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

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

Docket No. 19-0206
Issued: August 14, 2019

Case Submitted on the Record

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

JURISDICTION
On November 5, 2018 appellant, through counsel, filed a timely appeal from an
October 12, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
entitlement to a schedule award effective September 28, 2017 because he refused an offer of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On December 29, 2004 appellant, then a 45-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained a neck injury when engaging in repetitive
lifting while in the performance of duty. He indicated that he first became aware of his claimed
injury on July 1, 2004 and first realized that it was related to his federal employment on that same
date. Appellant began working in a light-duty position. OWCP accepted that he sustained cervical
spondylosis without myelopathy and displacement of cervical intervertebral disc myelopathy.3
On November 10, 2015 appellant underwent OWCP-approved cervical surgery, including
discectomies and foraminotomies at C3-4 and C4-5. Due to disability caused by this surgery,
OWCP paid him wage-loss compensation on the daily rolls commencing November 10, 2015 and
on the periodic rolls commencing November 15, 2015.
On November 8, 2016 OWCP referred appellant for a second opinion examination to
Dr. John Klein, a Board-certified orthopedic surgeon. It requested that Dr. Klein provide an
opinion regarding a treatment plan review, the extent of appellant’s disability, and, suitability for
vocational rehabilitation. In a December 20, 2016 report, he discussed appellant’s factual and
medical history and reported the findings of the physical examination he conducted on that date.
Dr. Klein indicated that appellant exhibited neck pain upon range of motion of his neck. He posited
that appellant had cervical stenosis, documented by diagnostic testing, which was aggravated by
his work. In response to a question regarding appellant’s physical limitations resulting from his
work-related disability, Dr. Klein noted, “The only restrictions that I would put on the patient are
that he is not allowed to do any pushing, pulling, lifting, squatting, kneeling, climbing, or twisting
at work.”4 He attached a December 20, 2016 work capacity evaluation (Form OWCP-5c) in which
he indicated that appellant was unable to perform his usual job. Dr. Klein indicated that, due to

3

OWCP paid appellant partial wage-loss compensation on the daily and periodic rolls for intermittent periods of
disability commencing April 14, 2005. Appellant stopped working for the employing establishment in late-2008 and
elected to receive Office of Personnel Management benefits in early January 2009. He had private employment as a
school crossing guard between 2009 and 2015 and elected to receive FECA benefits again in late-2015. Appellant
has a prior claim, filed under a separate claim number, for a 1998 injury that was accepted for right carpal tunnel
syndrome.
Dr. Klein indicated that, through vocational rehabilitation, appellant might be able to ﬁnd a job that is sedentary
in nature where he does not have to frequently lift, carry, push, or pull objects. He noted that a sedentary job would
involve sitting most of the time and indicated, “A sedentary job, I think, he would be able to do.”
4

2

his neck pain, appellant was limited to performing sedentary work for eight hours per day.5 He
provided further clarification regarding appellant’s ability to work by identifying limitations on
specific activities. Dr. Klein indicated that appellant could not perform any of the following
activities: lifting, pushing, pulling, twisting, bending, stooping, squatting, kneeling, and climbing.
He further indicated that appellant could perform the following activities for eight hours per day:
sitting, walking, standing, reaching above the shoulder level, and repetitive wrist/elbow motion.
On December 29, 2016 OWCP sent Dr. Klein a new work capacity evaluation form (Form
OWCP-5c), which contained a definition of sedentary work, and requested that he complete and
return the form in order to clarify the fact that he had indicated appellant could perform sedentary
work, but also completely restricted him from lifting, pushing, and pulling. The cover letter which
was attached to the new work capacity evaluation form discussed the definition of sedentary work
contained in the form. There is no indication in the case record that Dr. Klein responded to
OWCP’s request.
On January 13, 2017 the employing establishment offered appellant a job as a modified
mail handler on a full-time basis. The position included such duties as: walking up and down
aisles to visually check mail and replace mail trays weighing ½ pound (2 to 3 hours per day),
walking the work floor to count mail types and mark tallies (1 to 3 hours), checking delivery
confirmations and printing data (½ to 1½ hours), and occasionally answering the telephone. The
physical requirements of the position included: intermittent standing/walking for brief periods;
intermittent simple grasping, intermittent driving; intermittent writing, keyboarding up to 15
minutes at a time; and lifting/carrying up to ½ pound for 2 to 3 hours per day.
In a January 15, 2017 letter received by OWCP on January 20, 2017, appellant asserted
that he had several conditions, including obsessive compulsive disorder (OCD), post-traumatic
stress disorder (PTSD), and depression, which prevented him from working as a modified mail
handler. He submitted a January 19, 2017 report from Dr. Fred Wiggins, a clinical psychologist,
who indicated that appellant was a former patient who had been seen on October 20, 2015 and
February 10, 2016. Dr. Wiggins indicated that appellant had been diagnosed with unspecified
depressive disorder and other specified anxiety disorder with panic and OCD features. He advised
that these were “long standing conditions that have adversely affected his functional capacity in
occupational and social settings.” In a February 2, 2017 report, Dr. Robert Chalemian, a Boardcertified psychiatrist, indicated that he treated appellant for depressive and anxiety disorder in the
1990s.
In a February 2, 2017 letter, OWCP advised appellant of its determination that the modified
mail handler position offered by the employing establishment was suitable. It informed him that
the weight of the medical opinion evidence with respect to his ability to work rested with the

5

On the first page of the work capacity evaluation form, Dr. Klein also checked a box indicating that appellant
could work at the “Sedentary” strength level. The record contains a blank four-page copy of a work capacity
evaluation (Form OWCP-5c) which has a definition of the “Sedentary” strength level on its second page. In part,
sedentary work was defined as exerting up to 10 pounds of force occasionally or a negligible amount of force
frequently to lift, carry, push, pull, or otherwise move objects, including the human body.

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December 20, 2016 report of Dr. Klein.6 OWCP advised appellant that his wage-loss
compensation and entitlement to a schedule award would be terminated if he did not accept the
modified mail handler position or provide good cause for not doing so within 30 days of the date
of the letter.
In response, appellant subsequently submitted a January 26, 2017 note from Dr. Sheldon
Weiser, a Board-certified psychiatrist, who indicated that appellant had been his patient in the
1990s for anxiety and depression. In a February 26, 2017 report, Dr. Linda Russek, a clinical
psychologist, indicated that she evaluated appellant on an unspecified date. She noted that she
agreed with other providers’ diagnoses of PTSD and OCD and she questioned whether the risk
was worth the potential benefits in trying to get appellant back to work.
In a March 1, 2017 letter, appellant advised OWCP that he was refusing the modified mail
handler position because he had severe anxiety, major depressive disorder, OCD, and PTSD.
In a March 9, 2017 letter, OWCP informed appellant that his wage-loss compensation and
entitlement to a schedule award would be terminated if he did not accept the position or provide
good cause for not doing so within 30 days of the date of the letter. Appellant submitted records
from a psychiatric hospitalization in 1985 and treatment notes from Dr. Jennifer Treusch, a Boardcertified psychiatrist, which discussed her treatment of his psychiatric condition in 2015.
In a June 22, 2017 letter, OWCP advised appellant that his reasons for refusing to accept
the modified mail handler position offered by the employing establishment were unjustified. It
discussed the evidence submitted by appellant, but found that this evidence did not provide a valid
reason for refusing to accept the position. OWCP advised appellant that his wage-loss
compensation and entitlement to a schedule award would be terminated if he did not accept the
position within 15 days of the date of the letter. Appellant did not accept the modified mail handler
position within the allotted period.
Appellant submitted additional reports from attending Board-certified psychiatrists,
including reports from 2014 of a Dr. Maria Reckart and reports from 2016 of a Dr. Stephen
Streitfeld.
On September 22, 2017 the employing establishment advised OWCP that the modified
mail handler position remained available to appellant.
By decision dated September 28, 2017, OWCP terminated appellant’s wage-loss
compensation and entitlement to a schedule award effective September 28, 2017 because he
refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It determined that the weight
of medical evidence with respect to his ability to work rested with the December 20, 2016 report
of Dr. Klein. OWCP found that appellant did not submit a rationalized medical report showing
that a psychiatric condition prevented him from working in the modified mail handler position
which had been identified as suitable.

