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

)
)
)
)
)
)
)
)

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

Docket No. 13-646
Issued: February 4, 2014

Case Submitted on the Record

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

JURISDICTION
On January 28, 2013 appellant, through her attorney, filed a timely appeal from an
October 22, 2012 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP), which denied her reconsideration request on the grounds that it was untimely filed and
failed to establish clear evidence of error. Because more than 180 days elapsed between the last
merit decision dated July 21, 2011 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of her claim pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
Appellant, then a 50-year-old distribution clerk, filed a Form CA-2 claim for benefits on
November 24, 2005, alleging that she developed a bilateral hand/wrist condition causally related
to employment factors. OWCP accepted the claim for right carpal tunnel syndrome, bilateral,
lateral epicondylitis and bilateral trigger finger.
On December 9, 2008 Dr. Jeffrey D. Stone, a Board-certified hand surgeon, performed
appellant’s surgery for right ulnar nerve submuscular transposition with V-Y flexor pronator
lengthening and right ring trigger finger.
Appellant returned to full duty on February 3, 2009.
Dr. Stone performed a second surgical procedure on September 8, 2009 for left ulnar
nerve submuscular transposition, with flexor pronator lengthening.
Appellant returned to work to a light-duty position tailored to restrictions outlined by
Dr. Stone on December 5, 2009.
On February 4, 2010 appellant was placed off work again due to the National
Reassessment Program (NRP), which resulted in the loss of available work for appellant at the
employing establishment. She began receiving compensation for temporary total disability.
In a work capacity evaluation form dated February 22, 2010, Dr. Stone indicated that
appellant could work eight hours with the following restrictions: reaching and reaching above
the shoulder for four hours per day; frequent lifting not exceeding 25 pounds; frequent pushing
not exceeding 40 pounds; intermittent pushing not exceeding 80 pounds; and overhead lifting not
exceeding 10 pounds.
On March 18, 2010 OWCP referred appellant for vocational rehabilitation.
In a February 5, 2010 report, received by OWCP on April 10, 2010, Dr. Walter E. Afield,
a Board-certified psychiatrist, related that appellant was placed off work on February 4, 2010 due
to NRP and had a work-related right hand condition which limited her activities. He advised that
this condition had resulted in permanent pain and opined that emotionally she was not able to
cope with her problems; she had developed severe depression, anxiety and an emotional
condition as a result of all her issues.
In three reports dated June 7, 2010, Dr. Stone expanded appellant’s work limitations to
include the restriction of five minutes off for every five minutes of typing.
In a vocational rehabilitation report dated September 1, 2010, a vocational rehabilitation
counselor recommended a position for appellant listed in the Department of Labor’s Dictionary

2

of Occupational Titles, cashier 2, DOT #211.462-010, which was within her indicated
restrictions and reasonably reflected her ability to earn wages.3
By letter dated September 2, 2010, OWCP asked Dr. Stone to review the job descriptions
of six selected jobs, including the cashier position. The descriptions set forth the duties and
physical requirements of each position. Dr. Stone was asked to state his opinion as to whether
appellant could perform these jobs.
On September 10, 2010 Dr. Stone responded to OWCP’s letter by signing his assent to all
six positions, including that of cashier 2, DOT #211.462-010.
In a September 23, 2010 report, received by OWCP on October 26, 2010, Dr. Afield
essentially reiterated his previous findings and conclusions. He stated that appellant experienced
stress dealing with her vocational counselor, which exacerbated her emotional condition.
Dr. Afield advised that she was uncomfortable with the perceived “dishonesty” displayed by the
vocational counselor, who was attempting to place her in suitable alternate employment. He
opined that, given appellant’s emotional condition, he did not believe that she was capable of any
form of employment, as this would be detrimental to her mental health.
By letter to OWCP dated September 21, 2010, the vocational counselor indicated that he
had closed appellant’s case. He stated that she was capable of earning an entry level wage of at
least $8.25 per hour based on his review of a May 2010 employment survey of her commuting
area and that cashier jobs were reasonably available to her in her commuting area based on
estimated occupational employment statistics. The entry pay level for this position was $330.00
per week.

3

The job description for the cashier position entails the following duties:
“Alternate Titles: Cash Clerk; Cashier, General; Cashier, Office; Ticket Clerk Receives cash from
customers or employees in payment for goods or services and records amounts received:
Recomputes or computes bill, itemized lists and tickets showing amount due, using adding
machine or cash register. Makes change, cashes checks and issues receipts or tickets to customers.
Records amounts received and prepares reports of transactions. Reads and records totals shown
on cash register tape and verifies against cash on hand. May be required to know value and
features of items for which money is received. May give cash refunds or issue credit
memorandums to customers for returned merchandise. May operate ticket-dispensing machine.
May operate cash register with peripheral electronic data processing equipment by passing
individual price coded items across electronic scanner to record price, compile printed list and
display cost of customer purchase, tax and rebates on monitor screen. May sell candy, cigarettes,
gum and gift certificates and issue trading stamps. May be designated according to nature of
establishment as Cafeteria Cashier (hotel and restaurant); Cashier, Parking Lot (automotive
ser[vice]); Dining-Room Cashier (hotel and restaurant); Service-Bar Cashier (hotel and
restaurant); Store Cashier (clerical); or according to type of account as Cashier, Credit (clerical);
Cashier, Payments Received (clerical). May press numeric keys of computer corresponding to
gasoline pump to reset meter on pump and to record amount of sale and be designated Cashier,
Self-Service Gasoline (automotive service). May receive money, make change and cash checks
for sales personnel on same floor and be designated Floor Cashier (clerical). May make change
for patrons at places of amusement other than gambling establishments and be designated ChangeBooth Cashier (amuse. & rec.).”

