United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF STATE, BUREAU OF
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ADMINISTRATION, Washington, DC, Employer )
__________________________________________ )
T.B., Appellant

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

Docket No. 15-1643
Issued: November 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 28, 2015 appellant filed a timely appeal from a July 16, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease in the performance of duty.
FACTUAL HISTORY
On April 16, 2015 appellant, then a 42-year-old human resource specialist, filed an
occupational disease claim (Form CA-2) alleging that factors of her federal employment caused
or aggravated her bilateral carpal tunnel syndrome, arthritis, disc disease, and emotional stress.
1

5 U.S.C. § 8101 et seq.

She alleged that typing, sitting by a window, and a lack of response to her reasonable
accommodation request contributed to her condition. Appellant noted that she first became
aware of her condition on March 17, 2015 and its relation to her federal employment on
March 19, 2015. She stopped work on April 14, 2015.
In a February 2, 2015 diagnostic report, Dr. Carl Waldman, a Board-certified neurologist,
advised that a nerve conduction study of the upper extremity revealed bilateral carpal tunnel
syndrome.
By report dated March 23, 2015, Dr. John Ergener, a Board-certified orthopedic surgeon,
advised that appellant complained of neck and arm pain. He assessed cervical disc degeneration,
cervical disc herniation, and cervical radiculopathy. Dr. Ergener noted that appellant recently
had a flare up of pain and was having difficulty at work typing all day. Examination of the
cervical spine revealed mild trapezius tenderness, mid-left medial scapular boarder tenderness,
and mild paraspinal tenderness.
In a March 30 report, Dr. Paul Millea, Board-certified in family medicine, advised that
appellant had been under his care since April 28, 2014 for left rotator cuff syndrome and cervical
disc herniation with brachial radiculitis. He noted that her conditions were ameliorated by a
recumbent position and that her medications caused dizziness, making driving unsafe. As a
result, Dr. Millea recommended that appellant be allowed to telework twice a week.
On April 2, 2015 Dr. Kathryn Palmer, Board-certified in neuroradiology and diagnostic
radiology, advised that an x-ray of the cervical spine revealed no acute bony findings and
moderate spondylotic changes at C4-5, C5-6, and C6-7 with mild progression at C5-6 and C6-7
as compared to 2010. An April 3, 2015 x-ray of the lumbar spine revealed no acute bony
findings, interval development of grade 1 anterolisthesis of L4 on L5, worsening of moderate
facet joint arthrosis in the lower lumbar spine, and no definite change in the moderate
degenerative disc changes at L5-S1.
Appellant submitted several work order requests from May 29, 2014 through April 26,
2015 regarding cold air from a window vent blowing on her back.
By letter dated April 22, 2015, OWCP advised appellant of the type of evidence needed
to establish her claim.
In an April 22, 2015 report, Dr. Swati Shirali, Board-certified in orthopedic and hand
surgery, advised that appellant was experiencing numbness with writing, typing, and driving.
She assessed bilateral carpal tunnel syndrome. Dr. Shirali opined that appellant’s work appeared
to be aggravating her symptoms and noted that she filed a workers’ compensation claim as she
felt that her work was contributing to her condition.
On April 27, 2015 Dr. Gregory Ford, a Board-certified orthopedic surgeon, advised that
appellant complained of neck, arm, hand, and back pain. He detailed her treatment history and
diagnostic testing results. Dr. Ford assessed degenerative arthritis of the cervical and lumbar
spine and bilateral carpal tunnel syndrome.

2

By report dated April 29, 2015, Dr. Steven Scherping, a Board-certified orthopedic
surgeon, advised that appellant complained of neck and intermittent back pain. On examination
he noted minimal restriction in flexion and extension and no discrete weakness of the upper
extremity. Dr. Scherping noted that appellant has a disc protrusion and some disc degeneration
to the lower cervical spine, but he opined that there was nothing worrisome about his findings.
He noted that she discussed the issues in her workplace that she felt caused an aggravation of her
symptoms. Dr. Scherping advised that a standing and sitting workstation, alteration to the vent
in appellant’s office which blew cold air on her, and telework one day per week was reasonable
based on the severity of her condition.
In a May 6, 2015 report, Dr. Sean Johnson, a Board-certified orthopedic surgeon, advised
that appellant had pain and numbness in her hands that began in January 2014. He opined that
there was reasonable medical certainty that her bilateral carpal tunnel syndrome was related to
her job which involved a significant amount of repetitive typing since 2007.
In a May 12, 2015 statement, appellant advised that her job required repetitive movement
of both wrists and hands for typing and moving her computer mouse nine hours each workday.
She noted that her hobbies included water aerobics and walking. Appellant stated that her
nonwork related computer usage was 15 minutes to an hour during the weekend. She advised
that numbness and tingling in her hands began around the fall of 2014 and that she requested
typing assistance, and ultimately she was trained to use an assistance typing software. Appellant
detailed her treatment history and noted that she had no other hand or wrist injuries previously.
In a May 27, 2015 statement, appellant advised that her health care provider told her that
it could not provide her with a medical report and that she would need to seek an assessment
through an independent medical examiner. She also advised that she no longer wanted to pursue
an emotional condition claim.
By decision dated July 16, 2015, OWCP denied appellant’s claim because the medical
evidence was insufficient to establish that the diagnosed conditions were causally related to
factors of her employment.
On appeal appellant argues that medical evidence submitted established that her
conditions were causally related to factors of her employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged, and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

3

the employment injury.2 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.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (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 evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.6
ANALYSIS
It is not disputed that appellant’s job entailed typing and that she made several requests to
close a window vent blowing cold air. However, the medical evidence is insufficient to establish
that these factors caused or aggravated her bilateral carpal tunnel syndrome or disc disease.
In his May 6, 2015 report, Dr. Johnson advised that appellant had pain and numbness in
the hands beginning in January 2014. He opined that there was reasonable medical certainty that
her bilateral carpal tunnel syndrome was related to her job, which involved a significant amount
of repetitive typing. Although Dr. Johnson provides an opinion on causal relationship he does
not provide any medical rationale to support his opinion. The Board has long held that medical
opinions not containing rationale on causal relation are of diminished probative value and are
generally insufficient to meet appellant’s burden of proof.7 This report is also of limited
probative value as Dr. Johnson did not explain how the particular work duties contributed to her
condition.
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.J., 59 ECAB 408 (2008); supra note 3.

6

James Mack, 43 ECAB 321 (1991).

7

Carolyn F. Allen, 47 ECAB 240 (1995).