6
OWCP indicated that appellant had not submitted medical evidence sufficient to support his assertion that OCD,
PTSD, and depression prevented him from working as a modified mail handler.

4

On October 12, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. Appellant subsequently submitted an
undated report from Dr. George Goldman, a clinical psychologist, who discussed his evaluation of
appellant on October 19 and December 14, 2017. He posited that appellant’s OCD made it
impossible for him to work. During the hearing held on March 15, 2018, counsel reiterated that
appellant’s psychological conditions prevented him from performing any work.
By decision dated May 30, 2018, OWCP’s hearing representative affirmed OWCP’s
September 28, 2017 decision. She noted that the weight of the medical opinion evidence with
respect to appellant’s ability to work continued to rest with the December 20, 2016 report of
Dr. Klein.
On July 16, 2018 appellant, through counsel, requested reconsideration of the May 30,
2018 decision. Appellant submitted a June 10, 2018 note from Dr. Goldman who diagnosed
bipolar disorder, major depressive disorder, and OCD, and he indicated that appellant’s emotional
vulnerability and fragility made him a hazard to himself and others in a work environment.
By decision dated October 12, 2018, OWCP denied modification of the May 30, 2018
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits.7 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee is not entitled to compensation.8 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable.9 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment.10
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of
showing that such refusal or failure to work was reasonable or justified.11 Pursuant to section

7

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005).
8

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

9

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

10

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

11

20 C.F.R. § 10.517(a).

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10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.12
The determination of whether an employee is physically capable of performing a modified
assignment is a medical question that must be resolved by medical evidence.13 OWCP procedures
provide that acceptable reasons for refusing an offered position include withdrawal of the offer or
medical evidence of inability to do the work or travel to the job.14 In a suitable work determination,
OWCP must consider preexisting and subsequently-acquired medical conditions in evaluating an
employee’s work capacity.15
ANALYSIS
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and entitlement to a schedule award effective September 28, 2017 because he refused an offer of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
The employing establishment offered appellant a modified mail handler position in
January 2017 and OWCP determined it to be suitable in February 2017. The physical
requirements of the position included lifting/carrying up to ½ pound for 2 to 3 hours per day. The
record does not reveal that the position was temporary in nature.16
The Board notes, however, that the evidence of record does not show that appellant is
physically capable of performing the modified mail handler position offered by the employing
establishment and determined to be suitable by OWCP. In determining that appellant was
physically capable of performing the modified mail handler position, OWCP relied on the
December 20, 2016 opinion of Dr. Klein, the OWCP referral physician. The Board notes that
Dr. Klein did not provide a clear opinion that appellant could perform the lifting duties of the
modified mail handler position.
In his December 20, 2016 report, Dr. Klein noted, “The only restrictions that I would put
on the patient are that he is not allowed to do any pushing, pulling, lifting, squatting, kneeling,
climbing, or twisting at work.” He attached a December 20, 2016 work capacity evaluation form
(Form OWCP-5c) in which he indicated that appellant was not able to perform his usual job.
Dr. Klein advised that, due to his neck pain, appellant was limited to performing sedentary work

12

Id. at § 10.516.

13

M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-0319 (issued May 14, 2013).
15

See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).

16

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4c(5), 9 (June 2013).

6

for eight hours per day.17 He indicated that appellant could not perform any of the following
activities: lifting, pushing, pulling, twisting, bending, stooping, squatting, kneeling, and climbing.
In a December 29, 2016 e-mail, an OWCP official acknowledged that Dr. Klein’s
December 20, 2016 report was contradictory with respect to work restrictions. On December 29,
2016 OWCP sent Dr. Klein a new work capacity evaluation form, which contained a definition of
sedentary work, and requested that he complete and return the form in order to clarify the fact that
he had indicated that appellant could perform sedentary work, but also completely restricted him
from lifting, pushing, and pulling.
There is no indication in the case record that Dr. Klein responded to OWCP’s request for
a supplemental report and Dr. Klein’s opinion regarding appellant’s ability to perform the lifting
duties of the modified mail handler position offered by the employing establishment remain
unclear.
For these reasons, the Board finds that OWCP has not established that the modified mail
handler position offered by the employing establishment was suitable. Therefore, OWCP
improperly terminated appellant’s wage-loss compensation and entitlement to a schedule award
effective September 28, 2017 because he refused an offer of suitable work.18
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and entitlement to schedule award compensation effective September 28, 2017 because he refused
an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).

17

On the first page of the work capacity evaluation form, Dr. Klein also checked a box indicating that appellant
could work at the “Sedentary” strength level. As noted above, the record contains a blank four-page copy of a work
capacity evaluation form which has a definition of the “Sedentary” strength level on its second page. In part, sedentary
work was defined as exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift,
carry, push, pull, or otherwise move objects, including the human body. It is unclear whether Dr. Klein referenced
the second page of a work capacity evaluation form when he checked the box indicating that appellant could work at
the “Sedentary” strength level.
18

See supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the October 12, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 14, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Ana, CA, Employer
__________________________________________

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

Docket No. 18-0865
Issued: February 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 14, 2018 appellant filed a timely appeal from a September 15, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision dated June 20, 2016, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 15, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 10, 2015 appellant, then a 53-year-old computer forwarding system (CFS)
clerk, filed an occupational disease claim (Form CA-2) alleging that he sustained a neck condition
due to pushing, pulling, and lifting and keyboarding while in the performance of duty. He
indicated that he first became aware of his condition and realized that it was caused by factors of
his federal employment on September 2, 2015. Appellant did not initially stop work.
In a narrative statement, appellant explained that he had worked for the employing
establishment for 27 years. He noted that the last seven years, he worked as a CFS clerk and that
prior to that he worked as a distribution clerk. Appellant indicated that he had to do a lot of heavy
lifting, pushing, and pulling. He also noted that, at the present time, he was keyboarding for eight
hours a day. Appellant argued that he believed that all of these activities caused his neck injury.
In an October 7, 2015 report, Dr. Basimah Khulusi, Board-certified in physical medicine
and rehabilitation, related that appellant had been employed as a clerk from 1988 until the present
time. She explained that, over the course of his career, he worked in several positions including:
a distribution clerk and most recently, a CFS clerk. Dr. Khulusi noted the description and duties
of the CFS clerk, and advised that appellant had been working with restrictions for the past year
due to a previous April 8, 2014 low back injury under OWCP File No. xxxxxx959. She related
that he keyed mail for 8 to 10 hours a day. Dr. Khulusi related that appellant believed that his neck
condition was due to sitting at a desk and keying mail for 8 to 10 hours a day. She also indicated
that he was not sure of the exact time that his neck became symptomatic; however, he believed
that his initial symptoms occurred in April 2015. Dr. Khulusi explained that appellant indicated
that initially he believed that he had just a little muscle soreness and the pain would go away;
however, the pain in his neck continued to become more severe and he sought medical attention.
Dr. Khulusi provided examination findings and diagnosed right cervical radiculopathy,
cervical disc herniations, and permanent aggravation of degenerative disc disease of the neck as a
result of right cervical radiculopathy and cervical disc herniations. Regarding causation, she
opined that appellant had worked at the employing establishment as a clerk for 27 years.
Dr. Khulusi explained that his job activities had required lifting up to 70 pounds and pushing and
pulling of very heavy all-purpose containers. Furthermore, appellant worked in his most recent
position for the past seven years, which required that he key for four hours per day and perform
four hours of physical work, or eight hours of physical work when other employees were off work.
Dr. Khulusi explained that he had a low back injury in 2014 and since that time, he performed
sedentary duties, keying for eight hours a day.
Dr. Khulusi opined that appellant’s repetitive work activities day after day and year after
year, caused repetitive straining and spraining of the structures of the cervical spine, which resulted
in a cumulative trauma disorder that led to weakening of structures of the cervical spine with
weakening of the annuli containing the discs between vertebrae and weakening of the ligamentous

