United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Anchorage, AK, Employer
__________________________________________

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Appearances:
Richard E. Vollertsen, Esq., for the appellant
Paul J. Klingenberg, Esq., for the Director

Docket No. 07-256
Issued: July 24, 2009

Oral Argument December 11, 2008

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

JURISDICTION
On November 6, 2006 appellant, through his attorney, filed a timely appeal from a
May 24, 2006 merit decision of the Office of Workers’ Compensation Programs.1 Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined the amount that appellant owed the
government from his third-party recovery.
FACTUAL HISTORY
On October 23, 2001 appellant, then a 47-year-old airway transportation system
specialist, filed a claim for serious injuries sustained in a helicopter crash on October 18, 2001.
On the claim form, his supervisor indicated that a third party, Era Aviation, was responsible for
1

The Office reissued its May 24, 2006 decision on June 13, 2006 to appellant’s correct address.

his injury. The Office accepted the claim for bilateral ankle fractures, a right hand fracture and a
sternum fracture. Appellant stopped work on October 18, 2001 and returned to limited-duty
employment on May 14, 2002.
By letter dated June 9, 2004, the Office advised appellant that compensation benefits paid
to him totaled $264,818.40 and medical benefits paid to him totaled $145,019.71, reflecting a
government lien of $409,838.11. On February 15, 2005 appellant’s attorney informed the Office
that appellant had settled his civil claim against Era Aviation for $2,300,000.00. Although
appellant disputed several calculations regarding the total lien, he tendered a check for the
undisputed portion of the lien in the amount of $207,385.45.
By letter dated March 18, 2005, the Office provided appellant an approved worksheet
entitled, Statement of Recovery (SOR).2 From the $409,838.11 government lien, it deducted
$136,476.09 in attorney’s fees as the government contributes toward repayment of the attorney’s
fee, finding that the amount to be reimbursed was $273,362.02. As appellant had already
reimbursed the Office $207,385.45, it requested that the remainder $65,976.57 be paid in full.
Appellant disputed the amount on two grounds. First, he disagreed with the method for
handling court costs in the Office’s SOR worksheet and second, he disagreed with being
responsible for repayment of certain expenditures that allegedly did not directly represent costs
for his care but rather were incurred by the government for its own case management process.
Regarding the first issue, appellant argued that the SOR is inconsistent with the plain
reading of the statute. The attorney points out the particular language of the statute: “the
beneficiary, after deducting therefrom the costs of suit and a reasonable attorney’s fee, shall
refund to the United States the amount of compensation paid by the United States and credit any
surplus on future payments of compensation payable to him for the same injury….” Appellant
argued that while the worksheet provided a deduction for attorney’s fees and court costs from the
gross recovery, it provided only for a deduction of attorney’s fees (not court costs) from the
amount of compensation benefits to be reimbursed. This, appellant asserted, was clearly
contrary to the plain language of the statute.
Regarding the second issue, appellant argued that $11,713.46 should be subtracted from
the amount of compensation payments already paid by the Office because these charges did not

2

From appellant’s gross third-party recovery of $2,300,000.00, the Office subtracted the amount allocated for
loss of consortium of $575,000.00, attorney’s fees of $574,425.00 and court costs of $44,867.28. This resulted in an
adjusted gross recovery of $1,105,707.72. The Office then deducted 20 percent for appellant, in the amount of
$221,141.54 (which is not subject to any deductions), yielding a total of $884,566.18 from which reimbursement can
be recovered. It determined that it had paid him $409,838.11 in compensation benefits. From that amount, the
Office deducted $136,476.09 for attorney’s fees, rendering a total amount due of $273,362.02. As appellant has
already paid the government $207,385.45, a remainder of $65,976.57 was due. The remaining amount
-- $884,566.18 (adjusted gross recovery) minus $409,838.11 (compensation already paid) provided $474,728.07 to
be used by the Office as an offset for future compensation benefits.

2

represent charges for care he actually received.3 He argued that these expenses were undertaken
by the Office to simply evaluate his case to limit its exposure and expenditures, but not for either
medical benefits or wage-loss compensation for him. In support of this argument, appellant
noted that he was not permitted to obtain copies of these particular medical records because they
were considered to be the property of the Office.
Appellant enclosed his own worksheet calculating the amount he believed that he owed
the Office, $207,385.45, and noted that the Office had already received this amount.
On March 18, 2005 the Office prepared an approved statement of recovery. It disagreed
with appellant’s calculations and reiterated that he continued to be responsible for full payment
of $273,362.02 (owing an additional $65,976.57). The Office further found that the remaining
amount of the settlement award constituted a surplus of $474,728.07 that would offset future
compensation benefits.
In a March 18, 2005 letter, accompanying the SOR, the Office noted that the approved
court costs were only $44,867.28, but by letter dated March 30, 2005, the approved costs were
increased to $49,028.26 to include video documentation.4 This change did not affect the
reimbursement amount; it simply changed the offset amount for future compensation benefits
from $474,728.07 to $471,399.28.5 The Office noted that appellant continued to owe the
government $65,976.57.
By decision dated May 24, 2006,6 the Office found that appellant owed $65,976.57 from
his third-party recovery to the Office. In an accompanying memorandum incorporated by
reference, the Solicitor of Labor (SOL), on behalf of the Director of the Office, explained that
3

The disputed costs were: $642.08 paid to Carol Jacobsen, a registered field nurse, for services during the period
October 25 to 31, 2001; $9,771.38 paid to Virginia Sampson, a registered field nurse, for services during the period
November 1, 2001 to June 30, 2002; $750.00 paid to John DeCarlo, an occupational therapist, for services rendered
on April 9, 2002; and $550.00 paid to Dr. Joella Beard, a Board-certified physiatrist, for services rendered on
May 31, 2002. The Office hired Ms. Sampson, a field nurse with Northern Rehabilitation Services, to “assist in
coordinating the medical aspects of [appellant’s] care and facilitating the flow of information” between him and his
physicians. On April 9, 2002 Mr. DeCarlo performed a functional capacity evaluation to determine appellant’s
physical abilities. Appellant’s attending physician, Dr. Leslie Dean, a Board-certified orthopedic surgeon, requested
the physical capacity evaluation by Mr. DeCarlo. On May 31, 2002 Dr. Beard performed an impairment rating on
appellant at the request of Dr. George S. Rhyneer, an attending Board-certified internist.
4

Although appellant disputes the method for handling court costs on the SOR, he does not dispute the final
amount of costs determined by the Office of $49,028.26.
5

With the increase in court costs, the adjusted gross recovery amount changed to $1,101.546.74, the 20 percent
for appellant was $220,309.95, yielding a total of $881,237.39 for reimbursement. After reimbursement,
$471,399.28 remained to offset future compensation payments.
6

In a letter dated April 21, 2005, the Office provided the attorney instructions for filing an appeal and on
August 23, 2005 an appeal was filed with the Board. By order dated May 12, 2006, the Board found that the record
did not contain a final decision as the Office’s April 21, 2005 letter was simply informational in nature. The Board
noted, however, that it appeared the Office had made a final decision regarding costs and a final amount due and
owing to the government from the third-party litigation in the amount of $65,976.57. That decision was not in the
case record and the Board remanded the case for an appropriate decision to protect appellant’s appeal rights.

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the Office applied the regulatory formula at 20 C.F.R. § 10.7117 in deducting court costs only
from line 10 of the SOR. Regarding the attorney’s challenge to the Office’s payments to nurse
case managers, the Solicitor noted that case management was used to minimize the length and
extent of disability. He further maintained that payments to rehabilitation medicine associates
and rehabilitation and sports medicine constituted refundable disbursements pursuant to
20 C.F.R. § 10.714.8
LEGAL PRECEDENT
Section 8132 of the Federal Employees’ Compensation Act9 provides:
“If an injury or death for which compensation is payable under this subchapter is
caused under circumstances creating a legal liability in a person other than the
United States to pay damages and a beneficiary entitled to compensation from the
United States for that injury or death receives money or other property in
satisfaction of that liability as the result of suit or settlement by him or in his
behalf, the beneficiary, after deducting therefrom the costs of suit and a
reasonable attorney’s fee, shall refund to the United States the amount of
compensation paid by the United States and credit any surplus on future payments
of compensation payable to him for the same injury…. However, the beneficiary
is entitled to retain, as a minimum, at least one-fifth of the net amount of the
money or other property remaining after the expenses of a suit or settlement have
been deducted; and in addition to this minimum and at the time of distribution, an
amount equivalent to a reasonable attorney’s fee proportionate to the refund to the
United States.”10
In determining how much of a settlement or judgment must be paid to the government,
20 C.F.R. § 10.71111 provides:
“(a) The refund to the United States is calculated as follows, using the [SOR]
form approved by [the Office] -(1) Determine the gross recovery as set forth in § 10.712;
(2) Subtract the amount of attorney’s fees actually paid, but not more than
the maximum amount of attorney’s fees considered by [the Office] or SOL
to be reasonable, from the gross recovery (Subtotal A);

7

20 C.F.R. § 10.711 (2006).

8

Id. at § 10.714 (2006).

9

5 U.S.C. §§ 8101-8193.

10

Id.

11

Supra note 7.