4

In her April 22, 2015 report, Dr. Shirali advised that appellant was experiencing
numbness with writing, typing, and driving. She assessed bilateral carpal tunnel syndrome.
Dr. Shirali opined that appellant’s work appeared to be aggravating her symptoms. This report is
also of limited probative value as Dr. Shirali does not provide medical rationale to explain her
opinion on causation.8
In his March 30 report, Dr. Millea advised that appellant had been under his care since
April 28, 2014 for left rotator cuff syndrome and cervical disc herniation with brachial
radiculitis. He noted that her conditions were ameliorated by a recumbent position and that her
medications caused dizziness, making driving unsafe. As a result, Dr. Millea recommended that
appellant be allowed to telework twice a week. Although he recommended certain work
accommodations, he does not offer an opinion as to the cause of her diagnosed conditions.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.9
Dr. Ergener assessed cervical disc degeneration, cervical disc herniation, and cervical
radiculopathy. He noted that appellant had a flare up of pain and was having difficulty at work
typing all day. However, the Board has found that the mere fact that a condition manifests itself
or is worsened during an employment period does not raise an inference of causal relationship
between the two.10 Dr. Ergener does not specifically attribute appellant’s diagnosed condition to
her work duties, nor does he explain how these particular work duties contributed to her
diagnosed conditions. Thus, this report is of limited probative value.
Dr. Scherping advised that appellant had a disc protrusion and some disc degeneration to
the lower cervical spine, but opined that there was nothing worrisome about his findings. He
noted that she felt her workplace aggravated her symptoms and recommended certain
accommodations, but he did not provide an opinion as to whether these workplace conditions
actually caused or aggravated her condition. The Board has held that medical opinions that do
not state an opinion on causal relationship are of little probative value.11
Multiple diagnostic reports were submitted. However, they are insufficient to discharge
appellant’s burden of proof as they do not offer a physician’s opinion on causal relationship.12
On appeal appellant disagreed with OWCP’s decision and reiterated that medical
evidence established causal relationship. However, the claim is deficient because she has not
submitted medical evidence explaining how the established work factors caused or contributed to
the diagnosed condition. As noted, causal relationship is a medical question that must be
8

Id.

9

S.E., Docket No. 08-2214 (issued May 6, 2009).

10

Patricia Bolleter, 40 ECAB 373 (1988).

11

See supra note 9.

12

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).

5

established by probative medical opinion from a physician.13 The physician must accurately
describe appellant’s work duties and medically explain the pathophysiological process by which
these duties would have caused or aggravated her condition.14 Because appellant has not
provided such medical opinion evidence in this case, she has failed to meet her burden of proof.
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 did not meet her burden of proof to establish an
occupational disease caused by factors of her employment.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

See supra note 5.

14

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Keller, TX, Employer
__________________________________________

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

Docket No. 06-1875
Issued: January 17, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated May 12, 2006, granting a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a one percent permanent impairment of the
left upper extremity, for which she received a schedule award.

FACTUAL HISTORY
On February 7, 2003 appellant, a 60-year-old rural carrier, filed a traumatic injury claim
alleging that on February 6, 2003 she injured her upper left arm while pulling a bag of mail.1
The Office accepted the claim for left elbow tendinitis and forearm tendinitis.2
In a report dated January 14, 2005, Dr. John A. Sklar, an examining Board-certified
physiatrist, concluded that appellant had a one percent impairment of the left upper extremity
due to pain based upon the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed.).3 A physical examination revealed no objective verifiable
impairment, normal left upper extremity range of motion, no sensory loss, decreased strength due
to pain “which is not a ratable strength deficit” and “some tenderness to palpation in the left
biceps and left upper extremity.”
In a November 7, 2005 report, Dr. Ronald Blum, a Board-certified orthopedic surgeon
and an Office medical adviser, reviewed the medical evidence and adopted Dr. Sklar’s rating for
a one percent impairment of her left upper extremity due to pain based on the A.M.A., Guides.
The Office medical adviser noted appellant’s accepted conditions were left lateral epicondylitis
and left elbow strain. He listed January 14, 2005 as the date of maximum medical improvement.
Utilizing section 18.3d, page 573, the Office medical adviser found a one percent impairment of
the left upper extremity. He explained that Chapter 16.8a on page 508 of the A.M.A., Guides,4
provides that a decrease in strength cannot be rated in the presence of decreased motion, painful
conditions, deformities, or in the absence “of parts that prevent effective application of maximal
force in the region being evaluated.” The Office medical advised concluded that this was the
reason that Dr. Sklar recommended not using the loss of strength determination.
On December 22, 2005 appellant filed a claim for a schedule award.
The Office issued a schedule award on May 12, 2006 for a one percent permanent loss of
the left upper extremity. The period of the award ran from January 14 to February 4, 2005, for a
total of 3.12 weeks of compensation.

1

This was assigned claim number 16-2051767.

2

The Board notes that appellant filed an occupational disease claim on August 19, 2004 attributing her severe
carpal tunnel syndrome to her employment. The Office accepted the claim for left carpal tunnel syndrome on
September 24, 2004 and authorized left carpal tunnel surgery, which was performed on December 14, 2004. This
was assigned claim number 16-208115. A cover sheet for both claims indicate that the Office combined the two
claims with 16-2051767 as the master file number. On May 22, 2006 appellant filed a schedule award claim for her
carpal tunnel syndrome. The Office has not yet issued a final decision regarding appellant’s request for a schedule
award for her carpal tunnel syndrome claim. As there is no final Office decision on this issue, the Board may not
address this issue for the first time on appeal. See 20 C.F.R. § 501.2(c).
3

A.M.A., Guides.

4

Id. at 508, Chapter 16.8a.

2

LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act5 and section 10.404 of
the implementing federal regulation,6 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides7 has been adopted by the implementing regulation as the appropriate standard
for evaluating schedule losses.8
ANALYSIS
Appellant sustained a left elbow tendinitis and forearm tendinitis in the performance of
duty and subsequently filed a claim for a schedule award for permanent impairment.
Dr. Blum, the Office medical adviser, determined that appellant had a one percent
impairment of her left upper extremity based on Dr. Sklar’s finding of a one percent impairment
for ratable pain pursuant to section 18.3dC, at page 573 of the A.M.A., Guides. He noted that
appellant had full range of motion in the left upper extremity with no sensory deficits but had
generalized weakness secondary to pain. Dr. Blum added that, accordingly, Dr. Sklar
recommended against using loss of strength in computing appellant’s impairment rating because
decreased strength cannot be used in the fact of, among other things, painful conditions. The
A.M.A., Guides state under the above subsection, titled How to Rate Pain-Related Impairment,
at page 573:
“If the individual appears to have pain-related impairment that has increased the
burden of his or her condition slightly, the examiner may increase the percentage
... by up to three percent.
Employing the above formula, which is also depicted in charts at Figure 18-1, Dr. Sklar found
that appellant had a one percent upper extremity impairment based on pain. Dr. Blum adopted
Dr. Sklar’s findings in a November 7, 2005 impairment evaluation. The Board finds that
appellant has a one percent impairment based on pain based on the A.M.A., Guides.
The Board finds that there is no other medical evidence of record, based upon a correct
application of the A.M.A., Guides, to establish that appellant has more than a one percent
permanent impairment of the left upper extremity for which she received a schedule award.
Accordingly, the Board finds that appellant has no more than a one percent permanent
impairment of the left upper extremity.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

8

20 C.F.R. § 10.404.

3

On appeal, appellant alleged that she has greater than a one percent permanent
impairment of the left upper extremity. However, the evidence does not support a greater
impairment. The Board notes that this does not preclude appellant from submitting relevant
medical evidence to the Office in support of any request for an additional schedule award.
CONCLUSION
The Board finds that appellant has no more than a one percent permanent impairment to
her left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 12, 2006 is affirmed.
Issued: January 17, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marcola, OR, Employer
__________________________________________

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

Docket No. 19-0853
Issued: November 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 14, 2019 appellant filed a timely appeal from a January 29, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish lumbar conditions
causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the January 29, 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.

