United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Lauderdale, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Joanne Wright, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1280
Issued: June 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On May 9, 2014 appellant, through her representative, filed a timely appeal from a
November 15, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that the May 7, 2009
wage-earning capacity decision should be modified.
On appeal, appellant’s representative questions whether the case file was reconstructed
properly and asserts that the statement of accepted facts provided to an OWCP referral physician
and to the impartial examiner failed to include all accepted conditions, that OWCP failed to
develop whether fibromyalgia was a consequential condition, and that in its November 15, 2013
decision OWCP misidentified a January 13, 2010 decision and did not address all contentions
raised in an August 23, 2013 petition for modification.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 10, 1998 appellant, then a 35-year-old mail carrier, was injured when a mail
box came out of a wall. OWCP accepted cervical and lumbar strains, aggravation of cervical and
lumbar degenerative disc disease, and adjustment reaction. Appellant thereafter received
intermittent compensation, stopped work in 2003, and did not return. She was placed on the
periodic compensation rolls.
In 2007 OWCP referred appellant to Dr. David M. Tobolowsky, a Board-certified
psychiatrist, for a second opinion evaluation. In a May 18, 2007 report, Dr. Tobolowsky
described the history of injury, her past medical and psychiatric history, and his review of the
statement of accepted facts and medical record. He performed mental status examination and
psychological testing. Dr. Tobolowsky diagnosed dysthymic disorder, compulsive traits, and
orthopedic injuries. He concluded that, from a psychiatric standpoint, appellant was not totally
disabled from performing the duties of a letter carrier or any other employment, noting that she
was attending school and that was far more cognitively challenging.
In a June 1, 2007 report, Anthony Fallon, Ph.D., an attending psychologist, diagnosed
depressive disorder from pain caused by lumbar sprain/strain. He advised that appellant could
return to work for eight hours a day but not at the employing establishment because she could
not physically perform the duties of the mail carrier position. Dr. Fallon also diagnosed
fibromyalgia, due to the employment injury.
OWCP referred appellant to vocational rehabilitation. In a September 14, 2007 report,
Gregory A. Price, a rehabilitation counselor, noted that appellant had completed a bachelor of
social work degree and that she had requested OWCP to authorize a plan for her to continue her
education and obtain a master’s of social work. OWCP did not approve the requested additional
training but found the constructed positions of caseworker, caseworker (child welfare),
caseworker (family), community worker, and social services aide as suitable. Job placement
efforts were conducted but appellant did not obtain employment.
In January 2008, OWCP referred appellant to Dr. Brad K. Cohen, a Board-certified
orthopedic surgeon, for a second opinion evaluation. Dr. Cohen was provided a set of questions
and a statement of accepted facts dated November 4, 1999, with addenda dated May 1, 2007 and
January 29, 2008. The statement of accepted facts identified the accepted conditions as cervical
and lumbar strains and noted that appellant also had degenerative disc disease. It further
identified the duties of the respective positions.
On February 21, 2008 Dr. Cohen reported appellant’s complaints of neck and low back
pain and that she stated that she had been diagnosed with fibromyalgia and myofascial pain
syndrome. He described prior neck and back injuries from automobile accidents in 1986
and 1987. Dr. Cohen noted his review of the medical record and provided physical examination
findings. He diagnosed chronic cervical strain with cervical degenerative disc disease and
chronic lumbar strain. In answer to specific OWCP questions, Dr. Cohen advised that the
diagnoses were related to appellant’s January 10, 1998 work injury, and that she had reached
maximum medical improvement. He opined that she could work eight hours a day. A March 20,
2008 functional capacity evaluation (FCE) reported that appellant had not demonstrated maximal

2

effort and exhibited equivocal pain focus. Dr. Cohen reviewed the FCE, noting that it
demonstrated symptom-magnification with multiple positive Waddell’s signs, pain behavior,
submaximal effort, and was of limited value in establishing work restrictions. He completed a
work capacity evaluation on March 25, 2008 advising that appellant could work eight hours with
restrictions to her physical activities including a 15-pound lifting restriction.
In a June 26, 2008 treatment note, Dr. Audie M. Rolnick, an attending Board-certified
orthopedist, diagnosed improved lumbar strain, and disc herniation at C5-6 and C5-7. He
advised that appellant could work six hours daily with limited bending and reaching. On
June 27, 2008 Dr. Fallon advised that the work-related condition of dysthymic disorder was still
present. He indicated that appellant should not return to work at the employing establishment
and should continue her schooling instead of starting a rehabilitative effort.
On August 14, 2008 Mr. Price updated wage information for the identified positions.
OWCP determined that a conflict in medical evidence had been created between
Dr. Rolnick and Dr. Cohen regarding appellant’s work restrictions and thus referred her to
Dr. Christopher A. Brown, Board-certified in orthopedic surgery, for an impartial evaluation.2 In
an October 9, 2008 report, Dr. Brown noted the history of injury and her complaint of lumbar
pain with repetitive bending, cervical pain, and pain, numbness, and tingling in all four
extremities. He reviewed the statement of accepted facts and medical record, including
diagnostic studies. Range of motion of the cervical spine demonstrated that appellant touched
her chin to chest, and laterally rotated and extended 10 degrees. Range of motion of the lumbar
spine demonstrated that she flexed forward 60 degrees and extended and laterally flexed 30
degrees. Perception of light touch and pinprick was normal in all extremities, and motor strength
was 5/5 in all extremities. Clonus, straight leg raising, and Romberg signs were negative. There
were no Babinski signs, and appellant could toe and heel walk without difficulty. Dr. Brown
concluded that, based on the job descriptions provided, his physical examination findings, the
FCE results and his review of the prior records, she was capable of performing the duties of any
of the constructed positions for eight hours a day.
On October 24, 2008 Dr. Rolnick reiterated that appellant was limited to six hours of
work, noting that when she attempted to return to an eight-hour day, her neck and back pain
increased.
Appellant was separated from the employing establishment, effective
December 20, 2008.
A February 17, 2009 investigative report from the employing establishment Office of
Inspector General (OIG) reflected that appellant was pursuing a master’s degree and was
performing caseworker duties as a master’s-level intern at a facility where she conducted
individual and group therapy for 24 hours per week.
OWCP obtained current salary information from the employing establishment, and on
February 18, 2009 OWCP proposed to reduce appellant’s compensation based on her capacity to

2

Dr. Brown was provided the same statement of accepted facts that had been provided to Dr. Cohen.