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(3) Subtract the costs of litigation, as allowed by [the Office] or SOL
(Subtotal B);
(4) Subtract one fifth of Subtotal B from Subtotal B (Subtotal C);
(5) Compare Subtotal C and the refundable disbursements as defined in
[section] 10.714. Subtotal D is the lower of the two amounts.
(6) Multiply Subtotal D by a percentage that is determined by dividing the
gross recovery into the amount of attorney’s fees actually paid, but not
more than the maximum amount of attorney’s fees considered by [the
Office] or SOL to be reasonable, to determine the [g]overnment’s
allowance for attorney’s fees and subtract this amount from Subtotal D.
“(b) The credit against future benefits (also referred to as the surplus) is calculated
as follows -(1) If Subtotal C, as calculated according to paragraph (a)(4) of this
section, is less than the refundable disbursements, as defined in
[section] 10.714, there is no credit to be applied against future benefits;
(2) If Subtotal C is greater than the refundable disbursements, the credit
against future benefits (or surplus) amount is determined by subtracting
the refundable disbursements from Subtotal C.”
Regarding the determination of the amounts included in the refundable disbursements,
the Office’s regulations at 20 C.F.R. § 10.714 provide:
“The refundable disbursements of a specific claim consist of the total money paid
by [the Office] from the Employees’ Compensation Fund with respect to that
claim to or an behalf of a FECA beneficiary, less charges for any medical file
review (i.e., the physician does not examine the employee) done at the request of
[the Office]. Charges for medical examinations also may be subtracted if the
FECA beneficiary establishes that the examinations were required to be made
available to the employee under a statute other than the FECA by the employing
agency or at the employing agency’s cost.”
Further, the Office’s procedure manual at 2.1100.9(h)12 provides:
“(h) The United States does not contribute to or pay costs associated with the
third-party action. The [Act] does not provide for or authorize the payment of
costs other than as a deduction from the third-party recovery.”

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, FECA Third Party Subrogation Guidelines, Subrogation
and Other Remedies: Processing the SOR, Chapter 2.1100.9(h) (April 1995).

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ANALYSIS
The Office accepted that appellant sustained bilateral ankle fractures, a right hand
fracture and a sternum fracture in a helicopter crash on October 18, 2001. Appellant filed a suit
in state court against the company that operated the helicopter. He settled the case and received
an award of $2,300,000.00. Appellant submitted $207,385.45 to the Office in payment of the
subrogation lien. By decision dated May 24, 2006, the Office determined that he owed an
additional $65,976.57 from his third-party recovery based on its calculation of a refund amount
totaling $273,362.02.
Appellant’s attorney argued that 5 U.S.C. § 8132 provides that court costs should be
deducted not only to determine the adjusted gross recovery but also from the amount of
disbursements made by the government. Reimbursement amount should be calculated after
deducting both the cost of suit and a reasonable attorney’s fee. The attorney stated:
“The computation sheet provided by [the Office] to claimants for use in
calculating subrogation reimbursement to [the Office] is in error, however. The
form substantially follows the provisions of 20 C.F.R. § 10.711. The calculation
contained in the regulation[s] and the calculation form provided by [the Office],
however, plainly deviates from the statutory obligation. While the computation
does subtract costs when figuring the credit offset to [the Office], the costs are not
subtracted in the portion of the computation calculating the reimbursement
amount owed to [the Office]. Thus, the computation is violative of the statute in
calculating the reimbursement amount owed to [the Office]. The statute
specifically mandates that the ‘amount of compensation paid by the United States’
should be repaid by the claimant ‘after deducting therefrom the costs of the suit.’
[The Office] calculation does not permit this deduction; the costs of suit are only
accommodated in calculating the offset relative to future benefits to the worker.
[The Office] is thus freed from paying costs incurred by the worker in taking on
the risk and exposure of litigation, when the statute plainly obligates the United
States to pay such litigation costs.” (Emphasis in the original.)
The Solicitor submitted a memorandum in justification of the Office’s decision, arguing
that the clear language of section 8132 and its implementing regulations “address the issue of
fees and costs directly, foreclosing any further argument.”
The clear statutory right of the Federal Government to recover from third-party
settlements under section 8132 has been recognized by the Supreme Court. In U.S. v.
Lorenzetti,13 a special agent for the Federal Bureau of Investigation was injured in an automobile
accident while on official business and received workers’ compensation benefits. A tort action
in Pennsylvania filed by appellant resulted in a recovery which, due to the particularities of
Pennsylvania law, could consist of only pain and suffering. The Office sought recovery out of
the settlement to reimburse the government for compensation benefits paid and that he claimed it
was not subject to the government’s lien as the award was only for pain and suffering. The
13

United States v. Paul B. Lorenzetti, 467 U.S. 167 (1984) (holding that the government has a “right to
reimbursement out of any damages awarded or settlement received by the claimant.”)

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Court considered and upheld the Federal Government’s right to reimbursement under section
8132, even for such noneconomic losses. The Court noted that the purpose of section 8132 was
“not simply to prevent double recoveries but to minimize the cost of the [Act] program to the
Federal Government.”14 The Court further found that section 8132 is one of the provisions of the
Act “designed to shift the compensation burden from the United States to any third party who is
independently liable for the employee’s injuries.”15 In its ruling, the Court had to look no further
than the plain language of the statute to recognize that the Office maintained that right, despite
the characterization of the award as noneconomic recovery. It stated:
“The answer to the question here is evident on the face of the statute.... Section
8132 imposes only two conditions precedent to an employee’s obligation to
refund … the amount of compensation paid by the United States. The first is that
the employee must have suffered an injury or death under circumstances creating
a legal liability in a third party to pay damages. The second is that the employee
or his beneficiaries must have received money or other property in satisfaction of
that liability.”16
The terms of section 8132 are specific as to what must be charged against the proceeds of
a third-party recovery. The section sets forth what will be deducted and also prescribes a
minimum amount (20 percent) the employee may retain.
“If an injury or death for which compensation is payable under this subchapter is
caused under circumstances creating a legal liability in a person other than the
United States to pay damages and a beneficiary entitled to compensation from the
United States for that injury or death receives money or other property in
satisfaction of that liability as the result of suit or settlement by him or in his
behalf, the beneficiary, after deducting therefrom the costs of suit and a
reasonable attorney’s fee, shall refund to the United States the amount of
compensation paid by the United States and credit any surplus on future payments
of compensation payable to him for the same injury…. However, the beneficiary
is entitled to retain, as a minimum, at least one-fifth of the net amount of the
money or other property remaining after the expenses of a suit or settlement have
been deducted; and in addition to this minimum and at the time of distribution, an
amount equivalent to a reasonable attorney’s fee proportionate to the refund to the
United States.”
14

Id. at 177, citing Dahn v. Davis, 258 U.W. 421 (1922).

15

Id at 171. See also A. Larson, The Law of Workers’ Compensation § 117.01 (2007). (Larson indicates that the
normal rule on reimbursement is that the “subrogated carrier is entitled to recover from the third party not merely its
compensation outlay, but the full amount of the employee’s or dependent’s damages, including personal damages
such as loss of consortium and companionship, but not including the penalties or expenses paid by the carrier.
Larson further notes that the “concept underlying third-party actions is the moral idea that the ultimate loss from
wrongdoing should fall upon the wrongdoer.” The employer in a third-party recovery, “who, in a fault sense, is
neutral comes out even; the third person pays exactly the damages he or she would ordinarily pay, which is correct,
since to reduce the third-party’s burden because of the relation between the employer and employee would be a
windfall that the third party has done nothing to deserve….”)
16

Supra note 13 at 175.

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Appellant does not quarrel with the Office’s right to recovery; rather he argues that the
method for calculating the amount of reimbursement to the Office for compensation benefits is
flawed and contrary to the plain language of the statute. He contends that the costs of litigation
should also be deducted from the amount of compensation benefits paid or the government
receives a windfall -- the benefits of the recovery without having to undertake the costs of
litigation.
Section 8132 of the Act allows the claimant to keep as a minimum one-fifth of the net
compensation from the settlement or judgment after deducting a reasonable attorney’s fee and
litigations costs from the third-party recovery. The section further provides that the claimant
may retain “in addition to this minimum and at the time of distribution, an amount equivalent to a
reasonable attorney’s fee proportionate to the refund to the United States.”17 (Emphasis added.)
The purpose underlying this section of the Act is to prevent a double recovery by the employee.
Neither the Office nor the Board may enlarge or modify the terms of the Act. The statute
mandates that only attorneys’ fees are deducted after the one-fifth recovery amount is calculated.
Costs are not referenced at this point in the calculation and the Office further must offset the
surplus in the present case against future payments of compensation in the form of either medical
benefits or other compensation due him.18
The Office’s regulations at 20 C.F.R. § 10.711 further interpret section 8132 of the Act
by specifically allowing the subtraction of both court costs and attorney’s fees from the gross
recovery as well as the one-fifth allowance, plus an amount equal to the government’s allowance
of an attorney’s fee.19 It argued that the SOR is mandatory as it is based on the clear and
straightforward language of the statute with no room for interpretation, citing to Lexecon Inc. v.
Milberg Weis Bershad Hynes & Lerach.20 The Board finds that the regulations promulgated at
section 10.711 and the Office’s procedure manual at interpreting these regulations (specifically,
that the “United States does not contribute to or pay costs associated with the third-party action.
The [Act] does not provide for or authorize the payment of costs other than as a deduction from
the third-party recovery”) are consistent with the plain language of the statute.21
Following those rules, the Office properly subtracted loss of consortium ($575,000.00),
attorney’s fees of 33 1/3 percent ($574,425.00) and court costs ($49,028.26) from the gross
recovery of $2,300,000.00. This adjusted total was reduced by one fifth ($220,309.35) in accord
with section 8132 and then the balance ($881,237.39) was utilized to determine whether
reimbursement was required by appellant. The Office compared the adjusted gross recovery
balance ($881,237.39) to the total amount of compensation benefits already paid to appellant
17

Supra note 7.