FACTUAL HISTORY
On August 29, 2018 appellant, then a 29-year-old part-time flexible (PTF) sales, services,
and distribution associate, filed an occupational disease claim (Form CA-2) for a lower back
condition that she allegedly developed while in the performance of duty. She attributed her lower
back complaints to constant bending, lifting packages over 50 pounds, lifting heavy trays of mail
and bags of flats, and other unspecified repeated daily tasks. Appellant also alleged that, due to
staff shortages, she repeatedly worked more than seven hours without a lunch break. She indicated
that she first became aware of her condition in December 2016, and first realized it was caused or
aggravated by factors of her federal employment on August 4, 2018.
In a report dated August 22, 2018, Dr. Juliette Asuncion, an osteopath Board-certified in
family practice, noted that appellant’s severe lower back pain began two years prior and had
become worse subsequent to an acute injury at work when she was lifting heavy boxes. On
examination, she observed decreased range of motion and spasm of the lumbar back. Dr. Asuncion
diagnosed chronic bilateral low back pain with right-sided sciatica.
In a narrative statement dated August 29, 2018, appellant indicated that her back pain had
started two years prior while working at another location for the employing establishment. She
transferred to her current duty station and her back pain subsided, as it was a smaller office with a
lighter workload. However, recently appellant had noticed that her back pain was constant and
severe at all times.
On August 31, 2018 Dr. Asuncion treated appellant for complaints of abdominal pain. Her
diagnoses included chronic bilateral low back pain with right-sided sciatica which she noted were
due to a work injury. Appellant also provided a September 5, 2018 workers’ compensation form
report, which included a diagnostic code (ICD-10-CM) for lumbago with sciatica, right side.
Dr. Asuncion indicated that appellant was authorized to perform modified work effective August
31, 2018.
In a development letter dated September 13, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the factual and medical
evidence necessary to establish her claim and also provided a questionnaire for completion.
OWCP afforded appellant 30 days to submit additional evidence and to respond to its inquiries.
On September 21, 2018 appellant responded to OWCP’s questionnaire. She stated that she
considered her claim occupational in nature, as it occurred over time, but that she would list it as
a traumatic injury as well, which occurred on August 4, 2018 at the employing establishment.
Appellant noted that she worked seven and a half hours on that day with a 10-minute break,
constantly bending and lifting flats and parcels, and that the location was short staffed. She stated
that delivery point sequence (DPS) trays had caused the initial injury, but after that day, her back
pain had become much worse.
In a September 27, 2018 letter, appellant’s current postmaster noted that she had reviewed
her September 21, 2018 statement and concurred with appellant’s statements regarding the volume
of mail and lack of staffing. As far as appellant’s current work location, the postmaster noted that
she had worked safely under her supervision and had no issues with her back while working there.

2

In a report dated October 9, 2018, Dr. Charles L. Pederson, Board-certified in occupational
medicine, examined appellant for complaints of low back pain. He noted that appellant had an
acute worsening of her chronic discomfort after lifting heavy packages on August 4, 2018, but that
there was no specific event immediately followed by increased pain. Appellant stated that she had
no issues with her back. On examination, Dr. Pederson observed moderate tenderness to palpation
over the lumbar paraspinals, pain with maximum flexion, and mild pain with extension. He
diagnosed lumbar strain. Dr. Pederson noted that appellant’s work activities included repetitive
heavy lifting, which was a risk factor for developing low back pain and may have contributed to
her current symptoms and need for treatment.
By decision dated October 29, 2018, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish a medical 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.
OWCP subsequently received an October 12, 2018 x-ray report that indicated a mild loss
of disc space at L4-5 and possible congenital spinal stenosis with shortened anteroposterior
dimension of the pedicle, most notable at L5-S1 with slight retrolisthesis of L5 upon S1, with at
least mild loss of disc space height and facet spurring at this level.
In a November 14, 2018 follow-up report, Dr. Pederson reviewed appellant’s recent
lumbar x-rays. He noted that it demonstrated reduced spinal diameter consistent with possible
spinal stenosis and slight retrolisthesis of L5 on S1. Appellant’s low back symptoms were
unchanged, consisting of persistent low back discomfort with intermittent parasthesias involving
the bilateral lower extremities. Dr. Pederson diagnosed strain of the lumbar region. He opined
that without a specific work-related injury and x-ray findings of possible congenital spinal stenosis,
it would be difficult to establish work as a major cause of her chronic low back pain. Dr. Pederson
advised that appellant could return to work without restrictions.
OWCP also received physical therapy treatment notes dated October 23 through
November 20, 2018.
On January 22, 2019 appellant requested reconsideration of the October 29, 2018 decision
and submitted additional medical evidence.
In a report dated January 15, 2019, Dr. Pederson followed up with appellant to review the
results of a magnetic resonance imaging (MRI) scan of the lumbar spine taken on
December 27, 2018. He noted that it demonstrated L4-5 disc protrusion with an extruded fragment
compromising the right lateral recess. Dr. Pederson stated that appellant was scheduled for surgery
on January 17, 2019, and that subsequent to her last visit, she developed more specific right leg
pain and parasthesias. He noted that there was no evidence of congenital stenosis or other
significant preexisting conditions on the MRI scan. Dr. Pederson reviewed duties of her federal
employment, including unloading pallets with packages weighing up to 70 pounds every morning
for approximately one hour, and unloading hampers full of packages for two hours, which required
her to bend over at the waist. He stated that there were no other significant risk factors more likely
to have caused her disc herniation. Dr. Pederson opined that appellant’s work activities were the
cause of her L4-5 disc herniation and need for treatment.

3

By decision dated January 29, 2019, OWCP modified its decision of October 29, 2018 to
find that appellant had established a diagnosis of back strain, but also found that she had not
submitted sufficient evidence to establish causal relationship between the accepted employment
factors and the diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale that explains the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).10

3

Supra note 1.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

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

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

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

9

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

10

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

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish lumbar
conditions causally related to the accepted factors of her federal employment.
Dr. Pederson’s report dated January 15, 2019 provided diagnoses and medical opinion as
to the cause of appellant’s conditions, but failed to provide a detailed explanation on causal
relationship.11 While he identified specific employment factors alleged by appellant, he did not
provide a pathophysiological explanation as to how those activities either caused or contributed to
appellant’s diagnosed conditions.12 A medical opinion must provide an explanation of how the
specific employment factors physiologically caused or aggravated the diagnosed conditions.13
Without medical reasoning explaining how the accepted employment activities caused or
contributed to the diagnosed conditions, Dr. Pederson’s report of January 15, 2019 is insufficient
to establish appellant’s claim.14
Moreover, while Dr. Pederson opined in his report of January 15, 2019 that appellant’s
medical conditions were the cause of her L4-5 disc herniation and need for treatment, he noted
that there were no other significant risk factors more likely to have caused her disc herniation. The
Board has held that neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.15
In a report dated October 9, 2018, Dr. Pederson diagnosed lumbar strain and noted that
appellant’s work activities included repetitive heavy lifting, which was a risk factor for developing
low back pain and may have contributed to her current symptoms and need for treatment. On
November 14, 2018 Dr. Pederson opined that without a specific work-related injury and x-ray
findings of possible congenital spinal stenosis, it would be difficult to establish work as a major
cause of her chronic low back pain. The Board finds that Dr. Pederson’s explanation that repetitive
heavy lifting “may have contributed” to her diagnosed condition is speculative and equivocal in
nature and, therefore, of diminished probative value to establish causal relationship.16
In reports dated August 22, 31, and September 5, 2018, Dr. Asuncion diagnosed chronic
bilateral low back pain with right-sided sciatica. However, she did not offer an explanation for

11

See R.G., Docket No. 19-0233 (issued July 16, 2019).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
13

M.W., Docket No. 18-1624 (issued April 3, 2019); B.H., Docket No. 18-1219 (issued January 25, 2019).