3

earn wages as a caseworker.3 Appellant disagreed with the proposed reduction. In a February 6,
2009 treatment note, Dr. Rolnick noted no significant complaints, with occasional aching in the
neck area. He reiterated that appellant was limited to six hours of work daily because any
increase caused significant neck problems. On March 27, 2009 Dr. Rolnick advised that she was
having intermittent, occasional pain and was about to graduate from school. He noted no change
in appellant’s status. Dr. Rolnick recommended home exercise, occasional medication, and
continued work restrictions.
On May 7, 2009 OWCP found that the weight of the medical evidence rested with the
opinion of Dr. Brown and reduced appellant’s compensation benefits, effective that day, based
on her capacity to earn wages as a full-time child welfare caseworker. This yielded a 54 percent
loss of wage-earning capacity. Appellant’s compensation was reduced accordingly. She timely
requested a hearing.
On July 31, 2009 Dr. Rolnick reported that appellant continued to complain of neck pain,
that she took no medication on a regular basis, and performed a home exercise program. He
diagnosed herniated discs at C5-6 and C6-7 with degenerative spondylosis and central stenosis
and requested an updated magnetic resonance imaging (MRI) scan study. Dr. Rolnick indicated
that he would keep her on six hours of work daily with restrictions of limited bending and
reaching and 15-minute breaks every three hours. An August 11, 2009 MRI scan study of the
cervical spine demonstrated diffuse degenerative disc disease of the cervical spine with
borderline spinal stenosis at C2-3 and disc protrusions at C3-4, C5-6, and C6-7. On August 31,
2009 Dr. Rolnick noted his review of MRI scan findings.
In a September 4, 2009 report, Dr. Arnold S. Zager, an attending Board-certified
psychiatrist, noted that appellant reported a January 10, 1998 work injury and since had
persistent orthopedic complaints, specifically pain and spasms in her right arm, and that she
subsequently developed a reaction to the chronic right arm pain. He stated that her emotional
state had further deteriorated because she had been “terminated” one month previously and that
she became visibly distressed and tearful when presenting her history and appeared physically
uncomfortable with regard to her right arm. Dr. Zager diagnosed dysthymic disorder, pain
disorder due to physical and psychological causes, cervical orthopedic injury, and psychosocial
stressors, and advised that appellant could not work until she emotionally stabilized.
At the hearing, held on October 27, 2009, appellant’s representative read an opening
statement in which she maintained that Dr. Rolnick’s restrictions were applicable. She also
noted that appellant suffered from fibromyalgia and irregular blood pressure, which should have
been taken into account when determining appellant’s limitations, and that an incorrect pay rate
was used in computing her disability compensation. Appellant testified that she received her
master’s degree earlier in 2009, and that her physician had always limited her to six hours of
work a day. She noted that she had a 20-pound lifting restriction and was currently not working.

3

OWCP used the wage information provided by Mr. Price on August 14, 2008 to establish constructed weekly
wage-earning capacity. The job identified on “Florida Occupational Employment and Wages” as a community and
social service specialist, all other, had an entry level hourly rate of $11.84 or $473.60 for a 40-hour week.

4

In reports dated November 18 and December 23, 2009, Dr. Zager diagnosed depressive
symptoms. He noted that she continued to go forward with aspirations to become a licensed
social worker, given her physical restrictions. On November 30, 2009 Dr. Rolnick reiterated his
findings and conclusions.
By decision dated January 13, 2010, an OWCP hearing representative affirmed the
May 7, 2009 decision. On January 10, 2011 appellant, through her representative, requested
reconsideration. Appellant asserted that Dr. Brown had not completed a required work capacity
evaluation, and maintained that the medical evidence established that she could work no more
than six hours a day.
In reports dated June 9, 2010 to January 4, 2011, Dr. Rolnick noted that appellant had
complaints of intermittent neck and arm pain. He reiterated his diagnoses and advised that she
could work six hours daily with a 20-pound weight restriction and no repetitive reaching or
bending, lifting or twisting from the neck or lower back area, and no repetitive use of the left
upper extremity.4
In a February 11, 2011 decision, OWCP denied modification of the prior decision.
Appellant thereafter appealed to the Board.
On June 7, 2011 Dr. Rolnick diagnosed cervical disc disease with degenerative disc
disease and mild-to-moderate spinal stenosis at C5-6; mild-to-moderate spinal stenosis with a
protruding disc and mild bilateral foraminal stenosis at C6-7; and moderate foraminal stenosis at
C7-T1. He advised that the condition was permanently disabling and that appellant was
currently working with restrictions. On January 3, 2012 Dr. Rolnick indicated that there was no
change in her work status.
In an order dated February 15, 2012, the Board, noting that it had not received the
complete case record, set aside the February 11, 2011 OWCP decision and remanded the case to
OWCP for proper assemblage and reconstruction of the case record, to be followed by an
appropriate decision.5
In a July 3, 2012 report, Dr. Rolnick reiterated his findings and conclusions.
A memorandum to the file dated August 24, 2012 reported that the case record had been
fully reconstructed, noting that the employing establishment had provided files dated from
May 1990 to April 2002.
By decision dated August 24, 2012, OWCP again denied modification of the May 7,
2009 wage-earning capacity determination. It found that appellant had not submitted medical
evidence supporting that she was physically incapable of performing the duties of caseworker.

4

On February 9, 2011 appellant’s compensation was reduced to reflect that she no longer had an eligible
dependent.
5

Docket No. 11-921 (issued February 15, 2012). In March 30, 2011 correspondence, OWCP requested that
appellant and the employing establishment provide copies of any records pertaining to the claim.

5

On August 23, 2013 appellant again requested modification of the wage-earning capacity
decision. Her representative asserted that the constructed position was not suitable based on
appellant’s education, and prior experience, and its availability in the open job market at the time
the determination was made. She also contended that there was a conflict in medical evidence
between Dr. Fallon and Dr. Tobolowsky regarding whether appellant could psychiatrically
perform the duties of the selected position, the statement of accepted facts was incomplete, that
fibromyalgia should have been developed as a consequential condition, and that appellant did not
meet the specific vocational preparation (SVP) for the constructed position.
On September 4, 2012 Dr. Rolnick noted appellant’s complaint of worsening neck pain
that radiated into her left elbow. He stated that she had not worked for several months as her
private employer could not accommodate her restrictions. Dr. Rolnick reported tenderness on
examination in the cervical area, noted MRI scan findings, and advised that new cervical spine xrays showed degenerative disc disease from C3-7. He diagnosed multilevel degenerative disc
disease and foraminal stenosis with no evidence of myelopathy and advised that appellant’s work
restrictions remained the same.
On September 25, 2012 Dr. Rolnick reported that she was doing much better on
medication and with physical therapy. He reiterated his diagnoses and restrictions.
On November 13, 2012 Dr. Rolnick stated that appellant had returned to baseline and her
pain was controlled with home traction, stretching, and exercise. He reiterated his diagnoses and
restrictions.
In a July 14, 2013 letter, Dr. Rolnick noted no change in appellant’s work status and that
she had reached maximum medical improvement with regard to the work injury. He found no
material worsening of her accepted condition which was stable but that it would exacerbate if she
performed repetitive work. On July 16, 2013 Dr. Rolnick diagnosed that appellant had an
exacerbation of low back pain with no radiation and reiterated his recommendations. In an
October 22, 2013 treatment note, Dr. Rolnick found appellant’s pain level relatively low. He
diagnosed cervical herniated disc and advised that there was no change in her work status.
In a November 15, 2013 decision, OWCP found that appellant had not met her burden of
proof to modify the May 7, 2009 wage-earning capacity determination. It noted that her
contentions had been previously addressed, adding that Dr. Rolnick had also found that there had
been no material change in her work-related condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6 OWCP regulations and procedures provide that
once a formal loss of wage-earning capacity decision has been issued, modification is not

6

Katherine T. Kreger, 55 ECAB 633 (2004).