18

Alvin Collins, Docket No. 03-141 (issued August 13, 2003). See also, e.g., Donald Bonte, 48 ECAB 270
(1997); Richard J. Maher, 42 ECAB 902 (1991); Claude W. Darris, 37 ECAB 190 (1985); and Joseph A. Matais,
Docket No. 00-2378 (issued December 10, 2001).
19

Supra note 7.

20

Lexecon Inc. v. Milberg Weis Bershad Hynes & Lerach, 523 U.S. 26, 37 (1998).

21

Sammy High, Docket No. 04-1190 (issued September 8, 2004).

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($409,838.11) to determine if there is any remaining amount against which to offset future
compensation benefits. In this case, it paid compensation benefits in an amount less than the
recovery amount and therefore the lower amount is used to determine the future offset amount.22
The final step was to subtract the approved attorney’s fee ($136,476.09) from the amount of
benefits paid ($409,838.11) to determine the amount of the refund owed ($273,362.02).
In this case, the Office followed each step as set forth in the regulation.
The specific calculations in this case establish that, from the gross recovery of
$2,300,000.00, appellant must refund $273,362.02. Of that amount, $207,385.45 has been paid
leaving a balance of $65,976.57. Further, the remaining balance from the adjusted gross
recovery ($881,237.39) less the compensation benefits paid ($409,838.11) equals the credit
against future benefits ($471,399.28). Accordingly, the Board finds the Office properly
determined the amount of recovery due from the third-party settlement.
The attorney further argued that the Office should not include payments to field nurses
not directly involved in patient care as part of its distributions on behalf of appellant. He also
challenged payments to an occupational therapist who performed a functional capacity
evaluation and a physician who evaluated him to determine the extent of any permanent
impairment. The attorney argued that these “expenditures were solely intended to benefit [the
Office] and were used to limit [the Office’s] exposure and expenditures.” The Solicitor
responded that the payments were for medical services in accordance with section 8103.23
Further, the Office’s regulations, at section 10.714, provides that refundable
disbursements include all money paid by the Office from the Employees’ Compensation Fund
for the claimant, excluding only charges for medical file review or if the charges were
necessitated under another statute.24 It hired the private field nurses to coordinate appellant’s
care and facilitate the sharing of medical information. The occupational therapist and the
physician who performed the impairment evaluation both did so at the request of one of
appellant’s attending physicians. As neither service constituted medical file review and both
expenses were paid from the Employees’ Compensation Fund, the money paid constitutes a
refundable disbursement pursuant to section 10.714. The Board finds that the Office properly
included these amounts in the total amount of compensation benefits paid to appellant.
As appellant received money in a third-party settlement as a result of his employment
injury, section 8132 of the Act requires that he refund a portion of that recovery to the United
States. The amount of the refund to the United States is determined according to the specific
calculations set forth at section 10.711 of the Office’s regulations and described above. The
Office does not have discretionary authority under section 8132 to waive or compromise the
22

Supra note 7.

23

Supra note 9 (section 8103 provides that the “United States shall furnish to an employee who is injured while in
the performance of duty, the services, appliances and supplies prescribed or recommended by a qualified physician,
which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of disability, or aid
in lessening the amount of monthly compensation”).
24

Supra note 8.

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required reimbursement amount.25 Consequently, the Board finds that the Office properly
determined that appellant owed an additional $65,976.57 to the government.
CONCLUSION
The Board finds that the Office properly determined the amount that appellant owed the
government from his third-party recovery.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2006 is affirmed.
Issued: July 24, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

25

R.C., 60 ECAB ___ (Docket No. 08-1201, issued December 16, 2008).

10


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

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

Docket No. 09-726
Issued: November 9, 2009

Case Submitted on the Record

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

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from a December 16, 2008 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 appellant’s claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 23, 2007.
On appeal appellant, through his attorney, contends that the Office decisions are contrary
to fact and law.
FACTUAL HISTORY
On October 30, 2007 appellant, then a 34-year-old postmaster, filed a Form CA-1,
traumatic injury claim, alleging that she was injured in a motor vehicle accident on October 23,
2007 that resulted in the amputation of her left arm. She stopped work that day. A witness
advised that appellant left work at 11:30 a.m. to pick up lunch. Her regular work hours were

from 7:30 am. to 4:00 p.m., Monday through Friday. Appellant acknowledged that she was not
in the performance of duty but stated that she was an exempt employee and therefore on the
clock. By letter dated November 20, 2007, the Office informed appellant of the evidence needed
to support her claim.
By letter dated November 9, 2007, the employing establishment controverted the claim,
contending that appellant’s injury did not occur in the performance of duty because she was
going to pick up lunch. On December 6, 2007, the employing establishment advised that
appellant was an exempt employee for pay purposes only and that she was not on the clock when
the accident occurred. The employing establishment stated that management did not direct or
mandate her to travel and pick up her lunch at an off-premises location.
In a report dated November 8, 2007, Dr. Edward A. Perez, a Board-certified orthopedic
surgeon, noted that appellant sustained an open humerus fracture of the left arm with vascular
injury following an automobile accident, and that she developed complications from ischemia,
necessitating a through shoulder amputation. On December 5, 2007 he noted that appellant had
significant phantom pain and mental health issues and that she might not be able to return to
permanent employment.
In a December 7, 2007 statement, appellant advised that at the time of the October 23,
2007 motor vehicle accident, she was on her 30-minute lunch break. She stated that she was an
exempt employee who was paid on a salary basis regardless of the hours worked or quantity of
work performed and had at times performed work at lunch and after work hours. She reiterated
that because she was an exempt employee who was in pay status at the time of the accident, her
injury was compensable.
By decision dated December 21, 2007, the Office denied the claim on the grounds that
appellant did not sustain an injury in the performance of duty.
On January 11, 2008 appellant, through her attorney, requested a telephonic hearing that
was held on April 29, 2009. At the hearing, appellant described the October 23, 2007 motor
vehicle accident. It was a very rainy day and, as she drove to pick up lunch on a curvy rural
highway, she lost control of her car when it hydroplaned. She stated that she had not returned to
work and contended that, as she was an exempt employee who was paid for lunch, the injury was
compensable. Appellant generally worked alone in a small post office, noting that she had a set
lunch hour daily from 11:30 a.m. to 12:00 noon, when she would close the post office. On
occasion she had work duties at lunchtime but that on the date of injury she was just going to get
lunch in her private vehicle. Appellant’s attorney argued that her injury occurred in the course
of employment because, as she was a 24-hour a day employee, her lunch was no different than a
bathroom break, that she was covered as if she was on travel status, and that her lunch was not a
frolic or detour. He noted that there were no lunch facilities at the employing establishment. By
letter dated May 2, 2008, the attorney argued that the cases of Helen L. Gunderson and Annette
Stonework established that appellant was in the performance of duty when injured.1

1

Annette Stonework, 35 ECAB 306 (1983); Helen L. Gunderson, 7 ECAB 288 (1954).

2

On May 30, 2008 Hilda Owens, an employing establishment health and resource
management specialist, contended that appellant was on a personal lunch break when the injury
occurred. She stated that no postal employee was paid for their lunch hour, even if exempt.
Ms. Owens noted that appellant had an assigned 40-hour work week from 7:30 a.m. to 4:00 p.m.
with a 30-minute, nonpaid lunch period, and acknowledged that the Smithville Post Office did
not have a restaurant on the premises.
In a June 23, 2008 letter, appellant described her work duties. She retired on disability
effective July 9, 2008. In reports dated August 7, 2008, Dr. Charles Davidson, Board-certified in
family medicine, diagnosed left upper extremity amputation, depression, anxiety, right upper
extremity thoracic outlet syndrome and phantom pain. He advised that appellant was unable to
work in any capacity and would be unable to return to work in the future. In a September 29,
2008 report, Dr. Davidson noted that the October 23, 2007 motor vehicle accident resulted in an
amputation of the left upper extremity at the shoulder joint. Appellant had significant depression
and phantom pain, reporting that she had developed right upper extremity thoracic outlet
syndrome and, due to her conditions, was unable to work or to return to work in the future.
By decision dated December 16, 2008, an Office hearing representative affirmed the
December 21, 2007 decision on the grounds that appellant was not in the performance of duty
when she sustained the October 23, 2007 injury.
LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee/employer relation. Instead, Congress
provided for the payment of compensation for “the disability or death of an employee resulting
from personal injury sustained while in the performance of his duty.”2 The phrase “while in the
performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing this issue, the Board has stated: “In the compensation field, to
occur in the course of employment, in general, an injury must occur: (1) at a time when the
employee may reasonably be said to be engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.”3 In deciding whether an injury is covered by the Federal
Employees’ Compensation Act,4 the test is whether, under all the circumstances, a causal

2

5 U.S.C. § 8102(a); Angel R. Garcia, 52 ECAB 137 (2000).

3

George E. Franks, 52 ECAB 474 (2001).