14

M.W., id.; R.T., Docket No. 17-2019 (issued August 24, 2018).

15

See J.L., Docket No. 18-1804 (issued April 12, 2019).

16

See D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

5

her opinion that appellant’s lumbar symptoms were due to a work injury. Absent medical
reasoning, Dr. Asuncion’s opinion is insufficient to establish causal relationship.17
The record contains an x-ray of the lumbar spine dated October 12, 2018. The Board has
held that diagnostic reports that do not offer an opinion regarding the cause of an employee’s
condition lack probative value on the issue of causal relationship.18
Appellant also submitted notes from physical therapists dated October 23 through
November 20, 2018. Certain healthcare providers such as physical therapists, however, are not
considered “physician[s]” as defined under FECA.19 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.20
As appellant has not submitted rationalized medical evidence to establish lumbar
conditions causally related to the accepted employment factors, the Board finds that she has not
met her burden of proof to establish her 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 her burden of proof to establish lumbar
conditions causally related to the accepted factors of her federal employment.

17

R.T., supra note 14.

18

See K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019); J.M.,
Docket No. 17-1688 (issued December 13, 2018).
19

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

20

J.T., Docket No. 18-0664 (issued August 12, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57
ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, MI, Employer
__________________________________________

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

Docket No. 09-431
Issued: August 26, 2009

Case Submitted on the Record

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

JURISDICTION
On December 1, 2008 appellant, through counsel, filed a timely appeal from a
January 23, 2008 decision of the Office of Workers’ Compensation Programs and an October 6,
2008 decision of an Office hearing representative, denying her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that she sustained an injury in the performance
of duty causally related to factors of her federal employment.
FACTUAL HISTORY
On May 27, 2006 appellant, then a 40-year-old rural carrier, filed an occupational disease
claim alleging that she sustained upper and lower back pain and a herniated disc from bending,
lifting and sitting for extended periods of time during her federal employment. She contended
that her back pain first began in February 2006, radiating down her leg leading her to seek
emergency medical treatment on April 14, 2006. Appellant described her employment duties as

including repetitive lifting tubs of papers, magazines and catalogs and mail trays, sorting and
casing mail, lifting parcels up to 70 pounds, pushing tubs of mail outside and loading them into
her vehicle, opening mailboxes and placing mail in slots, repetitive bending to pick handfuls of
mail off the ground, walking parcels to houses, picking up parcels as requested by customers for
mailing and loading them into the vehicle and unloading undelivered parcels, empty mail trays
and tubs at the end of the route.
On June 21, 2006 the Office notified appellant of the deficiencies in her claim and
requested that she provide additional information.
By decision dated September 7, 2006, the Office denied the claim on the grounds that the
medical evidence did not establish that appellant’s back condition resulted from the accepted
employment factors.
On October 2, 2006 appellant, through her representative, requested a telephonic hearing
before an Office hearing representative.
In a November 17, 2006 medical report, Dr. Cheryl Strzoda, Board-certified in family
medicine, diagnosed C6 and S1 radiculopathy, cervical and foraminal stenosis, paresthesias
bilaterally of the lower extremities and chronic low back and neck pain. She described
appellant’s job duties, including sitting in a mail truck for long intervals, lifting up to 80 pounds,
excessive movements of the neck and turning and reaching to deliver mail. Dr. Strzoda opined
that her employment likely caused and exacerbated her conditions. She stated that appellant’s
sitting for long periods of time in the mail vehicle prevented stretching of her lumbar
musculature causing undue stress on the lumbar vertebrae leading to disc herniation and
compression on the S1 nerve root. Dr. Strzoda opined that her cervical degeneration was caused
by long-term stress on her lumbar spine from more than 15 years of working as a mail carrier, as
well as the repetitive activities required while delivering mail.
By decision dated December 7, 2006, an Office hearing representative remanded the case
for further development of the medical evidence. She noted that Dr. Strzoda was not a specialist
in a relevant field and that her report was not fully accurate as to appellant’s employment factors.
On January 24, 2007 the Office referred appellant, together with a statement of accepted
facts, to Dr. Bruce D. Abrams, a Board-certified orthopedic surgeon, for a second opinion
evaluation.
In a January 24, 2007 medical report, Dr. Abrams discussed appellant’s medical and
occupational history and reviewed several diagnostic reports. A physical examination revealed a
normal range of motion in the lumbar and cervical regions with no evidence of atrophy or reflex,
sensory or motor deficits. A magnetic resonance imaging (MRI) scan revealed a large herniated
disc in the lumbar spine at L5-S1 on the right and degenerative changes in the cervical spine.
Dr. Abrams opined that appellant’s condition was not related to her employment and that she
could return to her normal activities but should maintain good body mechanics.
In a medical report dated February 19, 2007, Dr. Strzoda disagreed with Dr. Abrams.
She contended that Dr. Abrams did not provide an explanation to support his findings and opined
that if appellant returned to her position her conditions would worsen.
2

By decision dated April 3, 2007, the Office denied appellant’s claim on the grounds that
Dr. Abrams’ report carried the weight of the medical evidence. It found that Dr. Abrams was a
specialist in the relevant field of orthopedic injuries and his report was based on a complete,
accurate and consistent history.
On April 16, 2007 appellant requested an oral hearing before an Office hearing
representative.
In an August 17, 2007 medical report, Dr. Allan G. Clague, a neurologist, opined that, as
a direct result of appellant’s employment duties, she developed overuse syndrome of the upper
extremities, posterior thoracic area and neck regions, chronic neurogenic low back pain
syndrome with an S1 radiculopathy on the right side secondary to a herniated invertebral disc at
the L5-S1 level, cervical and lumbosacral osteoarthritis and degenerative disc disease. He
opined that the repetitive use of her upper extremities during her employment caused the overuse
syndrome and also affected the neck muscles. Dr. Clague attributed appellant’s chronic
neurogenic low back pain to repetitive bending and twisting and the angle of her back while
sitting as a driver. These movements caused weakness in the lumbar spine and breaking and
stretching of the outer membranes of the intervertebral disc, which lead to a rupture and resulting
injury to the vertebral column. The forward flexion on the lumbosacral spine from sitting in a
car pushed the vertebral disc posteriorly which, combined with the repetitive bending, caused a
gradual tearing of the annulus fibrosis with ultimate rupture and extrusion of the intervertebral
disc of the nucleus pulposis. This also resulted in pressure on the S1 nerve root on the right side.
Dr. Clague opined that appellant’s constant twisting, rotating and flexion and extension of the
lumbar spine caused changes to the facet joints of the vertebral bodies. He advised that she was
totally and permanently disabled and was to avoid any repetitive use of her upper extremities.
By decision dated September 27, 2007, an Office hearing representative found a conflict
of medical opinion arose between Drs. Strzoda, Clague and Abrams as to whether appellant’s
cervical or lumbosacral spine conditions were causally related to the accepted factors of
employment. She directed the Office to refer appellant to an impartial medical examiner.
On December 21, 2007 the Office referred appellant to Dr. Emmanuel N. Obianwu, a
Board-certified orthopedic surgeon, to resolve the conflict of medical opinion regarding whether
her back and neck conditions were related to her employment factors.
In a December 21, 2007 medical report, Dr. Obianwu reviewed appellant’s medical and
occupational history. Physical examination revealed full flexion of the cervical spine with full
extension, negative Spurling’s maneuver and 75 percent normal lateral rotation of the cervical
spine to either side. Tightness was not present in the muscles in the neck and there was no
tenderness over the anterior aspect of the cervical spine. However, the passive lateral flexion of
the cervical spine caused some discomfort at the base of the neck. Physical examination did not
reveal sensory or reflex changes in the lower extremities and no paraspinous muscle spasms were
noted in the lumbar spine. Deep palpation in the midline of the lumbar spine did not induce any
discomfort and no tenderness was elicited in the entire lumbar spine. Dr. Obianwu reviewed
MRI scan images of the lumbar and cervical spine dated May 2006 and diagnosed cervical
spondylosis and large right paracentral disc herniation with possible impingement on right S1
nerve root. There was no clinical evidence of cervical or lumbar radiculopathy. Dr. Obianwu