2

structures that hold the vertebrae together to provide stability of the cervical spine structure.
Furthermore, she explained that the body reacted to with degenerative changes to fuse the vertebrae
together to minimize movement between the vertebrae and thus to prevent more protrusion or
extrusion of the discs into the cervical spinal canal. Dr. Khulusi opined that appellant had
protrusions at multiple levels causing a mild compression of the spinal cord at multiple levels from
C3 to C7.
Dr. Khulusi explained that, when appellant was performing his keying tasks, he had to hold
his arms up in the air the whole time he was working, which led to static contractions of the cervical
musculature, and the muscles of the back that were innervated by cervical nerve roots. She opined
that, day after day, this led to a severe spraining of the structures and acceleration of the cervical
degeneration.
On December 21, 2015 OWCP referred appellant for a second opinion examination with
Dr. Michael Einbund, a Board-certified orthopedic surgeon. Dr. Einbund noted appellant’s history
of injury and treatment, examined appellant and provided findings. He diagnosed degenerative
disc disease of the cervical spine and opined that it was not work related. Dr. Einbund explained
that the performance of appellant’s work duties may have resulted in pain and may have revealed
his underlying condition. He noted that appellant had widespread degeneration of the cervical
spine with multiple levels of disc bulges and stenosis, which were degenerative in nature; however,
he opined that they would not have been the result of his job duties as a CFS clerk.
By decision dated February 9, 2016, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish a causal relationship between his medical
condition and factors of his federal employment. It explained that the weight of the evidence rested
with the second opinion physician, Dr. Einbund.
On March 2, 2016 Dr. Khulusi requested reconsideration on appellant’s behalf. She
explained that she had reviewed Dr. Einbund’s report and argued that his report did not contain
any medical reasoning “whatsoever” to reach his conclusions. Dr. Khulusi reviewed appellant’s
magnetic resonance imaging scan findings and argued that appellant had acceleration of his
degenerative condition. She requested that OWCP accept the diagnoses of: acceleration of
degenerative disc disease of the neck; multiple cervical disc protrusions as a result; multiple right
cervical radiculopathies as a result and permanent aggravation of degenerative disc disease of the
neck as a result.
Appellant also requested reconsideration on July 7, 2016.
By decision dated October 3, 2016, OWCP denied reconsideration finding that the
evidence submitted was insufficient to warrant review of its prior decision. It found that
Dr. Khulusi had not provided relevant legal argument or medical evidence not previously
considered.
On November 4, 2016 appellant requested reconsideration and submitted additional
medical evidence.
In an October 27, 2016 report, Dr. Khulusi argued that OWCP misinterpreted the law with
regard to whether appellant sustained work-related aggravation of his degenerative condition by
3

comparing his condition to the natural or traditional course of the condition, instead of to another
individual with an ordinary course of the disease. She explained that she had reviewed OWCP’s
Federal (FECA) Procedure Manual and had provided rationale to show how the underlying
condition could be accelerated by employment. Dr. Khulusi requested that OWCP review all of
her medical arguments and that OWCP accept appellant’s claim for acceleration of degenerative
disc disease of the neck, multiple cervical disc protrusions, multiple right cervical radiculopathies,
and permanent aggravation of degenerative disc disease of the neck.
Dr. Khulusi also provided treatment notes dated August 3 and October 10, 2016.
By decision dated January 27, 2017, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant merit review.
On March 14, 2017 appellant again requested reconsideration.
In a letter dated March 2, 2017, Dr. Khulusi argued that OWCP based its opinion upon
Dr. Einbund’s January 27, 2016 report. She indicated that a physician specializing in occupational
medicine was capable of providing an opinion on causal relationship, even if the attending
physician was not an orthopedist. Dr. Khulusi argued that a conflict existed and a referral should
be made to a referee physician, specializing in occupational medicine, to resolve the conflict.
OWCP also received Dr. Khulusi’s treatment notes dated March 9, 2016 to
February 15, 2017.
By decision dated June 5, 2017, OWCP denied appellant’s request for reconsideration.
On June 19, 2017 appellant again requested reconsideration and submitted a June 15, 2017
letter from Dr. Khulusi, wherein she argued that OWCP had abused its discretion in denying his
claim as she had provided the requisite rationale to support that his employment duties caused his
condition. Dr. Khulusi reiterated that he had worked at the employing establishment as a clerk
since 1988 and continuously. She explained that appellant had no prior cervical condition, but
developed his condition while working for the employing establishment. While OWCP kept
referring to a lack of rationale differentiating between his preexisting condition and his current
condition, he did not have a preexisting condition when he began work at the employing
establishment, but rather had developed a degenerative condition. Dr. Khulusi further explained
that appellant’s cervical conditions were not age related, but rather were caused by acceleration of
the degeneration of his discs in the neck because of the nature of his employment, as he had more
degeneration than other males his age. She argued that, since there was a disagreement between
her opinion and Dr. Einbund’s, OWCP should appoint a third physician who should make an
examination. Dr. Khulusi repeated her request that OWCP accept appellant’s condition for:
acceleration of degenerative disc disease of the neck; multiple cervical disc protrusions as a result;
multiple right cervical radiculopathies as a result and permanent aggravation of degenerative disc
disease of the neck as a result.
By decision dated September 15, 2017, OWCP denied appellant’s request for
reconsideration.

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LEGAL PRECEDENT
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).
Appellant timely requested reconsideration on June 19, 2017. However, he did not show
that OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by OWCP. The Board therefore finds that appellant is not
entitled to a review of the merits based on the first and second requirements under 20 C.F.R.
§ 10.606(b)(3).7
With his request for reconsideration, appellant submitted a June 15, 2017 letter from
Dr. Khulusi. The Board finds that this letter constitutes relevant and pertinent new evidence under
the third prong of 20 C.F.R. § 10.606(b). In her June 15, 2017 letter, Dr. Khulusi explained that
appellant’s cervical conditions were not age related, but rather were caused by acceleration of his
3

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees’
Compensation System. Id. at Chapter 2.1602.4b.
6

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

7

Id. § 10.606(b)(3)(i) and (ii).

5

cervical disc degeneration due to his employment. For the first time, she explained that, prior to
his 27 years of employment, he had no preexisting cervical conditions. Dr. Khulusi explained that
he developed degenerative cervical conditions during his employment, which were accelerated by
his employment. The Board finds that explanation is new and pertinent relevant evidence, which
directly addresses the issue of causal relationship. Appellant’s request for reconsideration
therefore met the third standard for obtaining merit review of his case under 20 C.F.R.
§ 10.606(b)(3).8 Accordingly, he is entitled to a merit review.
The Board will therefore set aside OWCP’s September 15, 2017 decision and remand the
case for an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request reconsideration of the
merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further action
consistent with this decision of the Board.
Issued: February 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8
See M.C., Docket No. 17-1983 (issued August 17, 2018); S.H., Docket No. 17-1101 (issued August 3, 2017);
Helen E. Tschantz, 39 ECAB 1382 (1988).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
BASE, Camp Lejeune, NC, Employer
__________________________________________

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

Docket No. 08-2145
Issued: May 12, 2009

Case Submitted on the Record

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

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from decisions of the Office of Workers
Compensation Programs’ dated December 21, 2007 and July 9, 2008. Under 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 sustained left shoulder and neck injuries in the
performance of duty on February 23, 2007; and (2) whether appellant sustained a left ear injury on
February 23, 2007 causing a ratable hearing loss causally related to factors of her federal
employment.
FACTUAL HISTORY
Appellant, a 47-year-old transportation clerk, filed a traumatic injury claim on
February 23, 2007, alleging that she injured her left shoulder, neck and ear while holding a
telephone and writing on a folder.