4

5 U.S.C. §§ 8101-8193.

3

relationship exists between the employment itself, or the conditions under which it is required to
be performed, and the resultant injury.5
In addressing the coming and going rule as applicable to lunch-time travel, Larson states,
“when the employee has a definite place and time of work, and the time of work does not include
the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is
indistinguishable in principle from the trip at the beginning and end of the workday, and should
be governed by the same rules and exceptions.”6 Larson also distinguishes coffee or rest breaks,
stating that including the lunch period in the going and coming rule can be justified “because
normally the duration of the lunch period, when lunch is taken off the premises, is so substantial
and the employee’s freedom of movement is so complete, that the obligations and controls of
employment can justifiably be said to be in suspension during this period.”7
There are recognized exceptions to the going and coming rule which are dependent upon
the particular facts relative to each claim: (1) where the employment requires the employee to
travel on the highways; (2) where the employer contracts to and does furnish transportation to
and from work; (3) where the employee is subject to emergency calls, as in the case of firemen;
and ( 4) where the employee uses the highway to do something incidental to his employment
with the knowledge and approval of the employer.8
ANALYSIS
Appellant sustained injury in a motor vehicle accident on October 23, 2007 when she was
driving on a public highway in her personal car to pick up lunch. She contends that, as an
exempt employee, she would be covered 24-hours a day, whether on or off the premises. The
Board finds this is not the case. The CA-1 form submitted by appellant indicated that her regular
duty hours were from 7:30 a.m. to 4:00 p.m. The employing establishment advised that she was
not paid during her lunch break. There is no question that appellant had a fixed place and time of
work and the Board finds that the evidence supports that she had fixed hours.9
The Board finds that the Gunderson and Stonework cases are distinguishable from the
facts of the present case. In Gunderson,10 the off-premises activity was approved by the
employing establishment and was during a paid rest period. In the present case, while there was
no cafeteria at the employing establishment, appellant was on her unpaid lunch period. As noted
by Larson, when the employee has a definite place and time of work, and the time of work does
not include the lunch hour, the trip away from and back to the premises for the purpose of getting
5

Mark Love, 52 ECAB 490 (2001).

6

A. Larson, The Law of Workers’ Compensation § 13.05(1) (1999); see S.A., Docket No. 09-169, issued
July 21, 2009.
7

Id. at § 13.05(4).

8

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

9

Donald R. Gervasi, 57 ECAB 281 (2005).

10

Supra note 1.

4

lunch is indistinguishable in principle from the trip at the beginning and end of the workday and
should be governed by the same rules and exceptions.11 In Stonework,12 although the claimant
was on her lunch period, the claimant was injured on employing establishment property. Unlike
the instant case in which appellant was off premises during her unpaid lunch period. As noted,
when an employee leaves the work premises for lunch or other personal activity, he or she is not
considered within the performance of duty unless one of the recognized exceptions to the going
and coming rule is applicable. There is no evidence that establishes appellant’s employment
required her to travel on the highway to obtain lunch. She was driving her personal vehicle.
Appellant was not subject to emergency calls, as in the case of firemen, and, by her own
admission, at the time of the October 23, 2007 motor vehicle accident, she was not doing
anything reasonably incidental to her employment with the knowledge and approval of the
employer.13
The facts in evidence do not establish that appellant’s trip on October 23, 2007 to pick up
lunch was other than a personal trip. Appellant chose to leave the premises for lunch. She was
not fulfilling the duties of her employment or on the employing establishment premises. The
Board finds that the injury appellant sustained on October 23, 2007 was a result of the ordinary,
nonemployment hazards of a journey shared by all travelers and is not compensable.14 Appellant
was not in the course of employment. She therefore did not sustain a personal injury in the
performance of duty.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that the
injury sustained on October 23, 2007 was in the performance of duty.

11

A. Larson, supra note 6.

12

Supra note 1.

13

Phyllis A. Sjoberg, supra note 8.

14

Donald R. Gervasi, supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2008 be affirmed.
Issued: November 9, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tacoma, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1587
Issued: July 2, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 16, 2012 appellant, through his attorney, filed an appeal from a February 24,
2012 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 his burden of proof to establish disability
compensation for a total of 54 hours during the period December 14, 2009 through
February 6, 2010.
On appeal, appellant’s attorney asserts that there was both a change in the nature and
extent of the injury-related condition and in the nature and extent of the light-duty job
requirements and further asserts that the opinion of appellant’s physician should be credited, that
OWCP referral physician was not qualified because he had been expelled from the American
1

5 U.S.C. §§ 8101-8193.

Neurological Association in 2005 for unprofessional conduct and that his report was not well
rationalized. Finally, the attorney asserted that OWCP used an incorrect legal standard in
determining causation.
FACTUAL HISTORY
On October 29, 2009 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim, asserting that on October 28, 2009 he pinched a nerve while reaching and pulling on a
tightly closed mailbox. He received continuation of pay for the period October 28 through
December 11, 2009.2
In an October 27, 2009 report, Dr. Bruce G. MacDonald, Board-certified in family
medicine, noted a history that appellant was seen for right shoulder and arm pain that had
occurred over the past two days. He noted palpable tightness to the trapezius on the right and
diagnosed brachial neuritis. Dr. MacDonald advised that appellant could not work. In an
October 29, 2009 report, Dr. Mario G. Alinea, also a Board-certified family physician, noted a
history that over the last month appellant had increasing pain in the neck and right arm with
finger numbness, which he attributed to constantly reaching and stretching while delivering mail
from his truck. He reported right trapezius tenderness and diagnosed sprain of the neck and
brachial plexus lesions. Dr. Alinea also advised that appellant could not work.
Appellant was evaluated by Dr. Solomon Kamson, Board-certified in anesthesiology and
pain management, on November 9, 2009. Dr. Kamson noted that appellant was being seen for an
October 27, 2009 employment injury, provided physical examination findings and diagnosed
cervical radiculopathy, cervical spondylosis, thoracic spine pain and brachial neuritis. In a
November 11, 2009 magnetic resonance imaging (MRI) scan study of the cervical spine
demonstrated disc osteophyte complex at C3-4, C6-7 and C7-T1. On December 4, 2009
Dr. Kamson additionally noted that appellant had parascapular pain on the right, muscle spasms,
tenderness and decreased range of motion. On November 21 and December 5, 2009 he
performed cervical/thoracic epidural steroid injections.
Appellant filed a claim for compensation for the period December 14 to 18, 2009. At that
time, the employing establishment stated that he submitted no medical evidence to justify
compensation. By letter dated December 30, 2009, OWCP informed appellant of the type of
evidence needed to formally adjudicate his claim, noting that the evidence of record was
insufficient to establish entitlement.
In a duty status report dated December 4, 2009, received by OWCP on January 25, 2010,
Dr. Kamson advised that appellant could work six hours a day within restrictions. He diagnosed
cervical radiculopathy and a herniated cervical disc. A December 8, 2009 electrodiagnostic
study of the right upper extremity demonstrated evidence consistent with acute C7-8
radiculopathy and mild ulnar neuropathy at the wrist. A brachial plexus lesion could not be ruled

2

Appellant has additional accepted claims. OWCP file numbers xxxxxx074 and xxxxxx068 are accepted for
bilateral fibromatosis and file number xxxxxx523 is accepted for a neck sprain that occurred on October 13, 2004
while moving mail bins. The instant is adjudicated under file number xxxxxx547.

2

out. On January 9, 2010 Dr. Kamson advised that appellant could work six hours of restricted
duty due to brachial neuritis or radiculitis with cervical and thoracic clinical findings.
Appellant accepted a modified carrier position on January 28, 2010. He was to work
from 9:00 a.m. to 3:00 p.m., answering the telephone and performing customer service and
administrative duties. Standing and walking were limited to four hours continuous, six hours
intermittent; simple grasping to six hours; no fine manipulation; and lifting limited to 10 pounds
continuous, 12 pounds intermittent. Appellant filed claims for two hours of daily compensation,
beginning January 9, 2010.
Following an initial denial dated February 3, 2010, subsequently, in a February 8, 2010
decision, OWCP accepted that appellant sustained a thoracic strain and right shoulder strain on
October 27, 2009. In reports dated January 19 and 29, 2010, Dr. Kamson diagnosed cervical
radiculopathy, cervical spondylosis, cervicalgia, shoulder pain and brachial neuritis and
continued to advise that appellant could work six hours of modified duty daily. In a January 28,
2010 letter, he reported the history of injury and advised that, based on appellant’s clinical
presentation, objective physical findings and radiological findings, his diagnoses of cervical
radiculopathy due to right C6-7 and C7-T1 stenosis with intraforaminal disc protrusion, thoracic
strain and right shoulder sprain/strain were findings that occurred after the October 27, 2009
incident. Dr. Kamson stated that the thoracic strain was a temporary condition manifested by
myofascial pain. On February 12, 2010 he released appellant to eight hours of modified duty.
Appellant accepted an eight-hour position answering telephones and performing customer
service and administrative duties on February 22, 2010.
A February 26, 2010 MRI scan study of the thoracic spine demonstrated disc osteophytes
at T6-7 and T7-8. A right shoulder MRI scan that day demonstrated rotator cuff tendinopathy
without full thickness tear, long head of the biceps brachii tendinopathy, subcoracoid bursitis and
a slight increased signal in the vicinity of the anterosuperior labrum. Dr. Kamson performed an
additional epidural injection on March 13, 2010. On March 14, 2010 he advised that appellant
continued to have residuals of the accepted right shoulder strain and thoracic strain, based on the
February 26, 2010 MRI scan studies. Dr. Kamson concluded that these conditions were not
preexisting.
In an undated statement, James Haslett, supervisor of customer service, advised that
based on the restrictions provided, there was no work available for the period December 16
to 30, 2009. He noted that appellant returned to work on January 2, 2010.
In March 2010, OWCP referred appellant to Dr. L. David Rutberg, a Board-certified
neurosurgeon. In an April 15, 2010 report, Dr. Rutberg noted the history of injury, his review of
the statement of accepted facts and medical record and appellant’s complaints of aching in the
right shoulder. He noted that appellant’s right shoulder was taped and that he had nonanatomic
hypesthesias over the chest and face. Examination of the cervical, thoracic and lower spine was
unremarkable except for tenderness over the trapezial area on the right with no spasm and 5/5
muscle strength in the upper and lower extremities. Dr. Rutberg advised that throughout the
examination there seemed to be symptom magnification. He reviewed CD’s of the imaging
studies and diagnosed sprain of the thoracic spine, sprain of the right shoulder, minimal
degenerative disc disease and facet disease of the cervical spine, opining that this was on a wear-