3

opined that the changes in appellant’s cervical and lumbar spines were age related and there was
no evidence to suggest that her work activities played any significant role in the development of
these changes. He explained that similar changes were seen in a significant portion of the
general population and that such neck and back pain can be secondary to anxiety. The fact that
appellant’s symptoms were controlled by antidepressants further suggested that to some degree
anxiety and other psychosocial factors were significant in the persistence of her back pain.
Moreover, the multilevel involvement present in her case suggested a process that was ongoing
over an extended period of time. Dr. Obianwu disagreed with Dr. Clague’s opinion that the
repetitive stress syndrome induced appellant’s back problems, stating that the human body was
not inert but was a dynamic and living tissue that often responded in a positive manner to
repetitive physical stress. He maintained that terms like overuse or repetitive stress may explain
symptoms but did not bear a direct causation to disease. Dr. Obianwu found that there was no
association between appellant’s work activities and her neck and lumbar spine conditions. Based
on her medical history, the conditions had been ongoing for some time, dating back to as early as
2004 and her presentation was generally reflective of the aging process and not of a
post-traumatic pathology. Dr. Obianwu pointed out that appellant did not recount “one single
episode of a significant trauma … as being responsible for the onset of her symptoms.” He
acknowledged the presence of changes in the MRI scan but stated that he did not find
corroborating clinical findings. Dr. Obianwu concluded that based on “the rather ordinary
clinical examination” appellant could return to work without restrictions. He noted that, while
her employment duties would suggest certain onerous tasks, taken together, they did “not appear
to constitute significant risk factors in themselves in the development of the degenerative
changes” of the spine.
By decision dated January 23, 2008, the Office denied the claim on the grounds that
Dr. Obianwu resolved the conflict of medical evidence. Dr. Obianwu found that appellant’s
cervical and lumbosacral spine conditions were not related to her federal employment. Thus, the
weight of the medical evidence did not support the claim.
On February 8, 2008 appellant requested an oral hearing before an Office hearing
representative. Appellant’s representative argued that her treating and examining physicians
supported her claim of work-related disability and that her opinions of Drs. Abrams and
Obianwu were not supported by medical rationale.
An oral hearing took place on July 18, 2008. Appellant testified that Dr. Obianwu only
examined her for approximately 10 minutes and that Dr. Clague’s examination was more
thorough. In a July 8, 2005 medical note, Dr. Strzoda noted that appellant’s maximum weight
requirement was 70 pounds. She reiterated that appellant’s employment contributed to her
current medical condition.
By decision dated October 6, 2008, an Office hearing representative affirmed the
January 23, 2008 decision, finding that the weight of the medical evidence was represented by
Dr. Obianwu.

4

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,2
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.3 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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
Section 8123(a) of the Act provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.7 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
properly referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on proper factual and
medical background, must be given special weight.8

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

G.T., see supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
7

5 U.S.C. § 8123(a). See also Raymond A. Fondots, 53 ECAB 637 (2002).

8

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

5

ANALYSIS
The issue is whether appellant established that she sustained an injury causally related to
her accepted employment factors. The Office accepted that her duties required repetitive
movements while sorting, casing and delivering mail and sitting in a vehicle for an extended
period of time. The Board finds that appellant has not met her burden of proof.
In a November 17, 2006 medical report, Dr. Strzoda, Board-certified in family medicine,
opined that appellant’s work included sitting in a mail truck for long intervals, lifting up to 80
pounds and excessive movements of the neck, caused her back and neck conditions. An Office
hearing representative found this report sufficient to require further development of the claim.
On remand, the Office referred appellant to Dr. Abrams, a Board-certified orthopedic surgeon,
who concluded that her lumbar and cervical conditions were not related to her employment.
Dr. Strzoda disagreed with the opinion of Dr. Abrams.
Appellant subsequently submitted a medical report from Dr. Clague, who opined that she
sustained overuse syndrome of the upper extremities due to repetitive movements required by
her employment. Dr. Clague attributed her musculoskeletal pain and cervical conditions to a
progression of the overuse syndrome over a period of time. He stated that appellant’s repetitive
bending and twisting, combined with the flexion of her spine while seated as a driver, caused
additional strain to the lumbar and cervical regions resulting in her degenerative disease.
On September 27, 2007 an Office hearing representative properly found a conflict of
medical opinion arose between Drs. Strzoda, Clague and Abrams regarding whether appellant’s
back and neck conditions were causally related to her employment.9 The Office properly
referred appellant to Dr. Obianwu, a Board-certified orthopedic surgeon, to resolve the conflict
in medical evidence, pursuant to 5 U.S.C. § 8123(a).
In a December 21, 2007 medical report, Dr. Obianwu detailed a full examination and
accurately described appellant’s medical and employment history. He reviewed the results of
diagnostic tests and opined that the changes in her cervical and lumbar spines were age related
and noted that a significant part of the population had similar changes. Dr. Obianwu reported the
fact that appellant’s symptoms were controlled by antidepressants suggested that anxiety and
psychosocial factors were factors in her back pain. He opined that the multilevel involvement
present in her spine suggested degeneration over a period of time and there was no evidence to
suggest the condition was related to her employment. Dr. Obianwu addressed Dr. Clague’s
diagnosis of overuse syndrome, stating that, while repetitive stress may explain certain
symptoms, it did not bear a direct causation to the underlying disease. He pointed out that
appellant’s symptoms dated back to 2004 and were reflective of the aging process and not a posttraumatic pathology. Moreover Dr. Obianwu stated that appellant’s work duties did not
contribute to the degenerative changes. He concluded that her clinical examination was rather
ordinary and that her conditions were related to the aging process and not to her federal
employment.

9

See Bryan O. Crane, 56 ECAB 713 (2005).

6

The Board finds that Dr. Obianwu’s medical report constitutes the special weight of the
medical opinion. Dr. Obianwu is a specialist in the field of orthopedic surgery. His opinion is
well-rationalized and based on a full medical examination and a complete and accurate factual
and medical history.10 His opinion, finding that appellant’s back and neck conditions are
unrelated to her employment factors, is afforded the special weight of an impartial medical
examiner.11 The Board finds that appellant has not met her burden of proof in establishing that
she sustained an injury causally related to her federal employment.
CONCLUSION
The Board finds that appellant did not establish that she sustained an injury in the
performance of duty causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 6 and January 23, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 26, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10

See B.K., 60 ECAB ___ (Docket No. 08-2002, issued June 16, 2009).