6

warranted unless one of three criteria is met.7 The procedures contain provisions regarding the
modification of a formal loss of wage-earning capacity. The relevant part provided that a formal
loss of wage-earning capacity will be modified when: (1) the original rating was in error; (2) the
claimant’s medical condition has materially changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provided that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If OWCP is seeking modification, it must establish that the original rating was in error, that
the injury-related condition has improved, or that the claimant has been vocationally
rehabilitated.8
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a statement of accepted facts.9
ANALYSIS
Appellant asserts that the May 7, 2009 wage-earning capacity determination was
erroneous because the statement of accepted facts provided to an OWCP referral orthopedist,
Dr. Cohen, and to the impartial orthopedic examiner, Dr. Brown, did not include all accepted
conditions. The first statement of accepted facts was prepared on November 4, 1999 and stated
that the accepted conditions were cervical and lumbar strains. Although the statement of
accepted facts was updated on June 6, 2001, May 1, 2007, and January 29, 2008, it never
reflected additional accepted conditions of aggravation of cervical and lumbar degenerative disc
disease and adjustment reaction with physical symptoms. Because the statement of accepted
facts sent to Drs. Cohen and Brown was not accurate, the original May 7, 2009 wage-earning
capacity decision was in error. The Board finds that, accordingly, the November 15, 2013
decision denying modification of the May 7, 2009 wage-earning capacity determination must
therefore be reversed.10
As to appellant’s contention that OWCP failed to develop whether fibromyalgia was a
consequential condition, a claimant bears the burden of proof to establish a claim for a
consequential injury. As part of this burden, the claimant must present rationalized medical
opinion evidence, based on a complete factual and medical background, showing causal
relationship.11 While Dr. Fallon diagnosed fibromyalgia due to the employment injury, he
provided no explanation or rationale for his conclusions. Furthermore, there is no indication that
a diagnosis of fibromyalgia was preexisting at the time of the January 10, 1998 employment
injury.

7

20 C.F.R. § 10.511; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning
Capacity, Chapter 2.1501.1 (June 2013).
8

Id. at Chapter 2.1501.3a.

9

Donald E. Ewals, 51 ECAB 428 (2000).

10

See Donald E. Ewals, supra note 10.

11

J.J., Docket No. 09-27 (issued February 10, 2009).

7

The Board also notes that although a January 14, 2010 decision was misidentified as a
Board decision rather than a decision of an OWCP hearing representative on page three of the
November 15, 2013 decision, this is harmless error, because earlier in the decision, OWCP
clearly identified the January 14, 2010 decision as from the Branch of Hearings and Review.12
Based on the Board’s finding regarding the flawed statement of accepted facts, it need not
consider the additional assertions raised in this appeal.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a
consequential fibromyalgia condition. The Board further finds that, because the statement of
accepted facts sent to an OWCP referral orthopedist and to the impartial orthopedic examiner
was flawed, appellant met her burden of proof to establish that the May 7, 2009 wage-earning
capacity decision was issued in error and must be reversed.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: June 24, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Compare pages two and three of the November 15, 2013 decision.

8


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

)
)
)
)
)
)
)
)

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

Docket No. 18-1781
Issued: April 8, 2019

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 September 25, 2018 appellant, through counsel, filed a timely appeal from a July 3,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that his left shoulder,
cervical, and lumbar conditions are causally related to the accepted June 28, 2017 employment
incident.
FACTUAL HISTORY
On June 28, 2017 appellant, then a 28-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date he suffered a left knee injury when another vehicle reversed
and pinned him up against the front of his two-ton truck while in the performance of duty.
Appellant stopped work on June 29, 2017.
On June 28, 2017 the employing establishment issued appellant a properly executed,
authorization for examination and/or treatment (Form CA-16), which authorized medical
treatment at Brooklyn Hospital for his claimed June 28, 2017 left knee injury.
Hospital emergency room records dated June 28, 2017 indicate that appellant was treated
by Gunit Tumber, a physician assistant, and Nusrat Mitu, a registered nurse, for left knee pain. An
emergency department note excused appellant from work on June 29, 2017.
In a duty status report (Form CA-17) dated June 28, 2017, an unknown provider with an
illegible signature noted a date of injury of June 28, 2017 and described that appellant was “hit by
car and left knee pain.” Appellant was authorized to resume regular duty.
In an attending physician’s report (Form CA-20) dated June 28, 2017, an unknown
provider with an illegible signature related a history of injury of “back pain and left knee pain.”
Appellant was diagnosed with lumbar strain.
In a July 5, 2017 development letter, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. It advised him of the factual and medical evidence
necessary to establish his claim and also provided a questionnaire for completion. OWCP afforded
appellant 30 days to provide the necessary factual information and medical evidence.
In a July 6, 2017 work status note, Dr. David Adin, Board-certified in physical medicine
and rehabilitation, related that appellant could not return to work at that time.
OWCP received an undated letter from Dr. David Hong, a chiropractor, who indicated that
appellant was under his care for his condition.
By decision dated August 7, 2017, OWCP denied appellant’s traumatic injury claim. It
accepted that the June 28, 2017 employment incident occurred as alleged, but denied the claim
because the evidence of record did not establish a valid medical diagnosis in connection with the
accepted employment incident. Therefore, he had not met the requirements to establish an injury
as defined by FECA.
On October 16, 2017 appellant requested reconsideration and submitted additional medical
evidence.
2

In a June 30, 2017 initial evaluation report, Dr. Hong described that on June 28, 2017
appellant was involved in an accident at work when another car reversed and pinned him against
his work truck. He conducted an examination and diagnosed post-traumatic cervical, thoracic, and
lumbar strains; cervical, thoracic, and lumbar subluxations; cervicalgia; lower back pain; and left
shoulder pain. Dr. Hong opined that “the accident on [June 28,] 2017 was a competent producing
cause of [appellant’s] symptoms.”
OWCP received several state workers’ compensation forms dated July 31, November 7,
and December 12, 2017 by Dr. Hong, who reported his dates of treatment and diagnoses of muscle
strain and back muscle and tendon strain. Additional state workers’ compensation forms dated
August 22 through December 12, 2017 indicated that appellant underwent physical therapy
treatment from Tom L. Rhee, an acupuncturist, and Jonathan Wang, a physical therapist.
An August 17, 2017 left shoulder magnetic resonance imaging (MRI) scan demonstrated
an interstitial tear in the infraspinatus tendon, superior labral tear, and subacromial bursitis. An
August 21, 2017 lumbar spine MRI scan demonstrated intervertebral disc herniation, mild central
spinal canal stenosis, and moderate encroachment of the neural foramina at L4-5 and L5-S1, and
intervertebral disc bulge and mild encroachment of the neural foramina at L3-4. An August 22,
2017 cervical spine MRI scan demonstrated an intervertebral disc herniation, central spinal canal
stenosis, and encroachment of the neural foramina at C6-7, and intervertebral disc bulge at C5-6
and C7-T1, mild encroachment at C7-T1.
In a September 6, 2017 report, Dr. Mark Kramer, a Board-certified orthopedic surgeon,
noted that appellant had complained of persistent left shoulder pain since a June 28, 2017
employment incident. Upon examination of appellant’s left shoulder, he observed tenderness to
the anterolateral aspect of the shoulder, as well as the bicipital groove. Neer’s, Hawkin’s, and
impingement signs were positive. Dr. Kramer diagnosed left shoulder traumatic impingement
syndrome, left shoulder superior labrum anterior posterior (SLAP) tear, and left shoulder rotator
cuff tendinitis and partial tear.
In an October 12, 2017 follow-up evaluation report, Dr. Adin noted the June 28, 2017
work-related injury and related that appellant continued to complain of persistent low back pain
that radiated from the back of both thighs, ongoing left shoulder pain, and neck pain radiating into
his shoulders bilaterally. Examination of appellant’s neck revealed tenderness to the periscapular
musculature bilaterally. Spurling’s testing bilaterally reproduced concordant radiating symptoms
into the shoulders. Examination of appellant’s left shoulder showed evidence of impingement
with positive provocative measures including cross-body pain with anterior tenderness. Sensation
was intact and strength was symmetric throughout both upper limbs. Dr. Adin diagnosed
discogenic neck pain secondary to disc herniation and bulging, discogenic low-back pain with
herniation resulting in radicular compromise, and left shoulder labral tear with evidence of
impingement.
In an October 18, 2017 report, Dr. Kramer reevaluated appellant for complaints of left
shoulder pain. Examination of appellant’s left shoulder showed no tenderness and normal range
of motion. Impingement sign was negative. Dr. Kramer indicated that appellant was doing well.