On March 23, 2007 the Office advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from her treating physician describing her
symptoms and the medical reasons for her condition and an opinion as to whether her claimed
condition was causally related to her federal employment. The Office requested that appellant
submit the additional evidence within 30 days.
Appellant submitted several treatment notes from the employing establishment’s health
unit from February through April 2007, which indicated that she received treatment for her neck
and left shoulder, but did not submit any comprehensive reports from a physician. A March 28,
2007 clinic note restricted her from computer work or telephone work until she had a headset
installed and restricted her from overhead work and lifting exceeding five pounds.
By decision dated April 25, 2007, the Office denied appellant’s claim, finding that she
failed to submit sufficient medical evidence in support of her claim that she sustained left
shoulder, ear and neck injuries in the performance of duty on February 23, 2007.
On May 18, 2007 appellant requested a review of the written record.
By decision dated October 22, 2007, an Office hearing representative set aside the
April 25, 2007 decision and remanded for further development of the medical evidence.1
In a report dated December 6, 2007, Dr. Noel Rogers, Board-certified in orthopedic
surgery, related that appellant injured her left shoulder on February 23, 2007 and underwent left
shoulder arthroscopic surgery on June 8, 2007. He noted that appellant believed that the surgery
helped her but she was still experiencing pain in her left shoulder. Appellant was able to move
her shoulder but was having trouble reaching overhead and holding her arm up for extended
periods of time. Dr. Rogers related that appellant stated that her neck did not really bother her;
she only had residual symptoms in her shoulder and none in her neck. On examination, appellant
had no neck tenderness and full range of motion. Dr. Rogers advised that x-rays of the left
shoulder shows some mild acromioclavicular (AC) arthritis, with no other real changes. He
diagnosed cervical strain, resolved; mild AC arthritis by x-rays; status post-subacromial
depression, rotator cuff repair.
Dr. Rogers stated that appellant’s February 23, 2007 work incident might have caused a
neck problem; however, if she did have such a problem it had resolved since she did not
complain of neck pain. He dismissed the possibility that she had any preexisting degenerative
changes in the shoulder, which were mild and located only in the AC joint. With regard to
whether appellant’s left shoulder condition was causally related to the February 23, 2007 work
incident, Dr. Rogers indicated that he found it difficult to attribute shoulder impingement and a
rotator cuff tear to holding a telephone to her ear while writing on a folder.
1

The Board notes that the hearing representative found that appellant had established fact of injury, which it
stated was contrary to the Office’s April 25, 2007 determination. This constituted error, as the April 25, 2007
decision denied appellant’s claim on the grounds that she failed to submit sufficient medical evidence, not that she
had failed to establish fact of injury; the decision clearly accepted that she had experienced an incident at work on
February 23, 2007, as she had alleged. Nonetheless, any error is harmless as appellant was permitted to submit
additional medical evidence in support of her claim.

2

In a December 14, 2007 report, Dr. Charles Beasley, Board-certified in otolaryngology,
stated:
“[Appellant] states that on February 23, 2007 she heard a pop in the left side of
her neck or shoulder or ear when she was talking on the telephone. She state[d]
that she had noted [that] her hearing was down in the left ear. [Appellant] state[d]
[that] she had no hearing test done before February 2007.
“Examination today shows the external ear to be normal. The ear canals are
normal. The tympanic membranes are normal. Audiogram reveals speech
recognition threshold (SRT) of 20 [decibel] (dB) in the right ear and 15 dB in the
left ear with 100 percent speech discrimination bilaterally. The tympanogram is
normal bilaterally. The pure bone thresholds are not felt to be reliable and it was
felt the patient was malingering during the pure tone threshold testing.… [A]nd
[otoacoustic emission] (OAE) [test] was performed revealing normal OAE in the
SRT from 2,000 to 3,000 [hertz] (Hz). The OAE was absent from 4,000 to 6,000
Hz indicating a possible high frequency, bilateral, sensorineural hearing loss.
“It is my opinion that there was no evidence for injury to the left ear on
February 23, 2007. Patient’s hearing is normal in the speech frequency. It is
possible she has a high frequency, bilateral, hearing loss due to unrelated causes.”
By decision dated December 21, 2007, the Office denied appellant’s claim that she
sustained left shoulder, ear and neck injuries in the performance of duty on February 23, 2007. It
found that the opinions of Drs. Rogers and Beasley represented the weight of the medical
evidence.
On January 10, 2008 appellant requested an oral hearing, which was held on
May 7, 2008.
Appellant submitted:
(1) a March 29, 2007 radiology report, which indicated
degenerative joint disease in her left AC joint; (2) reports dated May 2, 14 and 25, 2007 from a
physician’s assistant, Richard Ulstad; and (3) reports dated May 30 and August 15, 2007 from
Dr. Robert Boswell, Board-certified in internal medicine; a May 16, 2007 magnetic resonance
imaging (MRI) scan report, which showed rotator cuff tendinopathy, full thickness tear involving
the supraspinatus tendon, suspect small anterior labral tear of the left shoulder and degenerative
changes of the AC joint; Dr. Boswell’s June 8, 2007 operative report and a September 26, 2007
note from Dr. Boswell releasing appellant to return to light duty, with restrictions on overhead
reaching and lifting more than five pounds.
In his May 2, 2007 report, Mr. Ulstad, a physician’s assistant, noted the history of injury
and related that appellant had limited range of motion in her left shoulder with no numbness or
tingling; she experienced difficulty sleeping on her left shoulder. He advised that x-rays
indicated a type two acromion, osteopenia and minimal degenerative changes, with no acute
fracture or mal-alignment. Mr. Ulstad related continued left shoulder pain in appellant’s
May 14, 2007 report and scheduled her for an MRI scan. In his May 25, 2007 report, he stated
that the MRI scan showed labral changes in the anterior labrum with a mild tear in addition to

3

changes at the supraspinatus insertion with probable full thickness rotator cuff tear with
increased signal.
In his May 30, 2007 report, Dr. Boswell related findings of left shoulder pain on
examination and related that appellant experienced increased pain with activity. In his report
dated August 15, 2007, he noted that she was about nine weeks removed from left shoulder
arthroscopy and advised that her condition had improved, though it had not reached 100 percent.
Dr. Boswell stated that appellant could return to light duty on approximately September 1, 2007.
By decision dated July 9, 2008, an Office hearing representative affirmed the
December 21, 2007 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

4

The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS -- ISSUE 1
The Office accepted that appellant experienced left shoulder and neck pain while holding a
telephone and writing on a folder on February 23, 2007. The question of whether an employment
incident caused a personal injury can only be established by probative medical evidence.10
Appellant has not submitted rationalized, probative medical evidence to establish that the
February 23, 2007 employment incident caused a personal injury and that the work accident
would have been competent to cause the claimed injury.
The Board notes initially that appellant submitted several reports from Mr. Ulstad, a
physicians’ assistant. Reports from a physician’s assistant are not considered medical evidence
as a physician’s assistant is not considered a physician under the Act.11
Drs. Boswell and Rogers stated findings on examination and indicated that appellant had
a torn left rotator cuff, torn left labrum, left shoulder impingement and degenerative joint disease
in the left AC joint based on the results of diagnostic tests. These reports, however, did not
relate the diagnoses to the February 23, 2007 incident at work. The weight of medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.12 Dr. Boswell diagnosed left rotator cuff tear by MRI scan and performed
arthroscopic surgery to ameliorate this condition on June 8, 2007. He stated in his August 15,
2007 report that appellant’s condition had improved, though she was not yet fully recovered.
Dr. Boswell released her to return to light duty with restrictions in September 2007. Dr. Rogers
indicated in his December 6, 2007 report, that he found it hard to attribute shoulder impingement
and a rotator cuff tear to the February 23, 2007 work incident, in which appellant held a
telephone to her ear and was writing on a folder. He too believed that the June 8, 2007 left
shoulder arthroscopic surgery improved her condition although he noted that appellant still had
some left shoulder pain. Dr. Rogers related that she was able to move her shoulder but was
8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

John J. Carlone, supra note 5.

