to 2 percent and multiplied by 52 weeks.21 Appellant’s
left-sided monaural hearing loss results in 1.04 weeks of compensation. As his monaural hearing
loss resulted in both a ratable hearing loss for schedule award purposes and in greater
compensation, the Board finds that OWCP incorrectly denied appellant’s schedule award claim
based on his left-sided monaural hearing loss. On return of the case record OWCP shall grant
appellant a schedule award for two percent left-sided monaural hearing loss.
CONCLUSION
The Board finds that appellant has two percent left-sided monaural hearing loss.

17

5 U.S.C. § 8107(c)(13).

18

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

19

See M.P., Docket No. 17-1736 (issued February 14, 2018).

20

The policy of OWCP is to round the calculated percentage of impairment to the nearest whole number. Results
should be rounded down for figures less than .5 and up for .5 and over. See V.M., Docket No. 18-1800 (issued April 23,
2019); Robert E. Cullison, 55 ECAB 570 (2004). See also Federal (FECA) Procedure Manual, supra note 8 at Chapter
3.700.3(b) (January 2010).
21

The Board notes OWCP’s policy to round the calculated percentage of impairment to the nearest whole number.
See V.M., id.; J.H., supra note 18; Robert E. Cullison, id. See also Federal (FECA) Procedure Manual, supra note 8
at Chapter 3.700.3(b) (January 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the October 9, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 9, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7