3

By decision dated January 12, 2018, OWCP affirmed the August 7, 2017 decision with
modification. It found that the medical evidence of record was sufficient to establish diagnoses of
left shoulder impingement syndrome, left shoulder superior labral tear, anterior to posterior SLAP
tear, left shoulder rotator cuff tendinitis, left shoulder labral tear, cervical disc herniation, and
lumbar disc herniation. However, OWCP denied appellant’s claim due to insufficient medical
evidence to establish causal relationship between his diagnosed conditions and the accepted
June 28, 2017 employment incident.
On April 4, 2018 appellant, through counsel, requested reconsideration.
In a February 15, 2018 follow-up report, Dr. Adin noted that appellant sustained a workrelated injury on June 28, 2017. He described that appellant was struck in the back of his thighs
and low back when a car abruptly reversed and pinned him between the car and his work truck.
Dr. Adin related that appellant turned, rotating his trunk, and hit the back of the automobile. When
the driver moved the automobile forward, appellant fell onto his abdomen and jolted his neck and
low back. Dr. Adin noted that appellant’s injuries were “predominantly discogenic in origin with
disc herniations and bulging that [was] in accord with such a traumatic event.” Upon physical
examination of appellant’s neck, he observed no signs of infection, ecchymosis, or erythema.
Examination of his lumbar spine showed improved range of motion. Dr. Adin reported intact
strength and sensation throughout both upper and lower limbs. He noted that appellant was
partially disabled.
OWCP received additional state workers’ compensation forms, dated April 10, 2018, from
Mr. Rhee and Dr. Hong.
By decision dated July 3, 2018, OWCP denied modification of the January 12, 2018
decision. It found that the medical evidence of record was insufficient to establish that appellant’s
diagnosed left shoulder, cervical, and lumbar conditions were causally related to the accepted
June 28, 2017 employment incident.
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

3

Id.

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

4

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 determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a personal
injury.9 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.10
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.11 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.12 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed left shoulder, cervical, and lumbar conditions were causally related to an accepted
June 28, 2017 employment incident.
Appellant submitted several reports by Dr. Adin dated July 6, 2017 to February 15, 2018.
Dr. Adin accurately described the June 28, 2017 employment incident and related appellant’s
continued complaints of pain in his left shoulder, neck, and back. He noted that appellant’s injuries
were “predominantly discogenic in origin with disc herniations and bulging that [were] in accord
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

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

T.H., supra note 7 at 388, 393; Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

Id.

5

with such a traumatic event.” Dr. Adin provided examination findings and diagnosed discogenic
neck pain secondary to disc herniation and bulging, discogenic low-back pain with herniation
resulting in radicular compromise, and left shoulder labral tear with evidence of impingement.
Although Dr. Adin attributed appellant’s left shoulder, cervical, and lumbar conditions to
the accepted June 28, 2017 employment incident, he did not provide an affirmative opinion
explaining how the described work incident resulted in the diagnosed medical conditions. The
Board has found that a physician must provide a narrative description of the identified employment
incident and a reasoned opinion on whether the employment incident described caused or
contributed to appellant’s diagnosed medical condition(s).14 Because Dr. Adin did not provide a
reasoned opinion explaining how the June 28, 2017 employment incident caused or contributed to
appellant’s left shoulder, cervical, and lumbar conditions, his reports are insufficient to establish
appellant’s claim.
Appellant was also treated by Dr. Kramer. In reports dated September 6 and October 18,
2017, Dr. Kramer reported examination findings of tenderness to the anterolateral aspect of
appellant’s left shoulder and diagnosed left shoulder traumatic impingement syndrome, left
shoulder SLAP tear, and left shoulder rotator cuff tendinitis and partial tear. He did not, however,
opine on the cause of appellant’s diagnosed conditions. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.15 These reports, therefore, are insufficient to establish
appellant’s claim.
Likewise, the diagnostic reports, including the August 17, 2017 left shoulder, August 21,
2017 lumbar spine, and August 22, 2017 cervical spine MRI scans also fail to establish appellant’s
claim as they did not provide an opinion on the causal relationship between his diagnosed left
shoulder, cervical, and lumbar conditions and the accepted June 28, 2017 employment incident.
The Board has held that reports of diagnostic tests lack probative value as they fail to provide an
opinion on the causal relationship between his employment duties and the diagnosed conditions.16
Appellant also received medical treatment from Dr. Hong, a chiropractor. In a June 30,
2017 initial evaluation report, Dr. Hong accurately described the June 28, 2017 employment
incident. He conducted an examination and diagnosed post-traumatic cervical, thoracic, and
lumbar muscle strains, cervical, thoracic, and lumbar subluxations, cervicalgia, lower back pain,
and left shoulder pain. Dr. Hong opined that “the accident on [June 28,] 2017 was a competent
producing cause of [appellant’s] symptoms.” He also provided workers’ compensation forms
dated July 31, November 7, and December 12, 2017.
Under FECA the term physician includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to

14

See V.J., Docket No. 17-0358 (issued July 24, 2018); John W. Montoya, 54 ECAB 306 (2003).

15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16

See A.B., Docket No. 17-0301 (issued May 19, 2017).

6

correct a subluxation as demonstrated by x-ray to exist.17 OWCP’s regulations at 20 C.F.R.
§ 10.5(bb) have defined subluxation as an incomplete dislocation, off-centering, misalignment,
fixation or abnormal spacing of the vertebrae which must be demonstrable on any x-ray film to an
individual trained in the reading of x-rays.18 If the diagnosis of a subluxation as demonstrated by
x-ray is not established, the chiropractor is not a physician as defined under FECA and his or her
report is of no probative value to the medical issue presented.19 The Board finds that the evidence
of record does not include an x-ray establishing the diagnosis of subluxation. Accordingly,
Dr. Hong’s opinion is of no probative value to establish appellant’s claim.
The remaining emergency department records dated June 28, 2017 by Gunit Tumber, a
physician assistant, and state workers’ compensation forms dated August 22 through April 10,
2018 by Tom L. Rhee, an acupuncturist, and Jonathan Wang, a physical therapist, are also
insufficient to establish appellant’s traumatic injury claim. These records are of no probative value
because a physician assistant, physical therapist, and acupuncturist, are not considered a physician
as defined under FECA.20 Likewise, the June 28, 2017 Form CA-17 and Form CA-20 from an
unknown provider with illegible signatures are of no probative value to establish appellant’s claim.
Reports that are unsigned or that bear illegible signatures cannot be considered as probative
medical evidence because they lack proper identification.21
On appeal, counsel contends that OWCP “nit-picked” the evidence and ignored the medical
description of causation. He did not, however, provide any evidence to support his argument.
Because appellant has failed to provide well-reasoned medical evidence establishing causal
relationship, he has not met his burden of proof to establish his traumatic injury claim.22

17

5 U.S.C. § 8101(2).

18

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121 (1990).

19

R.P., Docket No. 18-0860 (issued December 4, 2018); Mary A. Ceglia, 55 ECAB 626 (2004); Jack B. Wood, 40
ECAB 95, 109 (1988).
20

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). George H. Clark, 56 ECAB 162 (2004) (physician
assistant); Nemat M. Amer, Docket No. 03-0338 (issued April 7, 2003) (acupuncturist); Jane A. White, 34 ECAB 515,
518 (1983) (physical therapist).
21

D.R., Docket No. 18-1408 (issued March 1, 2019); Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams,
55 ECAB 343 (2004).
22

When the employing establishment properly executes a CA-16 form which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from
the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB
608, 610 (2003).