3

and-tear-disease-of-life basis and not in any way exacerbated by the October 27, 2009 work
injury. Dr. Rutberg also diagnosed degenerative changes of the right shoulder and thoracic area,
more probably than not a disease of life with no association or exacerbation by the October 27,
2009 employment injury. He concluded that there were no residuals of the accepted thoracic
sprain and right shoulder strain and that appellant had no work restrictions. In an attached work
capacity evaluation, Dr. Rutberg advised that appellant could work eight hours a day with eight
hours of sitting and twisting. Walking, standing, reaching, reaching above shoulder, bending,
stooping repetitive movements of the wrists and elbow, pushing, pulling, lifting were limited to
four hours daily; operating a motor vehicle at work to six hours daily; operating a motor vehicle
to and from work to three hours daily; and squatting, kneeling and climbing to two hours daily,
with a 35-pound weight restriction. Appellant was to be given 10 minute breaks every two to
three hours.
The record also contains evidence regarding a November 2, 2002 motor vehicle accident
and follow-up care in which appellant sustained a neck and arm strain.
By decision dated May 4, 2010, OWCP denied appellant’s claim for 54 hours of
monetary compensation for the period December 14, 2009 to February 6, 2010 on the grounds
that the medical evidence did not support that disability was due to the accepted conditions.3
On May 27, 2010 appellant requested a hearing and submitted additional evidence. In a
June 7, 2010 statement, he asserted that previous claims for neck conditions, adjudicated under
file numbers xxxxxx523 and xxxxxx525, should be combined with the instant claim and that the
wrong legal standard was used in determining causation. In a December 11, 2009 treatment
note, Dr. Kamson reiterated his diagnosis of brachial neuritis or radiculitis. In reports dated
April 30, May 24 and June 21, 2010, he advised that appellant could work eight hours a day with
restrictions to his physical activities. In a June 21, 2010 treatment note, Dr. Kamson stated that
he did not concur with the “[Independent Medical Evaluation] IME” report and was of the
opinion that appellant’s condition was not yet fixed and stable. He provided physical
examination findings and diagnosed cervicalgia, brachial neuritis or radiculitis and thoracic or
lumbosacral neuritis or radiculitis.
On June 10, 2010 Mr. Haslett again advised that no light duty was available for appellant
from December 14, 2009 to January 2, 2010.
At the hearing, held on October 21, 2010, appellant described the October 27, 2009 injury
and reiterated his argument that his neck claims should be combined and that the wrong legal
standard was used in determining causation. In an October 4, 2010 treatment note, submitted
after the hearing, Dr. Kamson reiterated his findings and conclusions. In November 19, 2010
correspondence, appellant asserted that his condition had changed drastically following the
October 27, 2009 injury.

3

The decision contained a chart for all periods claimed through April 9, 2010, which included intermittent
compensation that had been paid. In an April 30, 2010 decision, OWCP denied appellant’s claim for 1.50 hours on
March 8, 2010 and 3.15 hours on March 12, 2010 because medical evidence did not support the claim. Appellant
did not appeal that decision.

4

By decision dated January 7, 2011, OWCP’s hearing representative found that the
medical evidence did not support the claimed intermittent disability beginning December 14,
2009 and affirmed the May 4, 2010 decision.
On December 15, 2011 appellant, through his attorney, requested reconsideration.
Counsel asserted that no work was available for appellant within his restrictions for the period
December 16 to 31, 2009, and that the January 28, 2010 modified job offer was for only six
hours a day. He further asserted that appellant’s cervical conditions should be accepted, that the
statement of accepted facts provided Dr. Rutberg was incomplete because it omitted additional
accepted conditions, that his opinion was equivocal and not rationalized, and that OWCP applied
an incorrect legal standard regarding causation. Counsel further noted that in 2005 Dr. Rutberg
had been expelled from his professional association for unprofessional conduct.
In a November 6, 2010 treatment note, Dr. Kamson reiterated his findings and
conclusions, noting that appellant continued to have residuals of his employment injury and
could not resume unrestricted work. On May 9, 2011 he indicated that appellant had resumed
full duty. In an August 7, 2010 duty status report, Dr. Kamson advised that appellant’s condition
was unchanged. He provided physical restrictions and advised that appellant should avoid
weight on the shoulder. In an August 17, 2011 report, Dr. Archie Adams, a Board-certified
family physician, advised that appellant was injured on August 13, 2011 while closing a mail
truck door. He diagnosed neck, thoracic and lumbar sprains and provided physical restrictions.
On August 24, 2011 Dr. Alinea noted a complaint of neck and right arm pain and thoracic pain.
He provided physical examination findings and diagnosed neck, thoracic and lumbar sprains and
attached a duty status report with physical restrictions.
In a merit decision dated February 24, 2012, OWCP denied modification of the prior
decisions. It disagreed with appellant’s arguments on appeal and found that the medical
evidence did not support that intermittent disability from December 14, 2009 to February 6, 2010
was causally related to the accepted work conditions.
LEGAL PRECEDENT
Under FECA the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.4 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA5 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.6 Whether a particular injury causes an employee to be disabled

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

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

5

for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.7
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.8 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.9
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.10 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.11 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.12
ANALYSIS
The Board finds this case is not in posture for decision. OWCP accepted that on
October 28, 2009 appellant sustained a thoracic strain and right shoulder strain. Appellant is
claiming wage loss for 54 hours during the period December 14, 2009 to February 6, 2010.
Although OWCP referred appellant to Dr. Rutberg in March 2010 for a second-opinion
evaluation, it did not ask him to comment on the period of claimed disability. While it requested
him to evaluate appellant’s condition relevant to his accepted condition, OWCP failed to request
Dr. Rutberg’s opinion as to appellant’s disability status during the specific period from
December 9, 2009 to February 6, 2010. Dr. Rutberg’s April 15, 2010 report is therefore
irrelevant to the merit issue in this case. It should be noted, however, that he found tenderness
over the right trapezius area on physical examination.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares
7

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

10

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

11

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

12

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

6

responsibility in the development of the evidence.13 Once OWCP undertakes development of the
record it must do a complete job procuring medical evidence that will resolve the relevant issues
in the case.14 The case shall therefore be remanded to OWCP. On remand, OWCP shall request
that Dr. Rutberg provide an opinion as to whether appellant had any physical restrictions due to
the accepted conditions for the specific period of disability claimed. Regarding appellant’s
assertion on appeal that Dr. Rutberg’s opinion should not be credited because he was expelled
from a professional association in 2005, he is Board-certified in neurosurgery, and there is no
indication that he was not licensed to practice medicine at the time of the 2010 examination.
Due to the Board’s posture in this decision, appellant’s further arguments on appeal need not be
addressed.
On remand, OWCP should also adjudicate appellant’s entitlement to wage loss for
attending appropriate medical treatment.15 After this and such further development deemed
necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established that he was entitled to monetary compensation during the period December 14, 2009
through February 6, 2010, due to the accepted conditions.

13

See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

14

Richard F. Williams, 55 ECAB 343, 346 (2004).

15

5 U.S.C. § 8105. Any leave used cannot be compensated until it is converted to leave without pay. For a
routine medical appointment, a maximum of four hours of compensation is usually allowed. See William A. Archer,
supra note 8.