11

Ricky S. Storms, 52 ECAB 349 (2001).

12

See Anna C. Leanza, 48 ECAB 115 (1996).

5

having trouble reaching overhead and holding her arm up for extended periods of time. He
related that appellant stated that her neck did not really bother her; she only had residual
symptoms in her shoulder and none in her neck. Dr. Rogers dismissed the possibility that she
had any preexisting degenerative changes in the shoulder, which were mild and located only in
the AC joint. None of these physicians considered appellant’s neck condition to be a serious
problem. Appellant only had some slight residual symptoms and minimal complaints regarding
her neck, with no neck tenderness and full range of motion on examination. Dr. Rogers stated
that if she did have a neck condition, it had resolved.
Although these physicians presented diagnoses of appellant’s condition, they did not
adequately address how these conditions were causally related to the February 23, 2007 work
incident. The medical reports of record did not explain how medically appellant would have
sustained left shoulder or neck injuries because she was holding a telephone to her ear while
writing on a folder. There is insufficient rationalized evidence in the record that appellant’s left
shoulder or neck injuries were work related. Appellant failed to provide a rationalized, probative
medical opinion relating her current condition to any factors of her employment. Therefore, she
failed to provide a medical report from a physician that explains how the work incident of
February 23, 2007 caused or contributed to the claimed left shoulder and neck injuries.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Appellant did not provide a medical opinion which describes
or explains the medical process through which the February 23, 2007 work accident would have
caused the claimed injury. Accordingly, she did not establish that she sustained an injury in the
performance of duty. The Office properly denied appellant’s claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Under section 8107 of the Act13 schedule awards are payable for permanent impairment
of specified body members, functions or organs. The Act, however, does not specify the manner
in which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) has been adopted by the Office and the Board has concurred in such adoption, as an
appropriate standard for evaluation of schedule losses.14
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.15 Office
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
13

5 U.S.C. § 8107.

14

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

15

Tammy L. Meehan, 53 ECAB 229 (2001).

6

impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A. Guides.16
ANALYSIS -- ISSUE 2
The Board finds that appellant failed to submit the medical opinion evidence necessary to
establish that she sustained a permanent impairment and ratable hearing loss caused by the
February 23, 2007 work incident.
In this case, the Office accepted that appellant experienced pain in her left ear as a result
of an incident at work on February 23, 2007. Appellant’s claim was denied as she did not
establish that she sustained a permanent impairment as a result of this incident.
The only medical report appellant submitted was the December 14, 2007 report from
Dr. Beasley, which stated the history of injury and had appellant undergo an audiogram. This
report, however, did not contain a diagnosis relating to the February 23, 2007 incident at work.
This report also does not provide the necessary evidence to support appellant’s claim because it
does not provide any findings pertinent to a permanent impairment. Even in a claim for hearing
loss it remains her burden to submit some evidence in support of a permanent impairment.
Although appellant alleged that she sustained a hearing loss due to holding a telephone while
writing on a folder, she did not submit medical evidence sufficient to show that she had any
measurable permanent impairment, that she had reached maximum medical improvement or that
she had a ratable hearing loss causally related to the February 23, 2007 work incident.
Dr. Beasley stated that there was no evidence for injury to the left ear on February 23, 2007 and
advised that appellant’s hearing was normal in the speech frequency. He stated that it was
possible that she had a high frequency, bilateral, sensorineural hearing loss, but that this would
be due to unrelated causes. Dr. Beasley’s report indicates that appellant has no hearing loss and
thus no permanent impairment.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Appellant did not provide a medical opinion which describes
or explains the permanent impairment caused by the February 23, 2007 work incident.
Accordingly, she did not establish that she sustained a ratable hearing loss in the performance of
duty.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained neck and left
shoulder injuries in the performance of duty. The Board finds that she has failed to establish that
she sustained permanent impairment causing a ratable hearing loss in the performance of duty.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(b) (August 2002).

7

ORDER
IT IS HEREBY ORDERED THAT the July 9, 2008 and December 21, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 16-0577
Issued: May 6, 2016

Case Submitted on the Record

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

JURISDICTION
On January 19, 2016 appellant filed a timely appeal from a July 28, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from March 26, 2015 the date of the most recent OWCP merit decision, to the filing
of the current appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 28, 2015, the date of OWCP’s last decision was
January 24, 2016. As this fell on a Sunday, the appeal would have been due the next business day which was
Monday, January 25, 2016. Since using February 1, 2016, the date the appeal was received by the Clerk of the
Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is January 19, 2016 rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant abandoned her request for a hearing.
FACTUAL HISTORY
On January 23, 2015 appellant, then a 53-year-old equipment operator, filed a traumatic
injury claim (Form CA-1) alleging that on January 12, 2015 she sustained a fractured right toe in
the performance of duty. She alleged that she began to feel right foot pain after constantly
jumping from the hard surface of a power jack onto concrete without matting.
By decision dated March 26, 2015, OWCP denied appellant’s claim because the evidence
of record did not support that the injury occurred as described.
On April 20, 2015 appellant requested an oral hearing before an OWCP hearing
representative.
In a May 21, 2015 letter, OWCP notified appellant that a video teleconference hearing
was scheduled for July 7, 2015 at 2:30 p.m. It provided the address of the video teleconference
location. The notice was mailed to appellant’s address of record.
Appellant did not appear at the scheduled hearing.
By decision dated July 28, 2015, OWCP found that appellant abandoned her request for a
hearing. The decision noted that the hearing was scheduled for July 7, 2015, but appellant failed
to appear as instructed. The decision also found that there was no indication that appellant
contacted OWCP prior or subsequent to the scheduled hearing to explain her failure to
participate. OWCP concluded that appellant abandoned her hearing request.
On appeal appellant contends that she missed the hearing because of a family
commitment. She notes that OWCP’s letter advised that a medical emergency was the only
justification for rescheduling the hearing.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claims examiner, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days
before the scheduled date.4 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.5
3

Id. at § 8124(b)(1); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

2

A claimant who fails to appear at a scheduled hearing may request in writing within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing. Where good cause is shown for failure to appear at
the second scheduled hearing, review of the matter will proceed as a review of the written
record.6
Where it has been determined that a claimant has abandoned his or her request for a
hearing, OWCP’s Branch of Hearings and Review will issue a formal decision.7
ANALYSIS
By decision dated March 26, 2015, OWCP denied appellant’s traumatic injury claim.
Appellant submitted a timely request for a hearing. In a May 21, 2015 letter, OWCP notified
appellant of the time and location for the July 7, 2015 scheduled hearing. The notice was mailed
to appellant’s address of record. Appellant did not appear at the prescribed time. She did not
request a postponement of the hearing or explain her failure to appear at the hearing within 10
days of the scheduled hearing date of July 7, 2015. The Board, therefore, finds that appellant
abandoned her request for a hearing.
On appeal appellant contends that she missed the hearing because of a family
commitment. There is no evidence, however, that she contacted OWCP to provide this
information within 10 days of the scheduled hearing. The Board is precluded from reviewing
evidence not before OWCP at the time it issued its final decision.8
CONCLUSION
The Board finds that OWCP properly found that appellant abandoned her request for a
hearing.

6

20 C.F.R. § 10.622(f).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
8

See 20 C.F.R. § 501.2(c)(1).