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left
shoulder, cervical, and lumbar conditions are causally related to the accepted June 28, 2017
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 8, 2019
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, SURFSIDE STATION,
Surfside, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1673
Issued: February 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 13, 2011 appellant, through his attorney, filed a timely appeal from a January 19,
2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration as untimely and insufficient to show clear evidence of error. As the
last merit decision was issued July 8, 2008, more than one year from the filing of the appeal, the
Board lacks jurisdiction over the merits of this case.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the January 19, 2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely and did not establish clear evidence of error.
1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. See 20 C.F.R. § 501.3(d)(2). An appeal of final adverse OWCP decisions issued on or after November 19,
2008 must be filed within 180 days of the decision. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 27, 2006 appellant, then a 51-year-old manager, filed a traumatic injury
claim alleging that he sustained low back strain and a disc and nerve injury on February 11, 2006
in the performance of duty. OWCP accepted the claim for lumbar strain and paid him
compensation for total disability beginning August 26, 2006.
By decision dated July 8, 2008, OWCP terminated appellant’s compensation and
entitlement to medical benefits effective that date. It found that the April 15, 2008 opinion of
Dr. Melvyn Drucker, a Board-certified orthopedic surgeon who provided a second opinion
examination, established that appellant had no further condition or need for further medical
treatment due to his accepted lumbar strain.3
On May 11, 2010 appellant, through his attorney, requested reconsideration. Counsel
argued that Dr. Drucker did not consider whether appellant’s lumbar strain aggravated a
preexisting condition. He also maintained that Dr. Drucker’s finding that appellant’s continued
problems were primarily due to degenerative disc disease and lumbar radiculopathy implied that
part of his condition was due to lumbar strain. The attorney asserted that the claim should be
expanded to include an aggravation of preexisting degenerative disc disease and radiculopathy.
He further maintained that a March 2010 report from Dr. Eddie Sassoon, an attending Boardcertified physiatrist, established that appellant’s lumbar strain aggravated preexisting
degenerative disc disease and radiculitis.
In a January 15, 2010 statement accompanying the request for reconsideration, appellant
related that he continued to experience pain due to his February 11, 2006 back injury. He noted
that he had back pain 10 years before the 2006 injury that had resolved. Appellant advised that
he had been unable to work since August 2006 due to back pain radiating down his legs to his
feet.
In a report dated March 8, 2010, Dr. Sassoon related that he had treated appellant since
2006. He reviewed the February 11, 2006 employment injury and discussed appellant’s history
of preexisting lumbar degenerative disc disease. Dr. Sassoon stated, “This lumbar strain was
superimposed upon this preexisting condition and has caused a permanent aggravation of the
lumbar degenerative disc disease and created the lumbar radiculitis.” He explained that while he
had previously found that appellant’s lumbar strain had resolved, the “permanent aggravation of
lumbar radiculitis had not resolved at that time and continues. This aggravation of the lumbar
disc disease and the radiculitis is directly and causally related to the February 11, 2006 incident.”
Dr. Sassoon asserted that the mechanism of injury and diagnostic studies supported his finding
that appellant’s lumbar strain aggravated his preexisting condition and listed work restrictions.
By decision dated January 19, 2011, OWCP denied appellant’s request for
reconsideration after finding that it was untimely filed and did not demonstrate clear evidence of
error.

3

In a report dated April 15, 2008, Dr. Drucker found that appellant had no residuals of his lumbar strain but had
restrictions due to nonemployment-related degenerative disc disease and lumbar radiculopathy.

2

On appeal, appellant’s attorney argues that Dr. Drucker did not discuss whether the
lumbar strain aggravated a preexisting condition. He asserts that, by finding that the primary
cause of appellant’s restrictions was degenerative disc disease with radiculopathy, Dr. Drucker
implied that the lumbar strain was a partial contributing cause. Counsel maintains that
Dr. Sassoon’s March 18, 2010 report is rationalized and, given the defects in Dr. Drucker’s
report, sufficient to warrant reversal of OWCP’s termination.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.4 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence on the part of OWCP in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.5
The term ‘clear evidence of error’ is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.6 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise and explicit and must manifest on its face that OWCP committed an
error.7
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.8 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.9 As appellant’s May 10, 2010
request for reconsideration was submitted more than one year after the last merit decision of
record, issued July 8, 2008, it was untimely.10
4

Supra note 2.

5

20 C.F.R. § 10.607.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (December 2003).

7

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
8

20 C.F.R. § 10.607(a).

9

Robert F. Stone, supra note 7.

10

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

3

In accordance with internal guidelines and the Board precedent, OWCP properly
performed a limited review to determine whether appellant’s request for reconsideration showed
clear evidence of error warranting reopening his case for further merit review under section
8128(a) of FECA (5 U.S.C. § 8128(a)), notwithstanding its untimeliness. It reviewed the
evidence he submitted in support of his request but found that it did not clearly show that
OWCP’s most recent decision was in error.
The Board finds that the evidence submitted by appellant in support of his request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s most recent
decision. The critical issue is whether he has shown clear evidence of error in OWCP’s
termination of his compensation and medical benefits on the grounds that he had no further
disability or residuals of his accepted lumbar strain.
With his request for reconsideration, appellant submitted a March 8, 2010 report from
Dr. Sassoon, who described his treatment of appellant since 2006 and discussed his February 11,
2006 work injury. Dr. Sassoon opined that the accepted employment injury of lumbar strain
resulted in a permanent aggravation of preexisting lumbar degenerative disc disease and
radiculitis. He asserted that diagnostic studies and the means of injury supported his conclusion.
Dr. Sassoon provided work restrictions.
Dr. Sassoon’s report is supportive of appellant’s claim and contains rationale. The term
“clear evidence of error,” however, is intended to represent a difficult standard. The submission
of a detailed well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.11 Dr. Sassoon’s report does not manifest on its face that OWCP committed an
error in terminating appellant’s compensation benefits and thus is insufficient to show clear
evidence of error.
In his reconsideration request and on appeal, appellant’s attorney argued that Dr. Drucker
failed to consider whether accepted lumbar strain aggravated a preexisting lumbar condition. He
further contended that Dr. Drucker’s finding that appellant’s problems resulted primarily from
degenerative disc disease with radiculopathy implied that he had residuals from his lumbar
strain. Dr. Drucker, however, specifically found that the degenerative disc disease and lumbar
radiculopathy were not work related and that appellant had no residuals of his lumbar strain.
On appeal, appellant’s attorney also argues that Dr. Sassoon’s report is sufficient to show
error in OWCP’s termination of compensation. As discussed, however, his report does not show
on its face that OWCP committed an error in its termination decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely and did not establish clear evidence of error.

11

See D.D., 58 ECAB 206 (2006); Joseph R. Santos, 57 ECAB 554 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0897
Issued: April 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 19, 2017 appellant, through her representative, filed a timely appeal from a
January 26, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The record also contains a March 15, 2017 overpayment decision. Appellant’s representative did not appeal this
decision.