11

See id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 09-1346
Issued: July 19, 2010

Case Submitted on the Record

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

JURISDICTION
On April 30, 2009 appellant filed a timely appeal from a February 13, 2009 merit
decision of the Office of Workers’ Compensation Programs concerning her schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant has established that she has more than nine percent
impairment of her left upper extremity for which she received a schedule award.
FACTUAL HISTORY
On January 2, 2002 appellant, then a 52-year-old clerk, injured her left wrist when she
was struck by a tow motor and knocked down. The Office accepted the claim for scaphoid
fracture of the left wrist. Appellant stopped work on February 5, 2002. She returned to limited
duty for four hours a day on October 7, 2002 and the Office paid periods of wage-loss
compensation. Appellant returned to full-duty work.

On September 29, 2003 appellant filed a schedule award claim. In a February 4, 2003
report, Dr. David Weiss, an osteopath, specializing in orthopedic medicine, found that appellant
had 17 percent left upper extremity impairment pursuant to the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
This was comprised of 4 percent impairment for lost range of motion for left wrist ulnar
deviation, 10 percent for left grip strength deficit and 3 percent pain-related impairment.
On April 7, 2005 an Office medial adviser reviewed the medical record and rated nine
percent impairment of the left upper extremity. This was comprised of two percent impairment
for loss of flexion and seven percent impairment for constrictive tenosynovitis of the thumb. The
Office medical adviser stated the findings from appellant’s physician from April 2003 were used
as opposed to those of Dr. Weiss because the treating physician’s report “is the last one in the
file and is more probative than just one exam[ination] physician’s report.”1
By decision dated July 10, 2007, the Office granted appellant a schedule award for nine
percent impairment to the left arm. The award ran for the period April 18 to October 31, 2003,
or 28.08 weeks of compensation.
On July 19, 2007 appellant’s attorney requested a hearing. By decision dated October 22,
2007, an Office hearing representative found the case not in posture for a hearing and remanded
it for further medical development. The hearing representative noted the Office medical adviser
did not consider Dr. Weiss’ report and the report relied upon contained a different assessment of
appellant’s impairment. As such, the varying assessments of appellant’s permanent impairment
necessitated referral to a second opinion evaluation.
In a December 11, 2007 report, Dr. Zohar Stark, a Board-certified orthopedic surgeon
and Office referral physician, reviewed the medical reports of record, a statement of accepted
facts and set forth findings on examination. He found no swelling, no local tenderness on
palpation and no atrophy of the hand musculature. Range of motion of the left wrist was not
restricted with full dorsiflexion, volar flexion, radial deviation and ulnar deviation. No weakness
in grip or in pinch was noted, Tinel’s and Phalen’s tests were negative and Finkelstein’s test was
positive. Dr. Stark opined that appellant reached maximum medical improvement and there was
no permanent impairment related to the January 2, 2002 work injury.
On January 18, 2008 an Office medical adviser reviewed the medical reports of record
and found that appellant reached maximum medical improvement on April 22, 2003. He advised
appellant’s treating physician, Dr. Monaghan, found an essentially normal examination in late
2002, which was comparable to Dr. Stark’s recent examination. The Office medical adviser
recommended that Dr. Stark’s opinion that appellant had no permanent impairment from her
work injury should be accepted.
In a February 8, 2008 decision, the Office denied appellant’s claim for an increased
schedule award.
1

Reports from treating physician, Dr. Bruce A. Monaghan, an orthopedic surgeon, from October 10, 2002 and
April 22, 2003, advised that appellant lacked five degrees of left wrist flexion. The April 22, 2003 report noted
evidence of de Quervain’s stenosing synovitis and a ganglion in the tendon sheath of the first dorsal compartment.

2

On February 20, 2008 appellant’s attorney requested a hearing. On April 24, 2008 a
hearing representative set aside the February 8, 2008 decision finding a conflict in medical
opinion between Dr. Weiss and Dr. Stark necessitating referral to an impartial medical examiner.
The Office referred appellant to Dr. Howard Zeidman, a Board-certified orthopedic
surgeon, for an impartial medical evaluation. Dr. Zeidman was provided with a statement of
accepted facts, the medical record and a list of questions.
In a June 19, 2008 report, Dr. Zeidman noted the history of injury, reviewed the medical
evidence and listed examination findings. He found no impairment that could be specifically
related to the January 2, 2002 work injury as the fracture had healed and there was no specific
problem related to the fracture. Dr. Zeidman advised that de Quervain’s constrictive tendinitis
was present and had been present for several months since the injury and was related to the work
injury as a post-traumatic event. He advised there was some impairment because of limitation of
motion with regard to this at the interphalangeal (IP) joint of the thumb. Under Figure 16-12,
page 456 of the A.M.A., Guides, he found 55 degrees of flexion equated to two percent
impairment of the thumb which was equivalent to one percent impairment of the hand under
Table 16-1, page 438. Dr. Zeidman noted that, while carpometacarpal arthritis was noted on
x-ray, this was not included in his impairment evaluation as it did not appear to be related to the
work injury. He also opined that appellant reached maximum medical improvement.
In an August 12, 2008 report, an Office medical adviser concurred with Dr. Zeidman’s
opinion. He found two percent left thumb digit impairment was consistent with Dr. Zeidman’s
rating calculations and the development of chronic de Quervain’s tenosynovitis that developed as
a result of the accepted scaphoid fracture. The Office medical adviser further opined that the
date of maximum medical improvement was June 19, 2008.
By decision dated August 22, 2008, the Office denied an additional schedule award.
On August 25, 2008 appellant’s attorney requested an oral hearing, which was held by
video conference on December 16, 2008. He questioned the manner in which the Office selected
the impartial medical evaluator and argued that Dr. Zeidman’s report did not constitute the
weight of the medical evidence.
In a February 13, 2009 decision, an Office hearing representative affirmed the August 22,
2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
2

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

3

20 C.F.R. § 10.404.

3

percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.6 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.7 In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.8
It is well established that Office procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those
certified by the American Medical Association and American Osteopathic Association.9 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, the Office has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the
appearance that the selected physician’s opinion was biased or prejudiced.10 These procedures
contemplate selection on a strict rotating basis in order to negate any appearance that preferential
treatment exists between a physician and the Office.11 Moreover, the reasons for the selection
made must be documented in the case record.12

4

5 U.S.C. § 8107(c)(19).

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

Gloria J. Godfrey, 52 ECAB 486 (2001).

9

See LaDonna M. Andrews, 55 ECAB 301 (2004).

10

See Raymond J. Brown, 52 ECAB 192 (2001).

11

Id. See also Miguel A. Muniz, 54 ECAB 217 (2002).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)
(May 2003). A claimant may ask to participate in the selection of the impartial medical specialist under certain
conditions; however, no request was made in this case.