3

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Harriman, TN, Employer
__________________________________________

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

Docket No. 13-284
Issued: July 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2012 appellant filed a timely appeal from the November 6, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his schedule
award claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant’s hearing loss was
not ratable; and (2) whether OWCP abused its discretion by denying authorization for hearing
aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has been previously before the Board. By decision dated September 10, 2012,2
the Board set aside a February 23, 2012 decision of OWCP denying appellant’s hearing loss
claim. The Board remanded the case to OWCP to further develop the medical evidence to
determine whether appellant had hearing loss causally related to factors of his federal
employment. The law and the facts of the case as set forth in the Board’s prior decision are
incorporated by reference.
At the time of the Board’s September 10, 2012 decision, OWCP had not developed the
issue of authorization of hearing aids as appellant’s claim was denied on the grounds of causal
relationship. Regarding the issue of hearing aids, Dr. H. Grady Arnold, a Board-certified
otolaryngologist, acting as an OWCP second opinion physician, recommended in his
September 28, 2011 report that hearing aids be authorized. He noted “bilateral hearing aids with
approximately 90 percent amplification.” On November 8, 2011 Tabitha Rossini, an audiologist,
reported that during the auditory brainstem response testing appellant related poor intelligibility
in adverse environments, while listening to some woman’s voices, in the absence of visual cues,
and while watching television. However appellant demonstrated no difficulties following
conversation, in a quiet office setting with visual cues.
Subsequent to the Board’s September 10, 2012 decision, OWCP referred appellant to
Dr. Joseph A. Motto, a Board-certified physician in otolaryngology, for a second opinion
evaluation. Mary Scafe, an audiologist, performed audiometric testing of appellant on
October 31, 2012. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed the following: right ear 15, 20, 20 and 20 decibels; left ear 15, 10, 5 and 20
decibels. Dr. Motto reviewed the audiometric test results and concluded that appellant had
sustained high frequency sensorineural bilateral hearing loss as a result of his federal
employment. He rationalized his conclusion by stating that appellant’s actual hearing loss
exceeded age-expected loss at all frequencies, and that he believed the workplace noise exposure
was sufficient to have caused his hearing loss. Dr. Motto did not offer an opinion regarding
authorization of hearing aids.
OWCP forwarded appellant’s case to a district medical adviser (DMA) for assessment of
the percentage of permanent hearing loss. On November 2, 2012 an OWCP medical adviser
reviewed Dr. Motto’s report and the audiometric test dated October 31, 2012. The medical
adviser concluded that appellant had a noise-induced sensorineural hearing loss which was not
ratable in either ear. In accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), appellant had a zero
percent binaural sensorineural hearing loss, and that the date of maximum medical improvement
was October 31, 2012. He noted that hearing aids were not authorized.
By decision dated November 6, 2012, OWCP accepted that appellant had a hearing loss
which was causally related to factors of his federal employment; however, the hearing loss was
not ratable for purposes of a schedule award. It also denied authorization for hearing aids.
2

Docket No. 12-1003 (issued September 10, 2012).

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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 regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. 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. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.6
ANALYSIS -- ISSUE 1
Following the Board’s remand of this case on September 10, 2012, OWCP did accept that
appellant’s hearing loss was causally related to his federal employment. However, OWCP
denied appellant’s schedule award claim on the grounds that his hearing loss was not ratable.
An OWCP medical adviser applied OWCP’s standardized procedures to the October 31,
2012 audiogram obtained by Dr. Motto. Test results for the right ear at the frequency levels of
500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 15, 20, 20 and 20
decibels, respectively. These decibels were totaled at 75 and were divided by 4 to obtain an
average hearing loss at those cycles of 18.75 decibels. The average of 18.75 decibels was then
reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to equal 0,
which was multiplied by the established factor of 1.5 to compute a zero percent monaural loss of
hearing for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed decibel losses of 15, 10, 5 and 20, respectively. These decibels were totaled at
50 and were divided by 4 to obtain the average hearing loss at those cycles of 12.5 decibels. The
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

5

Id.

6

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

3

average of 12.5 decibels was then reduced by 25 decibels (the first 25 decibels were discounted
as discussed above) to equal 0 which was multiplied by the established factor of 1.5 to compute a
zero percent hearing monaural loss for the left ear. As such, appellant’s binaural loss is also zero
percent. The Board finds that OWCP properly determined that appellant was not entitled to a
schedule award for hearing loss.
Appellant may submit evidence of an increased loss, with a written request for
reconsideration to OWCP at any time.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 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 any disability or aid in lessening the amount of any
monthly compensation.7 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.8
Following medical evaluation of a claim, if the hearing loss is determined to be nonratable for
schedule award purposes, other benefits such as hearing aids may still be payable if any
employment-related hearing loss exists.9
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision as to whether hearing aids
should be authorized. Dr. Arnold, an OWCP second opinion physician, recommended in his
September 28, 2011 report that hearing aids be authorized. Appellant was subsequently
evaluated by Dr. Motto, also an OWCP second opinion physician. Dr. Motto did not offer an
opinion as to whether hearing aids should be authorized in his November 1, 2012 report. While
the DMA concluded in his November 2, 2012 report that hearing aids were not authorized, he
offered no explanation for his conclusion.10 OWCP found that hearing aids were not authorized,
but provided no findings or explanation supporting its determination. The Board finds that
OWCP should have requested that Dr. Motto clarify whether hearing aids should be authorized
for appellant, after OWCP determined that appellant had established that his hearing loss was
causally related to his federal employment.
Proceedings under FECA are not adversarial in nature, OWCP shares in the responsibility
to develop the evidence and has an obligation to see that justice is done. As OWCP did not make
findings or explain why it declined to authorize hearing aids, the Board finds that the case must

7

5 U.S.C. § 8103 (a). See Joshua A. Holmes, 42 ECAB 231 (1990).

8

Id.

9

See F.D., Docket No. 10-1175 (issued January 4, 2011); R.R., Docket No. 12-1840 (issued February 14, 2013).

10

See J.O., Docket No. 12-1482 (issued January 3, 2013).

4

be remanded for further development regarding this aspect of appellant’s claim.11 Following this
and such other development as is deemed necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that appellant did not sustain a ratable hearing loss. The Board also
finds that the case is not in posture for decision as to whether hearing aids should be authorized.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed in part, and set aside in part for further
development of the medical evidence.
Issued: July 3, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11

Id.; see also Lyle Dayberry, 49 ECAB 369 (1998).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE ARMY, WHITE
SANDS MISSILE RANGE, NM, Employer
__________________________________________

)
)
)
)
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)
)
)

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

Docket No. 07-163
Issued: March 12, 2007

Case Submitted on the Record

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

JURISDICTION
On October 24, 2006 appellant filed a timely appeal from an August 21, 2006 Office of
Workers’ Compensation Programs’ merit decision, denying his claim for a back condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant’s back condition is causally related to factors of his federal
employment.
FACTUAL HISTORY
On November 22, 2004 appellant, then a 60-year-old mobile equipment servicer, filed an
occupational disease claim alleging that on October 26, 2004 he sustained a back injury due to
factors of his employment. His job required him to service light and heavy engine equipment,
change tires and batteries on graders, tractors, front loaders and trailers used to transport heavy