ISSUE
The issue is whether OWCP properly determined that appellant forfeited her right to
compensation for the periods of November 1, 2005 to February 1, 2007 and December 13, 2010
to May 4, 2015, pursuant to section 8106(b)(2) of FECA.
On appeal appellant’s representative maintains that she received no wage-loss
compensation for the period November 1, 2005 through September 10, 2006 and, therefore, a
forfeiture is improper for this period, and that she did not knowingly misrepresent her earnings
during the period December 13, 2010 to May 4, 2015.
FACTUAL HISTORY
On August 1, 2006 appellant, then a 49-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that she injured her back, right side, and shoulder on July 27,
2006 while retrieving mail from a postal container. She stopped work on July 27, 2006.
On August 18, 2006 OWCP accepted thoracic or lumbosacral neuritis or radiculitis.
Appellant received continuation of pay from July 28 to September 10, 2006, and wage-loss
compensation thereafter. She was placed on the periodic compensation rolls in October 2006.
The record includes OWCP EN1032 forms signed by appellant from February 1, 2007 to
May 4, 2015. On the form signed by her on February 1, 2007 appellant indicated that, for the past
15 months, she only worked for the employing establishment and was not self-employed or
involved in any business enterprise. On forms signed on January 26, 2008, March 14, 2009,
March 11, 2010, March 9, 2011, March 13, 2012, and March 13, 2013 she indicated that she had
not worked for any employers and was not self-employed or involved in a business enterprise.
Appellant listed no income. On EN1032 form signed by appellant on March 13, 2014 and
submitted to OWCP on March 24, 2014 she again listed no work or involvement in a business
enterprise.
By letter dated April 30, 2014, OWCP informed appellant that the form she signed on
March 13, 2014 was not completed properly as she did not answer all questions as required.
Appellant then submitted an amended EN1032 form on May 13, 2014, that she signed on
May 4, 2014. On that form she indicated that she was involved in a jewelry business and had
earnings of $2,062.00.
On the EN1032 form she signed on May 4, 2015, appellant advised that she was selfemployed from September to December 2014 in a jewelry business with earnings of $1,500.00.4
By letter dated May 26, 2015, OWCP asked that appellant furnish more information about
the jewelry business she reported. Appellant was asked to provide the name and address of the
business, who managed the business, the exact duties she performed, a list of three suppliers and

4
By letter dated April 30, 2015, OWCP informed appellant that her benefits would be suspended effective May 5,
2015 because she failed to submit the requested EN1032 form.

2

three customers, and other information regarding banking, permit, premises leased, insurance, and
taxes.
In a June 6, 2015 response, appellant indicated that she was the operator and manager of
the business. She indicated that she sent clients to a jeweler to select and purchase primarily
diamonds, engagement rings, and wedding sets. The jeweler set the price and appellant received
a percentage and kept bookkeeping, and the jeweler kept the receipts. Appellant noted that she
had no supplies, stock, employees, pay rate, or specific hours of operation, did not lease premises,
and had no business insurance. She related that she was billed by the jeweler, and the client would
pay either the jeweler or her, and the jeweler would hold her liable for nonpayment. Appellant
provided a list of two jewelers and three clients, and indicated that she had earnings of $15,000.00
since the business was established.
Appellant forwarded documentation including a State of New Jersey business registration
certificate indicating that on August 1, 2012 a license was issued with a trade name of Ida’s
Personal Jewelry Consultant, with appellant listed as the taxpayer. She included Internal Revenue
Service (IRS) Profit or Loss from Business forms (Form 1040 Schedule C) for jewelry sales for
the year 2006 which showed a loss, and personal IRS tax returns for the years 2006, where she
reported business income loss; 2007, where she reported no business income; 2010 where she
reported income of $4,642.00; 2011 where she reported business income of $13,775.00; 2012
where she reported business income of $12,350.00; 2013 where she reported business income of
$9,360.00; and 2014 where she reported business income of $6,500.00.
By decision dated February 18, 2016,5 OWCP found that appellant forfeited compensation
for the periods November 1, 2005 through February 1, 2007 and December 13, 2010 through
May 4, 2015. It explained that on OWCP EN1032 forms she signed on February 1, 2007,
March 13, 2012, March 13, 2013, March 13, 2014, and May 4, 2015 she knowingly failed to report
earnings and employment activities. The decision included copies of appellant’s affirmations and
signatures on the above-listed EN1032 forms. OWCP found that appellant either did not report or
underreported earnings from her jewelry business, as shown on IRS income tax forms for the years
2006, 2010, 2011, 2012, 2013, and 2014. It concluded that, since the evidence supported that she
knowingly omitted and/or understated earnings, she forfeited the right to wage-loss compensation
for the period November 1, 2005 through February 1, 2007 and December 13, 2010 through
May 4, 2015. OWCP also notified appellant that an overpayment of compensation had been
created for these periods.
Appellant timely requested a hearing with OWCP’s Branch of Hearings and Review. At
the hearing, held on October 4, 2016, she testified that the only outside earnings she had in 2006
were before the employment injury. Appellant indicated that, in the EN1032 forms completed on
March 13, 2013 and March 13, 2014, she had no profit, and that she did not receive an EN1032
form in 2015 until one was sent to her attached to OWCP’s April 30, 2015 letter.6 She testified

5

OWCP initially issued a forfeiture decision on December 11, 2015, but reissued it on February 18, 2016 because
appeal rights had not been included in the December 11, 2015 decision.
6

Supra note 4.

3

that she reported income on the form she returned in May 2015. Appellant also indicated that she
last received FECA compensation in April 2015.
By decision dated December 9, 2016, an OWCP hearing representative found that
appellant knowingly failed to comply with the reporting requirement for the periods November 1,
2005 through February 1, 2007 and December 13, 2010 through May 4, 2015 and affirmed the
February 18, 2016 decision.
On December 29, 2016 appellant, through her representative, requested reconsideration.
Appellant’s representative asserted that appellant truthfully reported her earnings on an amended
EN1032 form signed by appellant on May 4, 2014, and on the form signed by her on May 4, 2015,
asserting that OWCP’s hearing representative mischaracterized her earnings, and also indicated
that “the income reported for 2011 and 2012 were errors,” noting that she submitted an amended
2012 tax form showing that she had no income, and she had no income in 2011. He submitted
IRS profit and loss from business tax forms (Schedule C) for 2011, 2013, and 2014, and amended
tax returns for 2012 and 2014. The Schedule C form for 2013 indicated that appellant had a gross
income of $2,062.00, and the Schedule C for 2014 indicated a gross income of $1,500.00.
By decision dated January 26, 2017, OWCP denied modification of the December 9, 2016
decision. It noted that the evidence submitted with appellant’s December 29, 2016 reconsideration
request showed that appellant did have income which was either not reported or reported
incorrectly.
LEGAL PRECEDENT
Section 8106(b) of FECA provides that the Secretary of Labor may require a partially
disabled employee to report his or her earnings from employment or self-employment, by affidavit
or otherwise, in the manner and at the times the Secretary specifies. It states that an employee
who:
“(1) fails to make an affidavit or report when required; or
“(2) knowingly omits or understates any part of his or her earnings forfeits his or
her right to compensation with respect to any period for which the affidavit or report
was required.”7
Section 10.5(g) of OWCP’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses, and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
7