7

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: July 2, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 15-0583
Issued: August 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 23, 2015 appellant, through counsel, filed a timely appeal from a
November 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she sustained bilateral carpal
tunnel syndrome causally related to her March 14, 2002 employment injury; and (2) whether she
was disabled from March 29 to July 15, 2003 due to her accepted work injury.
FACTUAL HISTORY
On March 29, 2002 appellant, then a 46-year-old field representative, filed a traumatic
injury claim alleging that on March 14, 2002 she sustained neck sprain and other conditions
1

5 U.S.C. § 8101 et seq.

when her automobile was struck from behind by another vehicle. OWCP accepted her claim for
cervical strain, a cervical herniated nucleus pulposus, lumbar strain, and post-traumatic
headaches.2
In a report dated June 5, 2002, Dr. Stuart G. Dubowitch, an osteopath, reviewed
appellant’s history of a March 14, 2002 motor vehicle accident. He diagnosed post-traumatic
cervical disc herniations, post-traumatic bilateral carpal tunnel syndrome, and a post-traumatic
exacerbation of a preexisting herniated L4-5 disc with radiculopathy. In a form report of the
same date, Dr. Dubowitch attributed the diagnosed conditions to the motor vehicle accident. On
July 17, 2002 he diagnosed post-traumatic bilateral carpal tunnel syndrome, and recommended
surgery. In a report dated October 16, 2002, Dr. Dubowitch diagnosed post-traumatic bilateral
carpal tunnel syndrome and cervical and lumbar disc herniations with radiculopathy. He noted
that electromyogram studies showed radiculopathy at C5 and C6 and bilateral carpal tunnel
syndrome.
Appellant underwent a right carpal tunnel release on November 7, 2002. In progress
reports dated November 2002 through February 2003, Dr. Dubowitch diagnosed post-traumatic
bilateral carpal tunnel syndrome, post-traumatic cervical radiculopathy, a post-traumatic cervical
disc herniation at C4-5, and a post-traumatic lumbar disc herniation. He discussed appellant’s
progress post right carpal tunnel release and, on January 21, 2003, recommended a left carpal
tunnel release.
Appellant underwent a left carpal tunnel release on March 20, 2003. In a progress report
dated April 1, 2003, Dr. Dubowitch noted that he was treating her for injuries sustained in a
March 14, 2002 motor vehicle accident. He diagnosed post-traumatic injuries to the lumbar and
cervical spine, status post right carpal tunnel decompression, and left carpal tunnel
decompression surgery.
On April 15, 2003 Dr. Joan F. O’Shea, a Board-certified neurosurgeon, discussed
appellant’s history of a 1998 work injury to her back and a March 2002 motor vehicle accident
that “increased her low back pain and caused new right leg pain, neck and right arm pain.”3 On
examination she found full strength of the extremities with reduced sensation of the right arm
posteriorly and a positive right Spurling’s maneuver. Dr. O’Shea recommended updated
diagnostic studies and a possible anterior cervical fusion and discectomy at C5-6 and C6-7.
In a progress report dated April 29, 2003, Dr. Dubowitch found that appellant’s left hand
was healing well after the carpal tunnel decompression, but that she still had “significant
problems referable to the neck and back secondary to her disc herniations.”
On June 24, 2003 Dr. Dubowitch found that appellant’s hands had healed well after her
surgeries but that she had some residual tenderness and weakness. He diagnosed a post2

By decision dated May 23, 2002, OWCP denied appellant’s claim after finding that the medical evidence was
insufficient to show that she sustained a diagnosed condition due to the March 14, 2002 motor vehicle accident. On
June 9, 2003 an OWCP hearing representative reversed the May 23, 2002 decision and accepted the claim for
cervical strain, a cervical herniated disc, lumbar strain, and post-traumatic headaches.
3

On April 7 and June 2, 2003 Dr. David M. Heyman, an osteopath, administered a lumbar epidural injection.

2

traumatic disc herniation, an exacerbation of a lumbar disc herniation with radiculopathy, and
status post bilateral carpal tunnel decompressions.
In a form report dated July 15, 2003, Dr. William H. Bromley, a chiropractor, diagnosed
a disc herniation at C4-5, radiculopathy at C5-6, a disc herniation at L4-5, radiculopathy at L5,
and bilateral carpal tunnel syndrome. He checked “yes” that the condition was employment
related and indicated that appellant was disabled form November 7 to 13, 2002 after her right
carpal tunnel surgery and from March 20 to 31, 2003 after her left carpal tunnel surgery.
On July 17, 2003 Dr. O’Shea performed an anterior cervical discectomy and fusion at
C5-6 and C6-7.
In a letter dated January 31, 2004, appellant’s private employing establishment related
that she worked 40 hours a week as a customer service representative from April 15, 2002 until
July 15, 2003.
By decision dated February 19, 2004, OWCP found that appellant did not establish that
she was disabled beginning July 17, 2003 causally related to her March 14, 2002 work injury. It
noted that she stopped working for the employing establishment on April 15, 2002 and obtained
private employment.
Following a preliminary review on October 15, 2004, an OWCP hearing representative
set aside the February 19, 2004 decision. He found that the reports from Dr. Dubowitch and
Dr. O’Shea were sufficient to warrant further development regarding whether appellant sustained
bilateral carpal tunnel syndrome and bilateral carpal tunnel releases, a cervical disc herniations
with surgery, and an aggravation of preexisting lumbar disc herniations due to her March 14,
2002 work injury. The hearing representative instructed OWCP to obtain an opinion from an
OWCP medical adviser and, if necessary, a second opinion physician regarding whether the
conditions and surgeries resulted from the motor vehicle accident.
On February 25, 2005 OWCP authorized cervical surgery and the proposed surgery for
the aggravation of a preexisting L4-5 disc herniation.
On February 7, 2006 OWCP advised appellant that it was referring her for a second
opinion examination to determine whether she sustained carpal tunnel syndrome due to her work
injury and to determine if she had continued disability. By letter dated February 17, 2006, it
referred her to Dr. Xiaoping Ma, a Board-certified neurologist, for a second opinion
examination.
In a report dated March 6, 2006, Dr. Ma diagnosed bilateral carpal tunnel syndrome, a
history of bulging cervical discs after surgery, a lumbar disc herniation after a laminectomy,
possible failed back syndrome, and lumbar radiculopathy causing low back pain exacerbated by
appellant’s motor vehicle accident. She attributed the diagnosed conditions to the March 14,
2002 work injury and opined that appellant was permanently disabled.
In a report dated August 5, 2010, Dr. Steven H. Ressler, an anesthesiologist, diagnosed
status post cervical fusion with bilateral radiculopathy of the upper extremities, status post

3

lumbar discectomy with radiculopathy, and bilateral carpal tunnel syndrome. He advised that
appellant was disabled from employment.
On August 19, 2011 OWCP paid appellant compensation for total disability from July 17,
2003 through August 2, 2011.
On March 16, 2012 OWCP referred appellant to Dr. Kenneth Heist, an osteopath, to
determine whether appellant had continuing disability or residuals of her work injury or any
other employment-related diagnoses.
On March 16, 2012 appellant filed a claim for compensation for total disability from
March 29 to July 15, 2003.
On March 20, 2012 Dr. Ressler related that he had returned appellant to work in error and
opined that she was disabled from her job duties.
In a report dated March 30, 2012, Dr. Heist diagnosed resolved sprains of the cervical,
dorsal, and lumbar spine, and degenerative cervical, dorsal, and resolved cervical, and lumbar
degenerative disc disease. He found no objective evidence of bilateral carpal tunnel syndrome, a
brain injury, dropped bladder, or fibromyalgia. Dr. Heist advised that appellant could resume
work without restrictions considering only her employment injury.
By decision dated May 24, 2012, OWCP determined that appellant was not entitled to
compensation from March 1 to 15, 2012. It found that the medical evidence was insufficient to
show that she was disabled as a result of her March 14, 2002 employment injury.
In a decision dated June 7, 2012, OWCP denied appellant’s claim for compensation from
March 29 to July 15, 2003.
Following a preliminary review, on August 14, 2012 an OWCP hearing representative set
aside the May 24, 2012 decision. She found that OWCP did not consider Dr. Heist’s opinion
prior to reaching its determination.
By decision dated December 19, 2012, OWCP again denied appellant’s claim for
compensation from March 29 to July 15, 2003. It found that Dr. Ressler, in his March 20, 2012
report, did not provide an opinion on causation and that Dr. Heist found that appellant could
return to work without restrictions. OWCP also noted that Dr. Heist determined that appellant
had no objective evidence of bilateral carpal tunnel syndrome or other conditions due to her
work injury.
By decision dated February 1, 2013, OWCP denied appellant’s claim for compensation
from July 16 to August 15, 2012.
On February 11, 2013 appellant, through counsel, requested an oral hearing.
On March 7, 2013 OWCP referred appellant to Dr. Jeffrey Pollock, a Board-certified
neurologist, for a second opinion examination regarding the extent of her current condition and
any disability.

4

Following a preliminary review, in a decision dated March 7, 2013, an OWCP hearing
representative vacated the December 19, 2012 decision. He found that OWCP had not formally
adjudicated the issue of whether appellant sustained bilateral carpal tunnel syndrome due to her
March 14, 2002 employment injury prior to determining if she was entitled to wage-loss
compensation from March 29 to July 15, 2003. The hearing representative noted that Dr. Ma’s
opinion supported that appellant sustained employment-related carpal tunnel syndrome but found
that Dr. Ma’s opinion was not sufficiently rationalized to meet her burden of proof. He
remanded the case for OWCP to consider whether appellant’s bilateral carpal tunnel syndrome
and resulting surgeries were due to her motor vehicle accident. The hearing representative found
that OWCP should reach this determination prior to adjudicating appellant’s claim for disability
from March 29 to July 15, 2003.
In a report dated March 25, 2013, Dr. Pollock discussed appellant’s history of a work
injury and subsequent medical treatment. He found that her carpal tunnel syndrome was
unrelated to her work injury as the condition developed over time. Dr. Pollack stated,
“[Appellant] specifically tells me that she has developed that problem for a third time and may
need further treatment. There is absolutely no causal relationship between any current symptoms
of carpal tunnel syndrome and the accident of March 14, 2002 at this late date after the
accident.”
On March 29, 2013 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, to determine whether she sustained carpal tunnel syndrome due to her
March 14, 2002 employment injury.
On April 18, 2013 Dr. Ressler reviewed the opinion of Dr. Heist.
appellant was disabled from work as a result of chronic pain syndrome.