equipment and water trucks. Appellant stated that he previously sustained a back injury in
August 2002 and a knee and shoulder injury and ruptured spinal disc in 2003.
On December 15, 2004 the Office asked appellant to provide additional evidence,
including a comprehensive medical report explaining how his back condition was causally
related to factors of his federal employment.
Medical notes dated October 26 to December 21, 2004 from Dr. Michael S. Torres
indicated that appellant was treated for a lumbar sprain with radiculopathy, traumatic arthritis,
sciatica, lumbago and a herniated disc at L4-5 . He noted that appellant had a history of chronic
low back and hip pain.1 Dr. Torres stated that appellant’s job duties, including heavy lifting and
carrying, extended walking, standing, crawling and kneeling could have aggravated his lower
back condition. A November 3, 2004 magnetic resonance imaging (MRI) scan report indicated a
disc extrusion at L4 and small central disc protrusions at L3-4, L4-5 and L5-S1.
By decision dated January 18, 2005, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that his back condition was causally related to his
employment. It accepted the work activities claimed but noted that the medical evidence did not
establish that appellant’s back condition was causally related to his employment.
Appellant requested an oral hearing that was held on June 14, 2006. He testified that on
October 26, 2004 he was crawling up graders, jumping in and out of his truck and pulling fuel
and hydraulic hoses.
On June 9, 2006 Dr. David Masel, an attending Board-certified neurosurgeon, provided
findings on physical examination and the results of an MRI scan. He diagnosed a herniated
lumbar disc. Dr. Masel stated:
“[Appellant] states that on October 26, 2004 he was at work. His duties involved
heavy equipment servicing and on that particular day when he was performing his
regular job duties he felt a ‘sting’ in his low back that did cause significant pain,
but he continued to work. The pain continued to progress throughout the day.
The next day he began experiencing right leg pain. [Appellant] has been
experiencing since then right posterior thigh pain and right buttock pain with
intermittent right-sided low back pain. He states [that] the leg pain is worse than
the back pain.

1

A November 5, 2003 lower back and hip injury resolved as of December 2, 2003 and appellant returned to full
duties.

2

“[Appellant] does have a history of previous on-the-job back injuries; August 20,
2002, May 12 and November 5, 2003. He had injured his low back but was not
having any right leg symptoms.”
***
“[I]t appears [that appellant’s] current symptomatology of back pain with right leg
pain is related to his injury sustained while performing his work duties. Even
though he had some previous back injuries he was not experiencing any leg pain
until his injury of October 2004. It is Dr. Masel’s opinion that the current
symptomatology is a work[-]related injury”
By decision dated August 21, 2006, an Office hearing representative affirmed the
January 18, 2005 denial of appellant’s claim.
LEGAL PRECEDENT
To establish a causal relationship between a claimant’s medical conditions and his
employment, he must submit rationalized medical opinion evidence based on a complete factual
and medical background supporting such a causal relationship.2 Rationalized medical opinion
evidence is medical evidence which includes a physician’s opinion on the issue of whether there
is a causal relationship between the claimant’s 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.3 An award of compensation may not be
based on surmise, conjecture or speculation. Neither the 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.4
ANALYSIS
Appellant alleged that on October 26, 2004 he sustained a back injury while he was
crawling up graders, jumping in and out of his truck and pulling fuel and hydraulic hoses. The
Office accepted the work activities claimed but noted that the medical evidence did not establish
that appellant’s back condition was causally related to his employment.
Dr. Torres diagnosed a lumbar sprain with radiculopathy, traumatic arthritis, sciatica,
lumbago and a herniated disc at L4-5. He noted that appellant had a history of chronic low back
and hip pain. Dr. Torres stated that appellant’s job duties, including heavy lifting and carrying,
climbing, crawling, bending, kneeling and extended standing could have aggravated his lower
2

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

3

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

4

Michael S. Mina, supra note 2.

3

back condition. However, he did not describe the specific tasks that appellant was performing on
October 26, 2004 or the specific mechanism of injury. Dr. Torres’ opinion on causal relationship
is speculative. He indicated that appellant’s job “could” have aggravated his back condition.
Additionally, Dr. Torres diagnosed numerous separate back conditions but provided insufficient
medical rationale as to how appellant’s job caused or aggravated the listed back conditions. Due
to these deficiencies, his notes are not sufficient to establish that appellant sustained a workrelated back injury on October 26, 2004.
Dr. Masel diagnosed a herniated lumbar disc. He stated that appellant’s duties involved
heavy equipment servicing. On October 26, 2004 appellant was performing his regular job
duties when he felt a ‘sting’ in his low back that caused significant pain but he continued to
work. The pain continued to progress throughout the day. The next day appellant began
experiencing right leg pain, right posterior thigh pain, right buttock pain and intermittent
right-sided low back pain. Dr. Masel stated:
“[I]t appears [that appellant’s] current symptomatology of back pain with right leg
pain is related to his injury sustained while performing his work duties. Even
though he had some previous back injuries he was not experiencing any leg pain
until his injury of October 2004. It is Dr. Masel’s opinion that the current
symptomatology is a work[-]related injury”
However, Dr. Masel did not display knowledge of the specific activities appellant was
performing on October 26, 2004. His statement that appellant performed “heavy equipment
servicing” does not demonstrate the specific employment activities in which appellant was
engaged on October 26, 2004. Dr. Masel did not specify the level of the herniated disc, the
location in the spine. Additionally, he did not provide sufficient medical rationale explaining
how appellant’s activities on October 26, 2004 caused or contributed to his herniated disc. The
Board has held that medical reports containing inadequate rationale on causal relationship are
entitled to little probative value and are generally insufficient to meet an employee’s burden of
proof.5 Lacking a complete and accurate factual background, a precise diagnosis and sufficient
medical rationale addressing the issue of causal relationship, Dr. Masel’s report is not sufficient
to establish that appellant’s back condition was caused or aggravated by factors of his
employment.
CONCLUSION
The Board finds that appellant failed to establish that his back condition was causally
related to his federal employment.

5

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2006 is affirmed.
Issued: March 12, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1963
Issued: June 23, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated April 16, 2007, which denied appellant’s claim for
disability for work from July 12 to October 29, 2004.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this issue.
ISSUE
The issue is whether appellant was entitled to intermittent wage-loss compensation for
the period July 12 to October 29, 2004.
FACTUAL HISTORY
On January 31, 2004 appellant, then a 40-year-old letter carrier, filed an occupational
disease claim alleging that he sustained chronic low back pain in the performance of duty. He
alleged that his duties as a letter carrier included various functions, including lifting heavy
1

The record also contains decisions dated September 20 and November 28, 2006 pertaining to different periods
of claimed compensation and a January 22, 2007 schedule award decision. Appellant has not appealed these
decisions.

parcels without proper safety equipment.2 Appellant noted that his back condition began in 1985
and that he first thought that it was related to his work on January 1, 1992. He did not stop
work.3
In a disability certificate dated July 9, 2004, Dr. Karen J. Nichols, Board-certified in
internal medicine, opined that appellant was unable to work from July 1 to 8, 2004 because of
radiculopathy. She indicated that appellant could return to work on July 12, 2004. In an
October 4, 2004 report, Dr. James Shepard, Board-certified in internal medicine, opined that
appellant was under his care for lower back pain. He indicated that appellant was totally
incapacitated from October 1 through 4, 2004 and could return to work on October 5, 2004
without restrictions. In a disability certificate dated October 7, 2004, Dr. Edward Reis, Boardcertified in internal medicine, opined that appellant was unable to work from October 4, 2004
and could return to work on October 12, 2004 due to a recurrence of his back pain. The Office
received an October 16, 2004 emergency room note from Dr. Jennifer Tjia, an emergency room
physician, who diagnosed chronic low back pain. The Office also received several treatment
notes dating from July 8 to November 17, 2004. These notes reported findings but did not
address disability.
In a March 17, 2005 report, Dr. Robert Franklin Draper, a Board-certified neurologist and
second opinion physician, opined that appellant had low back syndrome comprised of
preexisting degenerative disc disease at L4-5 and L5-S1 and a previous history of low back pain
after falling off of a hill. He opined that his condition was aggravated by lifting. Dr. Draper
opined that appellant could work for 8 hours per day, 40 hours per week, with permanent
restrictions. He noted that they included no lifting over 50 pounds.
On April 18, 2005 the Office accepted appellant’s claim for temporary aggravation of
preexisting degenerative disc disease of the lumbosacral spine.4 Appellant subsequently stopped
work on April 2, 2005 as the employing establishment would no longer accommodate his lightduty restrictions. On December 14, 2005 the Office expanded appellant’s claim to include a
permanent aggravation of preexisting degenerative disc disease of the lumbosacral spine.
A July 3, 2006 memorandum from the Office of the Inspector General revealed that
appellant was employed with a private security company, Ares Group, since the third quarter of
2003.