5 U.S.C. § 8106(b); see F.C., 59 ECAB 666 (2007).

4

characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”8
In order to establish that a compensationer should forfeit the compensation received for the
periods covered by completed OWCP EN1032 forms, the evidence must establish that he or she
knowingly omitted or understated his or her employment and earnings.9 As forfeiture is a penalty,
it is not enough merely to establish that there were underreported earnings from employment.
OWCP can, in several ways, meet its burden of proof in establishing that a claimant
“knowingly” failed to report employment or earnings. This includes the claimant’s own admission
to OWCP that he or she failed to report employment or earnings which he or she knew should be
reported, or establishing that the claimant has pled guilty to violating applicable federal statutes
by falsely completing the affidavits in the EN1032 form.10 The inquiry is whether appellant
knowingly omitted or understated her earnings from employment for the periods covered by the
EN1032 forms. The term “knowingly” as defined in OWCP’s implementing regulations and
Board precedent means “with knowledge, consciously, intelligently, willfully, and
intentionally.”11 The language on OWCP EN1032 forms is clear and unambiguous in requiring a
claimant to report earnings for the previous 15 months from any employer, self-employment, or a
business enterprise in which he or she worked. The forms further emphasize that severe penalties
may be applied for failure to report all work activities thoroughly and completely.12
ANALYSIS
OWCP found that appellant forfeited wage-loss compensation for the periods November 1,
2005 to February 1, 2007 and December 13, 2010 to May 4, 2015 because she reported no earnings
or underreported her earnings from a jewelry business. It based its forfeiture determination on the
submission of EN1032 forms which appellant completed in 2007, 2008, 2009, 2010, 2011, 2013,
2014, and 2015.
Regarding the forfeiture period of November 1, 2005 to February 1, 2007, in the EN1032
form, appellant signed on February 7, 2007, she denied any self-employment or involvement in a
business enterprise and reported no earnings for the previous 15 months. A 2006 tax return found
in the record supports that appellant had business income. In the case of F.H., the Board found

8

20 C.F.R. § 10.5(g).

9

Robert R. Holmes, 49 ECAB 161 (1997); Id. at § 10.5(n).

10

Robert Ringo, 53 ECAB 258 (2001).

11

Joan Ross, 57 ECAB 694 (2006).

Id. The penalty language in OWCP EN1032-0494, EN1032-0595, and EN1032 08-10 states, “SEVERE
PENALTIES MAY BE APPLIED FOR FAILURE TO REPORT ALL WORK ACTIVITIES THOROUGHLY
AND COMPLETELY.” (Emphasis in the original.) The penalty language in OWCP EN1032 (Rev. 04-14) states,
“CRIMINAL, CIVIL, AND ADMINISTRATIVE PENALTIES MAY BE APPLIED FOR FAILURE TO
REPORT ALL WORK ACTIVITIES THOROUGHLY AND COMPLETELY.” (Emphasis in the original.)
12

5

that reports on tax forms are persuasive evidence of forfeiture.13 IRS Profit or Loss from Business
forms (Form 1040 Schedule C) for jewelry sales for the year 2006 showed a loss. On appellant’s
personal IRS tax return for the year 2006, she reported business income loss, and on her 2007 tax
return, she reported no business income. Although she declared a loss, this would not obviate the
reporting requirement that she was involved in a business enterprise.14
As forfeiture is a penalty, it is not enough to establish that the claimant failed to report
earnings from employment or self-employment.15 A claimant can be subjected to the forfeiture
provisions of section 8106(b) of FECA only if he or she knowingly failed to report employment
or earnings. The term “knowingly” as defined in OWCP’s implementing regulations means with
knowledge, consciously, willfully, or intentionally. In determining whether a claimant knowingly
failed to report earnings, OWCP procedures provide that the circumstances of the case should be
carefully evaluated with respect to the nature of the employment/earnings involved and any other
relevant factors.16
As the EN1032 form signed by appellant on February 7, 2007 clearly informed her that she
must report all employment, self-employment, and involvement in a business enterprise, even if
the business lost money, this evidence, including appellant’s signing of the strongly worded
certification clause on the EN1032 form, is persuasive evidence that she knowingly understated
her earnings and employment information.17
Appellant’s representative asserted on appeal that, because appellant was not in receipt of
FECA compensation for the period November 1, 2005 to September 10, 2006, forfeiture was not
appropriate. Section 8106(b) of the FECA provides that an employee who fails to make an
affidavit or report when required or knowingly omits or understates any part of his or her earnings,
forfeits the right to compensation with respect to any period for which the affidavit or report was
required.18 Because appellant did not report business earnings on the EN1032 form she signed on
February 1, 2007, she forfeited the right to compensation for the previous 15 months. The fact
that she did not begin receipt of wage-loss compensation until September 11, 2006 is reflected in
the March 15, 2017 overpayment decision, not at issue in the present decision.19 The Board affirms
the finding that appellant knowingly failed to comply with the reporting requirements fully

13

See F.H., Docket No. 07-1379 (issued November 24, 2008).

14

See Gary L. Allen, 47 ECAB 409, 415 (1996).

15

J.S., 58 ECAB 515 (2007).

16
20 C.F.R. § 10.5(g); Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.7
(May 2012); see C.R., Docket No. 09-0720 (issued October 15, 2009).
17

Supra note 12. The EN1032 form signed by appellant on February 7, 2007 was form EN1032-0494. Supra note

12.
18

5 U.S.C. § 8106(b); see C.R., supra note 16.

19

Supra note 3.

6

explained on the EN1032 form she signed on February 7, 2007. Appellant, therefore, forfeited
FECA compensation for the period November 1, 2005 to February 1, 2007.
Likewise, for the period December 13, 2010 to March 13, 2013, on EN1032 forms signed
by appellant on March 13, 2012 and March 13, 2013 she denied any self-employment or
involvement in a business enterprise and reported no earnings for the previous 15 months. While
appellant did not disclose that she was involved in a business enterprise, she reported business
income on her 2010, 2011, 2012, and 2013 tax returns. On her 2010 tax return she reported income
of $4,642.00, in 2011 she reported business income of $13,775.00, in 2012 she reported business
income of $12,350.00, in 2013 she reported business income of $9,360.00, and in 2014 she
reported business income of $6,500.00. The Board therefore finds that appellant’s filing of tax
returns advising the IRS of income generated by her business is persuasive evidence that she knew
that she had income from employment and therefore rejects her representative’s assertion on
appeal that she did not knowingly fail to comply with the reporting requirements.20 As appellant
knowingly failed to comply with the reporting requirements fully explained on the EN1032 forms
she signed on March 13, 2012 and March 13, 2013, she forfeited compensation for the period
December 13, 2010 to March 13, 2013.21
As to the period covered by the EN1032 forms signed by appellant on May 4, 2014 and
May 4, 2015, OWCP found that appellant forfeited compensation because she underreported her
business income. The record, however, supports that on IRS profit or loss from business tax forms
(Schedule C) submitted by appellant with her December 29, 2016 reconsideration request, show
that she had gross income of $2,062.00 in 2013 and gross income of $1,500.00 in 2014. On the
EN1032 form signed by appellant on May 4, 2014, she reported $2,062.00 in earnings, and on the
EN1032 form signed by her on May 4, 2015, she reported $1,500.00 in earnings. The Board finds
that, as appellant reported her gross income on the 2014 and 2015 EN1032 forms, this does not
rise to the level of “knowingly” as contemplated by section 10.5(g) of OWCP’s regulations, which
provides that gross earnings must be reported, and by Board precedent.22 OWCP has the burden
of proof to establish that a claimant did, either with knowledge, consciously, willfully, or
intentionally, fail to report earnings from employment.23 Its procedures recognize that forfeiture
is a penalty,24 and, as a penalty provision, it must be narrowly construed.25 Appellant reported
earnings on EN1032 forms signed on May 4, 2014 and May 4, 2015. The Board thus finds that

20

Id.

21

The EN1032 form signed by appellant on March 9, 2011 was form EN1032-0595. The forms signed on
March 13, 2012 and March 13, 2013 were EN1032 08-10 forms. Supra note 12.
22

5 U.S.C. § 10.5(g); see C.R., supra note 16.

23

20 C.F.R. § 10.5(n); see L.B., Docket No. 15-1648 (issued September 18, 2017).

24

Federal (FECA) Procedure Manual, supra note 16 at Chapter 2.1402.8 (May 2012).