He related that

On April 12, 2013 Dr. Askin found that appellant had no further disability or need for
medical treatment due to her March 14, 2002 work injury. In a supplemental report dated May 1,
2013, he stated, “On an anatomic basis carpal tunnel syndrome is caused by thickening of the
peritendinous tissues within the carpal tunnel which when sufficiently thickened take up the
available space and secondarily compress the median nerve. There is no reason to attribute such
thickened tissues to the nature of the injury described by [appellant].”
By decision dated July 1, 2013, OWCP vacated the May 24, 2012 and February 1, 2013
decisions after reopening the case on its own motion. It noted that appellant had received
disability compensation from July 17, 2003 through February 29, 2012 and thus it had the burden
to terminate compensation. OWCP paid her compensation for total disability retroactive to
March 1, 2012.
In another decision also dated July 1, 2013, OWCP found that appellant did not sustain
bilateral carpal tunnel syndrome or disability from March 29 to July 15, 2003 due to her
March 14, 2002 motor vehicle accident. It determined that Dr. Askin’s opinion constituted the
weight of the evidence and supported that she did not sustained carpal tunnel syndrome or the
need for surgeries due to her work injury.

5

On July 8, 2013 appellant, through counsel, requested an oral hearing.4 Following an
October 30, 2013 hearing, by decision dated December 16, 2013, the hearing representative
vacated the July 1, 2013 decision finding that appellant had not established carpal tunnel
syndrome. She noted that OWCP did not include the history of appellant’s carpal tunnel
surgeries in the statement of accepted facts. The hearing representative further found that
Dr. Pollock relied upon an inaccurate history of her undergoing additional surgery for carpal
tunnel syndrome in 2012 and that Dr. Askin’s opinion was not fully rationalized and failed to
discuss Dr. Dubowitch’s July 5, 2002 opinion. She instructed OWCP on remand to provide
Dr. Askin with an updated statement of accepted facts and request that he review
Dr. Dubowitch’s June 5, 2002 opinion and provide a reasoned opinion regarding whether her
bilateral carpal tunnel syndrome and carpal tunnel releases were work related and, if so, whether
she sustained any disability from employment.
On December 24, 2013 OWCP prepared an updated statement of accepted facts that
indicated that appellant underwent right and left carpal tunnel releases in 2003.
In a supplemental report dated January 8, 2014, Dr. Askin related that carpal tunnel
syndrome occurred due to compression of the median nerve at the carpal tunnel by “thickened
tenosynovial tissues.” He noted that the thickening of the tissues usually occurred as a result of
aging. Dr. Askin asserted that a nerve could experience a contusion as a result of trauma, such as
holding the steering wheel during an accident, but not “compression neuropathy,” the definition
of carpal tunnel syndrome. He concluded that appellant’s motor vehicle accident did not result
in carpal tunnel syndrome.
By decision dated April 10, 2014, OWCP found that appellant had not established that
she sustained bilateral carpal tunnel syndrome and resulting disability from March 29 to July 15,
2003 as a result of her March 14, 2002 motor vehicle accident. It determined that Dr. Askin’s
opinion represented the weight of the evidence and showed that her condition was not related to
her employment.
On April 15, 2014 appellant, through counsel, requested an oral hearing. At the hearing,
held on August 15, 2014, counsel argued that Dr. Askin’s opinion was general in nature and
failed to address Dr. Dubowitch’s report. He contended that the record contained at least a
conflict between Dr. Askin and Dr. Dubowitch.
By decision dated November 5, 2014, an OWCP hearing representative affirmed the
April 10, 2014 decision. He found that Dr. Askin’s report represented the weight of the evidence
and established that appellant’s carpal tunnel syndrome, surgeries, and disability from March 29
to July 15, 2003 were not related to her accepted work injury.
On appeal, counsel argues that OWCP should have accepted carpal tunnel syndrome as
work related as Dr. Dubowitch, appellant’s attending physician, and Dr. Ma, an OWCP referral
physician, found that appellant had bilateral carpal tunnel due to her March 14, 2002 work
injury. He maintains that at a minimum the record contains a conflict in opinion.
4

In a report dated September 10, 2013, Dr. Ressler listed appellant’s current diagnoses, including a history of
bilateral carpal tunnel syndrome.

6

LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty7 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
OWCP relied upon the opinion of Dr. Askin, its referral physician, in finding that
appellant did not establish that she sustained bilateral carpal tunnel syndrome as a result of her
March 14, 2002 motor vehicle accident.
In a report dated April 12, 2013, Dr. Askin advised that appellant had no condition or
disability due to her work injury. On May 1, 2013 he explained that carpal tunnel syndrome
occurred due to thickening of tissues rather than to an injury such as she experienced. In a report
dated January 8, 2014, Dr. Askin opined that the thickening of tenosynovial tissues that caused
carpal tunnel syndrome most often occurred due to aging and that compression neuropathy did
not result from holding a steering wheel during a motor vehicle accident. He based his opinion
on a review or the factual and medical background and provided rationale for his opinion by
explaining that carpal tunnel syndrome developed over time rather than as a result of a traumatic
event. The Board finds that Dr. Askin’s opinion has reliability, probative value and convincing
quality regarding the relevant issue of causation, and thus constitutes the weight of the evidence
and establishes that appellant did not sustain employment-related bilateral carpal tunnel
syndrome.9
On appeal counsel alleges that OWCP should have accepted bilateral carpal tunnel
syndrome based on the reports of Dr. Dubowitch, her attending physician, and Dr. Ma, an
OWCP referral physician.10 In a report dated June 5, 2002, Dr. Dubowitch diagnosed posttraumatic cervical disc herniations, post-traumatic bilateral carpal tunnel syndrome, and a posttraumatic exacerbation of a preexisting herniated L4-5 disc with radiculopathy. In an
accompanying form report, he attributed the conditions to appellant’s March 14, 2002 motor
vehicle accident. Dr. Dubowitch submitted subsequent reports diagnosing post-traumatic
5

John J. Montoya, 54 ECAB 306 (2003).

6

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

7

Supra note 5.

8

Judy C. Rogers, 54 ECAB 693 (2003).

9

See T.N., Docket No. 14-1331 (issued February 18, 2015).

10

On March 25, 2013 Dr. Pollock, another OWCP referral physician, advised that appellant did not have carpal
tunnel syndrome due to her work injury. He explained that the condition arose over time and further noted that she
was having symptoms of carpal tunnel syndrome for the third time. Dr. Pollock opined that there was no causal
relationship between any current carpal tunnel syndrome and the work injury.

7

bilateral carpal tunnel syndrome and recommending surgical releases. He did not, however,
provide a rationalized opinion explaining the causal relationship between her bilateral carpal
tunnel syndrome and the March 14, 2002 work injury. Dr. Dubowitch 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.11
OWCP referred appellant to Dr. Ma for a second opinion examination regarding whether
appellant sustained bilateral carpal tunnel syndrome due to her March 14, 2002 employment
injury. On March 6, 2006 Dr. Ma diagnosed bilateral carpal tunnel syndrome, lumbar disc
herniation post laminectomy, and possible failed back syndrome. He attributed the diagnosed
conditions to appellant’s March 14, 2002 work injury. Although Dr. Ma supported causal
relationship, he did not provide sufficient medical rationale explaining the basis of his conclusion
regarding the causal relationship between the bilateral carpal tunnel syndrome and the March 14,
2002 employment injury.12 Consequently, as found by the hearing representative, Dr. Ma’s
opinion was not sufficient to resolve the issue of whether appellant sustained carpal tunnel
syndrome as a result of her March 14, 2002 employment-related motor vehicle accident.
On August 5, 2010 Dr. Ressler diagnosed status post cervical fusion with upper extremity
radiculopathy, status post lumbar discectomy with radiculopathy, and bilateral carpal tunnel
syndrome. He found that appellant was totally disabled. Dr. Ressler did not address the cause of
the diagnosed conditions and thus his report is of little probative value.13
On appeal counsel also contends that a conflict exists between Dr. Dubowitch and
Dr. Askin regarding whether appellant sustained employment-related bilateral carpal tunnel
syndrome. As discussed, however, Dr. Askin’s report is entitled to the weight as Dr. Dubowitch
did not provide rationale for his causation determination.
LEGAL PRECEDENT -- ISSUE 2
The term disability as used in FECA14 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.15 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.16 When the medical evidence establishes that the
11

See John W. Montoya, 54 ECAB 306 (2003).

12

Medical evidence that states a conclusion but does not offer any rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship. See J.F., Docket
No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).
13

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion on causal
relationship is of limited probative value).
14

5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.5(f).

15

Paul E. Thams, 56 ECAB 503 (2005).

16

Id.