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It is also well established that, in determining the amount of a schedule award for a given
member of the body that sustained an employment-related permanent impairment, preexisting
impairments of that scheduled member of the body are to be included.13
ANALYSIS
The Office found a conflict in medical opinion between Dr. Weiss, appellant’s treating
physician, and Dr. Stark, an Office referral physician, with regard to appellant’s permanent
impairment for schedule award purposes. Accordingly, it referred appellant to Dr. Zeidman for
an impartial medical examination.14
On appeal, counsel contends that the Office improperly selected Dr. Zeidman as the
impartial medical specialist and his report is insufficient to constitute the weight of the medical
opinion evidence. Counsel contended that Dr. Zeidman was not appropriately selected from the
Physician’s Desk Reference as the Office bypassed three physicians in the directory system prior
to selecting Dr. Zeidman. The record reflects that on May 27, 2008 the Office bypassed three
physicians in the directory system for the reason that they were busy and unable to provide an
appointment in a reasonable amount of time. The evidence establishes that Dr. Zeidman was the
next physician on the rotation list after Dr. Brian Zell, the last physician bypassed. The evidence
of record does not establish error in the selection of Dr. Zeidman as the impartial specialist.
Appellant has not submitted evidence that the system for selecting the impartial medical
specialists was compromised in this case.15
Counsel further contends that Dr. Zeidman’s report does not carry the weight of the
medical opinion evidence. Dr. Zeidman indicated that appellant did not sustain any permanent
impairment due to the accepted employment-related fracture, but did, as a result of posttraumatic tendinitis, experience loss of motion at the IP joint of the thumb. Under the A.M.A.,
Guides, appellant sustained a two percent permanent impairment of the left thumb or one percent
permanent impairment of the left hand. Dr. Zeidman advised that carpometacarpal arthritis was
not included in his rating determination as it did not appear to be related to the work injury. The
Board notes that in determining the degree of impairment for a member of the body that
sustained an employment-related injury, preexisting impairments are to be included in the
evaluation of the permanent impairment.16 While counsel argues the carpometacarpal arthritis is
a preexisting condition, the medical evidence is not clear as to whether such arthritis was a
13

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3.b (June 1993). This portion of Office procedure provides that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
14

See Talmadge Miller, 47 ECAB 673 (1996).

15

Compare D.A., 61 ECAB ___ (Docket No. 09-936, issued January 13, 2010) (the evidence supported
appellant’s contentions that the Office did not follow its procedures in selecting an impartial specialist where there
were no notes in the Physician’s Directory System explaining the referral to the designated physician and where it
appeared that another physician was actually selected to perform the examination).
16

See D.F., 59 ECAB ___ (Docket No. 07-1607, issued December 21, 2007); Carol A. Smart, 57 ECAB
340 (2006).

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preexisting or subsequently acquired condition.17 The statement of accepted facts and questions
to be addressed did not inform the impartial medical specialist regarding any preexisting
impairment.
The case is not in posture for decision on this aspect of the claim. When the Office
obtains an opinion from an impartial medical specialist for the purpose of resolving a conflict in
the medical evidence and the specialist’s opinion requires clarification or elaboration, the Office
must secure a supplemental report from the specialist to correct the defect in his original report.18
Dr. Zeidman should be requested to provide a record review of the medical evidence and further
opinion on whether appellant’s arthritis was a preexisting condition.
The Board will set aside the Office’s August 22, 2008 and February 13, 2009 decisions
and remand the case for such further development as may be required, followed by a final
decision on appellant’s claim for a schedule award for the left upper extremity.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant has
more than nine percent impairment of the left arm.

17

Dr. Zeidman noted that the x-ray report from January 9, 2002 noted some calcifications in the first metacarpal
articulation presumably old.
18

L.R. (E.R.), 58 ECAB 369 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the February 13, 2009 and August 22, 2008
decisions of the Office of Workers’ Compensation Programs be set aside. The case is remanded
for further action consistent with this opinion.
Issued: July 19, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.I., 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. 16-0759
Issued: June 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a January 25, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish binaural (both
ears) hearing loss causally related to her federal employment.
On appeal appellant contends that she sustained a work-related hearing loss as an OWCP
referral physician did not provide rationale to support her opinion that she did not sustain hearing
loss related to her exposure to loud noise.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 28, 2015 appellant, then a 56-year-old retired woodworker, filed an
occupational disease claim (Form CA-2) alleging that on June 1, 2015 she first became aware of
her bilateral hearing loss and realized that her condition was caused or aggravated by her federal
employment.
By letter dated November 3, 2015, OWCP notified appellant of the deficiencies of her
claim and afforded her 30 days to submit medical and factual evidence. It requested that the
employing establishment respond to her allegations and provide a copy of all medical
examinations pertaining to her hearing or ear problems, including any preemployment
examinations and audiograms.
OWCP received employment records from the employing establishment. Appellant
worked in various positions with the employing establishment since September 3, 1985. She
worked as a woodworker for several employing establishment agencies since July 23, 2006. A
description of appellant’s woodworker position noted her duties, responsibilities, and exposure to
high noise levels. A notification of personnel action (SF 50-B) dated October 30, 2015 indicated
that she had retired effective that date. Audiograms performed by the employing establishment
as part of a hearing conservation program dated October 27, 1989 to April 30, 2015 were
submitted.
By letter dated November 25, 2015, the employing establishment controverted the claim
and noted that appellant worked five months as a woodworker at the employing establishment
from June 14 to October 30, 2015. It noted that she was no longer an employee. The employing
establishment stated that appellant was in a hearing conservation program from 1989 until her
retirement.
In an investigative memorandum dated November 10, 2015, the employing establishment
stated that appellant had general exposure to noise from September 3, 1985 to October 30, 2015.
On December 1, 2015 appellant provided her employment history, which indicated that
she was exposed to noise from 1981 to 1984 during her non-federal employment and from 1987
to 2015 while working at the employing establishment.
By letter dated December 28, 2015, OWCP informed appellant that a second opinion
evaluation was scheduled with Dr. Julie A. Gustafson, a Board-certified otolaryngologist, for
January 14, 2016 at 12:00 a.m.
In a January 14, 2016 medical report, Dr. Gustafson noted appellant’s complaint of
hearing loss without tinnitus, examined her, reviewed her medical records, and analyzed the
results of an audiogram performed on that date. She diagnosed appellant with sensorineural
hearing loss that was probably genetic. Dr. Gustafson noted that her configuration of hearing
loss was inconsistent with noise exposure. She found that it had “a cookie bite” type formation,
which was most consistent with a genetic or hereditary loss. Dr. Gustafson advised that genetic
and hereditary losses did not need to be associated with a clear family history of hearing loss.
She found no acceleration of high frequency hearing loss that would be normally seen with a

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noise-induced loss. Appellant had low and mid-frequency loss at the time she began work at the
employing establishment and it advanced slowly over time irrespective of the level of noise
exposure. Utilizing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Gustafson found that appellant had
no ratable hearing loss. Appellant also had no impairment due to tinnitus as she did not
complain about this condition. Dr. Gustafson recommended bilateral hearing aids for appellant’s
sensorineural hearing loss which had an unknown etiology, but again noted that it was probably
genetic. She opined that the workplace exposure as described in materials provided by appellant,
was not of sufficient intensity and duration to have caused or contributed to the hearing loss in
question. Dr. Gustafson noted that the workplace exposure did not add to her hearing loss from
other conditions. She concluded that appellant’s sensorineural hearing loss was not due to noise
exposure in her federal employment. Dr. Gustafson maintained that her opinion was supported
by the occupational audiometric record and configuration of appellant’s hearing loss.
In a January 25, 2016 decision, OWCP denied appellant’s hearing loss claim. It found
that Dr. Gustafson’s opinion constituted the weight of the evidence and established that she did
not have hearing loss due to her accepted employment-related noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that the injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) 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 a claimant. 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 medical certainty and must be supported by medical rationale explaining the

2

Gary J. Watling, 52 ECAB 357 (2001).

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nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
the belief that the condition was caused, precipitated or aggravated by his employment, is
sufficient to establish a causal relationship.4 The mere fact that a disease or condition manifests
itself or worsens during a period of employment5 or that work activities produce symptoms
revelatory of an underlying condition6 does not raise an inference of causal relation between the
condition and the employment factors.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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.8
ANALYSIS
The Board finds that appellant has not established that she sustained binaural hearing loss
causally related to her federal employment noise exposure.
Appellant submitted results from audiometric testing performed October 27, 1989 to
April 30, 2015 by audiologists were submitted as part of the hearing conservation program at
work, but the audiograms alone are insufficient to establish her hearing loss as causally related to
her federal employment as they do not comply with the requirements set forth by OWCP. These
tests were not prepared or certified as accurate by a physician as defined by FECA. None of the
audiograms were accompanied by a physician’s opinion addressing how appellant’s

3

Solomon Polen, 51 ECAB 341 (2000).