25

20 C.F.R. § 0.5(n); see Anthony A. Nobile, 44 ECAB 268 (1992).

7

OWCP improperly determined that appellant forfeited her compensation for the period March 14,
2013 to May 4, 2015.26
The Board concludes that appellant’s knowing omissions of employment activities on the
EN1032 forms she signed on February 1, 2007, March 13, 2012, and March 13, 2013 justify
findings of forfeiture for the periods November 1, 2005 to February 1, 2007 and December 13,
2010 to March 13, 2013. Accordingly, OWCP’s forfeiture finding is modified to reflect these
periods of forfeiture.27 Upon return of the case record, it shall redetermine the amount of the
forfeiture of compensation and any resulting overpayment consistent with this decision.
CONCLUSION
The Board finds that appellant forfeited her right to compensation for the periods
November 1, 2005 to February 1, 2007 and December 13, 2010 to March 13, 2013.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2017 and December 9, 2016
decisions of the Office of Workers’ Compensation Programs are affirmed as modified.28
Issued: April 9, 2018
Washington, DC

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

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

26

See generally L.B., supra note 23.

27

See J.A., Docket No. 14-1863 (issued July 7, 2015).

28

Colleen Duffy Kiko, Judge, participated in the decision, but was no longer a member of the Board effective
December 11, 2017.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Anniston AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-992
Issued: December 9, 2010

Case Submitted on the Record

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

JURISDICTION
On March 5, 2010 appellant filed a timely appeal from a January 11, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On May 7, 2009 appellant, then a 44-year-old heavy mobile equipment repairer
supervisor, filed an occupational disease claim alleging that he sustained gradual hearing loss in
his right ear over the previous eight years as a result of entering noisy shops. He first realized
that his condition was employment related on April 3, 2006. Appellant did not stop working.
In a May 11, 2009 letter, the Office informed appellant that his claim form was
insufficient to establish his claim and advised him of the evidence needed to establish his claim.

In an April 27, 2009 statement, appellant asserted that he had worn earplugs since
September 2001 and that he was never examined by a private physician for hearing problems.
He attached various documents and employment records, including a summary detailing
appellant’s exposure history to workplace noise above 85 decibels (dBA), eight-hour timeweighted average (TWA) since September 2001. Between September 2001 and May 2004,
appellant was exposed to such noise 63 percent of his workdays. For the periods August to
October 2004 and August to November 2005, he was exposed 21 percent of his workdays. For
all other intervals, appellant was not exposed to noise above 85-dBA TWA. His predicted noiseinduced hearing loss was zero dBA. Also submitted were the employing establishments
audiometric results from 2001 to 2006.
In a May 7, 2009 report, Dr. Ting J. Tai, an employing establishment physician Boardcertified in occupational medicine, reviewed appellant’s records and opined that appellant’s loss
was not noise induced. Noting that unprotected employee exposure to an 85-dBA TWA for 100
percent of the workday for 40 years was expected to bring about a maximum loss of 1 or 2 dBA
in the Office’s compensable range, she pointed out that appellant’s history suggested that he was
exposed to such noise between zero and 63 percent of his workdays for less than eight years and
that appellant wore hearing protection since 2001, which would have further reduced the noise
levels at the inner ear where damage was done by at least 10 dBA. Dr. Tai also observed that
appellant’s hearing loss was unilateral, whereas noise-induced damaged normally affected both
ears, and did not worsen since his 2001 audiometric test, signifying a preexisting condition.
By decision dated June 29, 2009, the Office denied appellant’s claim on the grounds that
the medical evidence failed to establish that his hearing loss resulted from work-related
exposure.
Appellant requested an oral hearing on July 21, 2009.
By decision dated September 25, 2009, an Office hearing representative determined that
appellant’s case was not in posture for an oral hearing because the Office did not refer appellant
for a medical examination in accordance with its procedures.1 The hearing representative
vacated the June 29, 2009 decision and remanded the case for further medical development.
In an October 6, 2009 letter, the Office referred appellant and a statement of accepted
facts, to Dr. Robert Hurlbutt, a Board-certified otolaryngologist, for a second opinion to
determine the relationship between his claimed condition and employment factors.
In a December 1, 2009 report, Dr. Hurlbutt noted examining appellant and found that his
external ear anatomy appeared normal. Appellant’s audiometric test results revealed that, while
appellant’s left ear had normal hearing sensitivity and a speech reception threshold (SRT) of 10
dBA, his right ear had mild to moderate loss at mid frequencies and an SRT of 55 dBA.
Dr. Hurlbutt reviewed appellant’s records and the statement of accepted facts. He noted that
appellant’s unilateral hearing loss predated his federal employment and did not progress
significantly since his hiring in 2001, although appellant was exposed to “potentially hazardous
1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Occupational Illness, Chapter 2.806.5(a)(3)
(September 2010).

2

noise” between September 2001 and May 2004. Dr. Hurlbutt diagnosed appellant as having
right sensorineural hearing loss but opined that the condition was unrelated to workplace noise
exposure since its onset occurred before appellant was hired by the employing establishment and
it remained steady throughout his employment. In a December 23, 2009 addendum, he noted
that a December 15, 2009 magnetic resonance imaging (MRI) scan of appellant’s head and
internal auditory canals did not reveal any internal auditory canal or cerebral pontine angle cause
for appellant’s asymmetric hearing loss.2
By decision dated January 11, 2010, the Office denied appellant’s claim on the grounds
that the weight of the medical evidence did not establish a causal relationship between his
hearing loss and work-related exposure.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disabilities and/or specific conditions for
which compensation is claimed are causally related to the employment injury.4 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.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in 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.7
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 evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
2

The record also contains the December 15, 2009 MRI scan report from Dr. Gary Morgan, a Board-certified
diagnostic radiologist, who found no acute intracranial abnormality.
3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

See S.P., 59 ECAB 184 (2007).

7

See R.R., 60 ECAB ___ n.12 (Docket No. 08-2010, issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238,
241 (2005).

3

factors. 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.8
ANALYSIS
The evidence supports that appellant was exposed to noise at work over several years.
However, the medical evidence does not establish that his diagnosed hearing loss was
attributable to his workplace noise exposure.
The Office referred appellant to Dr. Hurlbutt for an opinion on the cause of his hearing
loss. After reviewing appellant’s prior records, the statement of accepted facts, audiological
findings, and physical examination, Dr. Hurlbutt diagnosed right sensorineural hearing loss but
opined that it was not caused by appellant’s accepted workplace noise exposure. He noted that
appellant’s hearing loss was sustained before he was hired by the employing establishment in
2001 and that testing did not show that the condition had worsened, even though appellant was
exposed to “hazardous” noise for three years. Dr. Hurlbutt also referred appellant for a
December 15, 2009 MRI scan of the head. This testing did not reveal any intracranial
abnormality. Dr. Hurlbutt reviewed the diagnostic study and did not find any basis on which to
attribute the hearing loss to appellant’s workplace noise exposure.
In a May 7, 2009 report, Dr. Tai opined that appellant’s hearing loss was a preexisting,
preemployment condition that remained largely unchanged for eight years. She noted that
appellant had a limited history of high-intensity noise exposure and advised that the asymmetric
nature of the hearing loss was a trait not normally associated with noise-induced damage.
The Board finds that the medical evidence provides no support that appellant’s hearing
loss was work related. Drs. Hurlbutt and Tai both found that the hearing loss was not caused by
his workplace noise exposure. Appellant did not provide sufficient medical opinion evidence
supporting that his hearing loss was caused or aggravated by workplace noise exposure.
Accordingly, the Board finds that the Office’s January 11, 2010 decision properly denied the
claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

8

I.J., 59 ECAB 408 (2008); Woodhams, supra note 5 at 352.

4

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2010
Washington, DC

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

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

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

5