8

residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.17 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.18
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained a cervical herniated nucleus pulposus, lumbar
strain, and post-traumatic headaches in a March 14, 2002 motor vehicle accident. Appellant
stopped work on March 14, 2002. She worked intermittently in private employment until
July 2003. Appellant underwent a cervical discectomy and fusion at C5-6 and C6-7 on July 18,
2003, and received compensation for total disability from OWCP from July 17, 2003 onward.
On March 16, 2002 appellant filed a claim for compensation for total disability from
March 29 to July 15, 2003. As held above, she has not established that she sustained bilateral
carpal tunnel syndrome due to her March 14, 2002 work injury. Consequently, appellant must
show that she was disabled for the period in question as a result of her accepted cervical strain,
cervical herniated nucleus pulposus, lumbar strain, and post-traumatic headaches.
In a progress report dated April 1, 2003, Dr. Dubowitch noted that he was treating
appellant for injuries sustained in a March 14, 2002 motor vehicle accident. He diagnosed posttraumatic injuries to the lumbar and cervical spine, status post right carpal tunnel decompression,
and left carpal tunnel decompression surgery. In a progress report dated April 29, 2003,
Dr. Dubowitch found that appellant’s left hand was healing well after the carpal tunnel
decompression but that she still had “significant problems referable to the neck and back
secondary to her disc herniations.” In a report dated June 24, 2003, he diagnosed a posttraumatic disc herniation, an exacerbation of a lumbar disc herniation with radiculopathy, and
status post bilateral carpal tunnel decompressions. Dr. Dubowitch did not address the relevant
issue of disability from employment and thus his reports are of diminished probative value.19
On April 15, 2003 Dr. O’Shea discussed appellant’s history of a 1998 work injury to her
back and a March 2002 motor vehicle accident that “increased her low back pain and caused new
right leg pain, neck, and right arm pain.”20 On examination she found full strength of the
17

Id.

18

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

19

Sandra D. Pruitt, 57 ECAB 126 (2005) (the issue of whether a claimant’s disability is related to an accepted
condition is a medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.)
20

Dr. Heyman administered lumbar epidural injections on April 7 and June 2, 2003. Appellant has not, however,
claimed that she time lost from work due to medical treatment.

9

extremities with reduced sensation of the right arm posteriorly and a positive right Spurling’s
maneuver. Dr. O’Shea recommended updated diagnostic studies and a possible anterior cervical
fusion and discectomy at C5-6 and C6-7. She did not address appellant’s ability to work;
consequently, her reports are of diminished probative value on the issue of whether appellant
was disabled from March 29 to July 15, 2003.21
In a form report dated July 15, 2003, Dr. Bromley, a chiropractor, diagnosed a disc
herniation at C4-5, radiculopathy at C5-6, a disc herniation at L4-5, radiculopathy at L5, and
bilateral carpal tunnel syndrome. He checked “yes” that the condition was employment related
and indicated that appellant was disabled form November 7 to 13, 2002 after her right carpal
tunnel surgery and from March 20 to 31, 2003 after her left carpal tunnel surgery. Section
8101(2) of FECA provides that 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 correct a subluxation as demonstrated by x-ray to exist.22 Dr. Browley did not diagnose
a subluxation and thus his report is of diminished probative value.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds appellant has not established that she sustained bilateral carpal tunnel
syndrome causally related to her March 14, 2002 employment injury and has not established that
she was disabled from March 29 to July 15, 2003 due to her accepted work injury.

21

See J.S., Docket No. 14-1929 (issued February 23, 2015); Deborah L. Beatty, 54 ECAB 340 (2003).

22

5 U.S.C. § 8101(2); see also I.C., Docket No. 14-1927 (issued February 13, 2015).

10

ORDER
IT IS HEREBY ORDERED THAT the November 5, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is affirmed.
Issued: August 26, 2015
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2408
Issued: April 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 26, 2007 appellant filed a timely appeal from a June 29, 2007 merit
decision of the Office of Workers’ Compensation Programs that denied his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award issue.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he had a
ratable hearing loss entitling him to a schedule award and hearing aids.
FACTUAL HISTORY
On August 17, 2006 appellant, then a 56-year-old aerospace engineering technician, filed
an occupational disease claim stating that he developed mild to moderate high frequency
binaural hearing loss in the performance of duty. He advised that he retired in June 2006 and his
last noise exposure was on July 15, 1986. Appellant explained that his hearing loss was
diagnosed from audiometric testing data collected during his retirement “out processing.” He

and the employing establishment submitted personnel information and audiometric testing results
which established that appellant was employed as an aircraft mechanic from 1978 to 1986 and as
an aerospace engineering technician from 1986 to 2006 and was exposed to noise from various
sources between 1978 and 1986.
On April 16, 2007 the Office referred appellant, along with a statement of accepted facts,
to Dr. Sean B. Peppard, an otolaryngologist, for a second opinion examination to determine
whether appellant had residual hearing loss due to noise exposure during his federal civilian
employment.
In an April 25, 2007 form report, Dr. Peppard noted that a recent hearing examination,
conducted in December 2005, showed that appellant had mild to moderate high frequency
hearing loss. He advised that audiometric testing conducted in 1978, when appellant’s noise
exposure began, was normal. Dr. Peppard concluded that appellant’s mild to moderate high
frequency hearing loss was beyond what might normally be observed in an individual of
appellant’s age. He concluded that the noise to which appellant was exposed while on the job
was sufficient to cause his hearing loss. Dr. Peppard diagnosed high frequency sensorineural
hearing loss and opined that the hearing loss was caused by noise exposure during appellant’s
federal civilian employment. He recommended a hearing aid fitting. An April 25, 2007
audiogram conducted on Dr. Peppard’s behalf showed appellant’s decibel losses at frequencies
of 500, 1,000, 2,000 and 3,000 cycles per second (cps). The audiogram reflected the following
decibel losses: 10, 5, 10 and 15 for the right ear and 10, 5, 15 and 20 for the left ear.
On April 30, 2007 the Office accepted appellant’s claim for binaural hearing loss due to
noise.
On June 21, 2007 appellant claimed a schedule award.
In a June 29, 2007 memorandum, the Office medical adviser reviewed Dr. Peppard’s
otologic examination report. He applied the audiometric calibrations to the hearing loss
computation methods outlined within the American Medical Association, Guides to the
Evaluation of Permanent Impairment, fifth edition (A.M.A., Guides) and determined that
appellant had zero percent monaural hearing loss in the right ear and zero percent monaural
hearing loss in the left ear. The medical adviser concluded that appellant had zero percent
binaural hearing loss and no ratable impairment. He checked a box indicating that hearing aids
were not authorized.
By decision dated June 29, 2007, the Office denied appellant’s request for a schedule
award on the grounds that the medical evidence reflected no ratable hearing impairment. The
Office found that the weight of the medical evidence did not support that appellant would benefit
from hearing aids and denied additional medical benefits.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.5 Then the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.6 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss, and the total is divided by six to
arrive at the amount of the binaural hearing loss.8 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.9
ANALYSIS
The Office medical adviser applied the Office’s standard procedures, detailed above, to
the April 25, 2007 audiogram performed on Dr. Peppard’s behalf. Appellant’s April 25, 2007
audiogram tested decibel losses at the 500, 1,000, 2,000 and 3,000 cps levels and recorded
decibel losses of 10, 5, 10 and 15 respectively for the right ear. The total decibel loss in the right
ear is 40 decibels. When divided by 4, the result is an average hearing loss of 10 decibels. The
average loss of 10 decibels is reduced by the “fence” of 25 decibels to equal zero which when
multiplied by the established factor of 1.5, resulted in zero percent impairment for the right ear.
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (2002).

3

Id.

4

A.M.A. Guides 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

8

Id.

9

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

3

Testing for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps revealed
decibel losses of 10, 5, 15 and 20 decibels respectively, for a total decibel loss of 50 decibels.
When divided by four, the result is an average hearing loss of 12.5 decibels. The average loss of
12.5 decibels is reduced by the “fence” of 25 decibels to equal zero which when multiplied by
the established factor of 1.5, resulted in zero percent impairment for the left ear.
The Board finds that the Office medical adviser applied the proper standards to the
findings stated in Dr. Peppard’s April 25, 2007 report and audiogram. The result is that
appellant does not have a ratable hearing loss for schedule award purposes.
On appeal, appellant disputed the Office’s denial of his request for hearing aids. The
Office’s procedure manual provides that hearing aids will be authorized when hearing loss has
resulted from an accepted injury or disease if the attending physician so recommends.10 The
Board notes that the second opinion physician, Dr. Peppard, recommended that appellant be
fitted for hearing aids. However, the Office medical adviser indicated that hearing aids should
not be authorized. The medical adviser offered no explanation of his disagreement with the
second opinion physician and no reasoning in support of his conclusion that hearing aids should
not be authorized and the Office’s decision denying hearing aids also provided no further
reasoning. The Board finds that the record is unclear on the issue of whether hearing aids should
be authorized.
The Board notes that proceedings under the Act are not adversarial in nature. The Office
shares in the responsibility to develop the evidence and has an obligation to see that justice is
done.11 Accordingly, the Board finds that the case must be remanded to the Office for further
medical development on the question of whether appellant is entitled to hearing aids. Following
this and such other development as is deemed necessary, the Office shall issue an appropriate
merit decision regarding hearing aids should be authorized.
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss for schedule award
purposes. The Board further finds that the case must be remanded to the Office for further
development on the question of whether hearing aids should be authorized.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(2)
(October 1995).
11

Lyle Dayberry, 49 ECAB 369, 372 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part and the case is set aside and remanded in
part.
Issued: April 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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