4

Robert G. Morris, 48 ECAB 238-39 (1996); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

5

William Nimitz, Jr., id.

6

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

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

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employment-related noise exposure caused or aggravated any hearing loss.9 OWCP is not
required to rely on this evidence as it does not constitute probative medical opinion evidence and
is insufficient to meet appellant’s burden of proof.10
Following the submission of evidence from appellant, OWCP referred appellant for an
audiological and otologic evaluation by Dr. Gustafson. In a January 14, 2016 report,
Dr. Gustafson examined appellant, reviewed her medical records, and analyzed the results of an
audiogram performed on that date. She diagnosed appellant with sensorineural hearing loss, but
found that her hearing loss was not related to noise exposure in her federal employment.
Dr. Gustafson explained that the workplace exposure, as described by appellant, was not of
sufficient intensity and duration to have caused or contributed to her diagnosed hearing loss. She
further explained that appellant’s hearing loss was genetic as she had “a cookie bite” type
formation, which was most consistent with a genetic or hereditary loss. Dr. Gustafson
maintained that her opinion on causal relationship was supported by the occupational
audiometric record and configuration of appellant’s hearing loss. She provided a thorough
examination and a reasoned opinion explaining how the findings on examination and testing
were not due to the noise in appellant’s federal employment.
There is no current medical evidence of record supporting that appellant’s hearing loss is
employment related. The Board finds that Dr. Gustafson’s report represents the weight of the
medical evidence.11 Appellant has failed to establish that her binaural hearing loss was due to
her federal employment.
On appeal appellant contends that she sustained a work-related hearing loss as
Dr. Gustafson’s report did not provide rationale to support her opinion that she did not sustain
hearing loss related to her exposure to loud noise. As noted above, it is appellant’s burden to
submit medical evidence to support the issue of causal relationship.12 As she has not submitted
any medical evidence definitively establishing that her hearing loss is due to factors of her
employment, she has not established her 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 her burden of proof to establish binaural (both
ears) hearing loss causally related to her federal employment.

9

See Leon Thomas, 52 ECAB 202 (2001) (an audiologist is not considered a “physician” under FECA).

10

Joshua A. Holmes, 42 ECAB 231, 236 (1990).

11

See John D. Jackson, 55 ECAB 465 (2004).

12

See supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the January 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-0410
Issued: April 4, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On January 5, 2016 appellant filed a timely appeal from a December 22, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was docketed
as No. 16-0410.
This case has previously been before the Board. By decision dated March 16, 2011, the
Board remanded the case for further development following an October 15, 2009 OWCP merit
decision which denied appellant’s claim, finding that she failed to establish that she sustained
any occupational noise exposure.1 The Board found that OWCP, in its October 15, 2009
decision, had initially requested that the employing establishment provide evidence regarding
appellant’s occupational noise duration or levels of exposure to hazardous noise during her
federal employment. The employing establishment failed to respond. The Board remanded the
case for OWCP to further request that the employing establishment submit evidence concerning
any occupational noise surveys and address the length and period of appellant’s noise exposure.
The findings and facts as set forth in the prior decision are hereby incorporated by reference.
On remand, by letter dated June 4, 2015, OWCP requested that the employing
establishment provide any evidence concerning occupational noise surveys and address the
length and period of appellant’s exposure.
1

Docket No. 10-940 (issued March 16, 2011).

By letter dated June 24, 2015, the employing establishment responded that the request
had been forwarded to the manager of the Cincinnati Processing Distribution Center, but that no
response had been received.
By letter dated October 19, 2015, OWCP again requested that the employing
establishment provide any evidence concerning occupational noise surveys and address the
length and period of appellant’s exposure.
In a November 12, 2015 response, the employing establishment reported that there was
no evidence that a noise survey had been ordered at appellant’s duty station.
By decision dated December 22, 2015, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish occupational noise exposure as alleged. It also noted that
appellant had failed to respond to its earlier development letter requesting information regarding
her employment history and nonoccupational exposure to noise.
Having reviewed the case record submitted by OWCP, the Board finds that this case is
not in posture for a decision. In its December 22, 2015 denial, OWCP found that appellant had
failed to establish fact of injury by demonstrating that a specific event, incident, or exposure
occurred at the time, place, and in the manner alleged because she had failed to provide a
statement describing her occupational noise exposure. However, the record reflects that
appellant had responded to OWCP’s May 28, 2009 development letter in a narrative statement
dated June 8, 2009. Following the Board’s March 16, 2011 decision remanding the October 15,
2009 OWCP decision, a June 1, 2011 memorandum to the file indicates that a June 8, 2009
statement from appellant for this occupational claim had been misfiled in another claimant’s file
in error. The statement was found and moved to the correct file in this claim, No. xxxxxx614.
In this June 8, 2009 narrative statement, appellant reported that she had been hired on
November 3, 1984 and worked in multiple jobs during her employment with the employing
establishment. She stated that in buildings A and B she was exposed to loud noise from
machines, which included small parcel and bundle sorters, flat sorter machines, automated flats
sorting machines, OCR machines, automated induction systems, industrial powered equipment,
tow motor operators, forklifts, pallet lifts, jitneys, rolling stock, all-purpose containers, gurneys,
hampers, house trucks, and flat tubs. Appellant stated that her exposure to employment-related
noise occurred on a daily basis. She had filed no prior claims for hearing or ear problems and
engaged in no hobbies which exposed her to loud noise. Appellant explained that her service
with the postal service spanned over 25 years where she was exposed to hazardous noise while
working in both buildings and continued to be exposed to this noise causing her problems with
her hearing loss. She further noted that she attempted to obtain copies of prior assignments from
the employing establishment, but was informed that they could not provide her that information
as it dated too far back.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim which was properly submitted to OWCP
prior to the time of issuance of its final decision be reviewed and addressed by OWCP.2 It
2

See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not
consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994)
(applying Couch where OWCP did not consider a medical report received on the date of its decision).

2

makes no difference that the claims examiner may not have been directly in possession of the
evidence. Indeed, Board precedent envisions evidence received by OWCP, but not yet
associated with the case record when the final decision is issued, must be provided merit review.3
In its final decision, OWCP made no reference to any evidence submitted by appellant and found
that she failed to establish that the occupational noise exposure occurred as alleged noting that
the employing establishment was unable to provide further evidence. It does not appear that
OWCP considered the June 8, 2009 narrative statement which was previously misfiled in a
different claim.4 As such, the Board cannot review such evidence for the first time on appeal.5
The Board finds that this case is not in posture for a decision. Consequently, the case
will be remanded for OWCP to fully consider appellant’s evidence which was properly
submitted prior to the December 22, 2015 decision. Following this and such other development
as deemed necessary, OWCP shall issue an appropriate merit decision.
IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this order.
Issued: April 4, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

Id.

4

The Board notes that the June 8, 2009 narrative statement consisted of three pages each of which contained the
claim No. xxxxxx614 clearly handwritten by appellant on the top of the document for proper filing of her claim.
5

20 C.F.R. § 501.2(c).

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