2

The record reflects that appellant has an accepted claim for an ankle sprain under File No. 030187295, and left
plantar fascial fibramotosis and surgery. File No. 030258232.
3

The employing establishment indicated that appellant was placed on limited duty. On September 26, 2003
appellant was involved in modified duty for three to four hours per day for six days a week. He subsequently
returned to full-time limited duty on October 12, 2004. Appellant alleged a recurrence of total disability on
April 2, 2005.
4

The Office had initially denied the claim on May 21, 2004. Appellant subsequently received a service-related
disability for degenerative disc disease from the Department of Veterans Affairs related to his service in the Marine
Corps from July 20, 1983 to July 19, 1987.

2

On September 4, 2006 appellant filed a Form CA-7 claim for intermittent compensation
for the period July 10 to October 29, 2004. The employing establishment provided time analysis
forms for the claimed period.5
In a September 10, 2006 statement, appellant indicated that his job duties did not meet his
medical restrictions, as he was “constantly bending and twisting in order to complete [his]
assignment.” He alleged that his pain had increased tremendously due to the increased amount
of time he spent delivering mail and constantly getting in and out of his vehicles.
In a November 28, 2006 telephone call memorandum, the Office advised appellant that it
needed medical documentation to support the dates claimed in 2004. The Office also indicated
that it had spoken with the office of appellant’s physician, which advised that, while “total
incapacitation” was written on his disability slips, appellant “was not totally disabled” but that
“his employer would only accept that language.”6
By letters dated January 4 and 22, 2007, the Office advised appellant that, regarding his
claim for disability from July 12 to October 29, 2004, the medical evidence was insufficient to
establish work-related disability. It also noted that appellant worked as a security guard during
the claimed period. The Office noted that the only date for the aforementioned time frame, for
which it had evidence to establish work-related treatment, was on August 3, 2004. Appellant
was allotted 30 days to submit the requested evidence. Additionally, the Office noted that
Dr. Nichols released appellant to work on July 12, 2004 and there was no indication that he was
unable to work. In a telephone call memorandum of January 16, 2006, the Office informed
appellant that they did not have medical evidence to support his 2004 dates of disability. The
Office informed appellant that he had 20 days to submit the evidence.
The Office subsequently received a November 21, 1986 report from Dr. George L.
Weber, a specialist in physical medicine and pain, which revealed that appellant was involved in
an automobile accident on November 21, 1986. Dr. Weber diagnosed acute strain and sprain of
the cervical and thoracic spine, acute bilateral trapezial myofasciitis, and contusions of the
anterior chest wall, with post-traumatic cephalgia. The Office also received a November 11,
1987 report from Dr. Alberto C. Flores, a Board-certified surgeon, and a November 13, 2006
report, in which Dr. Curtis Slipman, a Board-certified physiatrist, indicated that appellant was
given a transforaminal nerve root block. A July 29, 1987 treatment note from Dr. David Ahrens,
a chiropractor, was also received. Additionally, the Office received a September 29, 2005 work
capacity evaluation, which indicated that appellant had permanent restrictions.7

5

The record shows that, on July 12, 2005, the Office paid appellant disability compensation for nine days from
October 1 to 11, 2004.
6

A November 17, 2006 Office telephone call memorandum with a person, Ms. Stinney, in the medical records
department in Dr. Reis’ office indicated that, although Dr. Reis had indicated “totally incapacitated” in treatment
notes, this was only because of the employing establishment’s requested. She also indicated that Dr. Reis’ office
wrote the wording requested by the claimant and that it would be up to a referral specialist to determine work
capabilities.
7

The doctor’s name is unclear.

3

In a January 5, 2007 report, Dr. Amish R. Patel, a Board-certified physiatrist, conducted a
physical examination and indicated that he needed to rule out disc degeneration at thoracolumbar
junction at T12-L1, L1-2, L2-3 and facet joint synovitis.
By decision dated April 16, 2007, the Office denied appellant’s claim for 149.67 hours of
intermittent disability compensation for the period July 12 to October 29, 2004.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act8 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence.9
For each period of disability claimed, the employee has the burden of establishing that he was
disabled for work as a result of the accepted employment injury.10 Whether a particular injury
causes an employee to become disabled for work, and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.11 The Board will not require the Office to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so, would essentially allow an employee to self-certify their
disability and entitlement to compensation.12
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.13 Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant,14 must be one of reasonable medical certainty,15 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.16

8

5 U.S.C. §§ 8101-8193.

9

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
10

See Amelia S. Jefferson, supra note 9. See also David H. Goss, 32 ECAB 24 (1980).

11

See Edward H. Horton, 41 ECAB 301 (1989).

12

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

13

See Viola Stanko (Charles Stanko), 56 ECAB 436 (2005); see also Naomi A. Lilly, 10 ECAB 560, 57273 (1959).
14

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

15

Id.

16

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

4

Under the Act, the term disability means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury.17 Disability is
thus not synonymous with physical impairment, which may or may not result in incapacity to
earn wages. An employee who has a physical impairment causally related to a federal
employment injury, but who nevertheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used in the Act.18
ANALYSIS
In support of his claim for intermittent wage-loss compensation for the period July 12 to
October 29, 2004, appellant submitted several reports.
Appellant submitted a disability slip from Dr. Shepard, which placed him off work from
October 1 to 4, 2004. He also provided an October 7, 2004 report from Dr. Reis, who opined
that appellant could not work from October 4 to 12, 2004. However, the record indicates that the
Office paid appellant disability compensation from October 1 to 11, 2004 and employing
establishment leave records do not show that appellant used leave without pay on
October 12, 2004. Neither physician provided any specific opinion explaining the causal
relationship of disability, before October 1, 2004 or after October 11, 2004, to the accepted
employment injury. As noted, the Board will not require the Office to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed. Thus these reports do not establish compensable disability
during the claimed period.
Appellant also submitted an October 16, 2004 emergency room treatment note from
Dr. Tjia, who diagnosed chronic low back pain and provided several treatment notes dating from
July 8 to November 17, 2004. However, these reports contained no discussion of causal
relationship with regard to disability for the claimed period. Medical evidence which does not
offer an opinion on causal relationship is of limited probative value.19
The reports in the instant case are not sufficient to meet appellant’s burden of proof as
they do not offer medical rationale explaining the causal relationship as to how or why
appellant’s accepted employment injury prevented him from performing the duties of his
position on the particular dates listed.20
Other medical evidence of record does not specifically address whether appellant had
employment-related disability during the claimed period. Many of these reports either address
appellant’s condition prior to or subsequent to the claimed period of disability. Without
17

20 C.F.R. § 10.5(f).

18

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

19

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
20

Medical reports not containing rationale on causal relationship are entitled to little probative value and are
generally insufficient to meet appellant’s burden of proof. Lourdes Davila, 45 ECAB 139 (1993).

5

reasoned medical evidence supporting that appellant had employment-related disability during
the period in question, appellant has not met his burden of proof to establish his claim for
intermittent wage-loss compensation during the period July 12 to October 29, 2004.
An award of compensation may not be based on surmise, conjecture or speculation or
upon appellant’s belief that there is a causal relationship between her condition and her
employment.21 Appellant failed to submit sufficient medical evidence in this case and, therefore,
has failed to discharge his burden of proof.
CONCLUSION
The Board finds that appellant was not entitled to intermittent wage-loss compensation
for the period July 12 to October 29, 2004.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2008
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

21

Patricia J. Glenn, 53 ECAB 159 (2001).

6