3

By notice of proposed reduction dated September 28, 2010, OWCP advised appellant of
its proposal to reduce her compensation because the factual and medical evidence established
that she was no longer totally disabled and that she had the capacity to earn wages as a cashier at
the weekly rate of $330.00 in accordance with the factors outlined in 5 U.S.C. § 8115.4 It
calculated that her compensation rate should be adjusted to $367.64 using the Shadrick5 formula.
OWCP found that appellant’s current adjusted compensation rate, every four-week period, was
$1,470.54. It stated that the case had been referred to a vocational rehabilitation counselor, who
had located a position as a cashier, which he found to be suitable for her, given her work
restrictions and was available in her commuting area. OWCP allowed appellant 30 days in
which to submit any contrary evidence.
By decision dated November 10, 2010, OWCP advised appellant that it was reducing her
compensation because the weight of the medical evidence showed that she was no longer totally
disabled for work due to the effects of her accepted right hand conditions and that the evidence
of record showed that the position of cashier represented her wage-earning capacity. Regarding
Dr. Afield’s report pertaining to her emotional condition, OWCP found that as a psychiatrist he
could not offer an opinion regarding her physical restrictions.
By letter dated December 1, 2010, appellant requested a hearing, which was held on
April 18, 2011. At the hearing she stated that she began to experience severe anxiety in 2007,
which was caused by her chronic pain. Appellant’s attorney indicated that reports from
Dr. Afield would establish that appellant had a consequential emotional condition; he advised
that the aggravation of her anxiety and depression caused by chronic pain from her accepted
injuries, would establish that she was not capable of performing the selected position of cashier.
In a report dated June 13, 2011, Dr. Afield stated that he had been treating appellant since
September 2009. He advised that she had been experiencing difficulty coping with some of her
chronic pain problems. Dr. Afield further stated that appellant’s emotional condition was
progressing and that her depression and anxiety were becoming more severe. He opined that she
was not emotionally capable of doing much from an occupational standpoint. Dr. Afield
diagnosed severe depression, anxiety, a chronic pain problem, some post-traumatic
symptomatology with regard to two of appellant’s surgeries and some of the situations she
encountered while working for the employing establishment. He related that she underwent
psychological testing in October 2009, which showed that she was extremely emotionally labile,
with symptoms of many severe depression, fatigability, irritability, anxiety, tension, significant
suicidal ideation and somatic concerns. Dr. Afield advised that appellant’s results were
indicative of post-traumatic stress disorder with symptomatology including anxious arousal,
depression, anger, irritability and intrusive experiences.
Dr. Afield reiterated that, from an emotional standpoint, appellant lacked the coping
skills and adaptive skills to be able to do any type of suitable alternate employment. He noted
that the selected positions approved by Dr. Stone required her to perform repetitive motions,
4

5 U.S.C. § 8115.

5

Albert C. Shadrick, 5 ECAB 376 (1953); see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment and Determining Wage-Earning Capacity, Chapter 2, 814.2 (April 1995).

4

which would only exacerbate her pain and aggravate her emotional condition; thus he opined that
she was not capable of doing these jobs. Finally, Dr. Afield noted that appellant had some
preexisting anxiety before he started treating her; however, because her anxiety and depression
became so severe, she was referred her to a psychiatrist who was better able to handle her
emotional problems and prescribe appropriate medication and treatment.
By decision dated July 21, 2011, an OWCP hearing representative affirmed the
November 10, 2010 decision. The decision did not specifically express that OWCP had
reviewed the evidence received from Dr. Afield, but the hearing representative did note that an
emotional condition had not been accepted as work related.
By letter dated August 19, 2012, appellant’s attorney asked OWCP to apprise him of the
status of his request to expand the accepted conditions to include the emotional injury diagnosed
by Dr. Afield.
By letter dated October 3, 2012, received by OWCP on October 9, 2012, appellant’s
attorney requested reconsideration of the July 21, 2011 decision. Accompanying his request was
a copy of a letter requesting reconsideration dated July 30, 2011, which counsel asserted,
appellant’s attorney had sent to OWCP at the time the letter was dated. Appellant’s attorney
asked OWCP to consider Dr. Afield’s June 13, 2011 report in support of his request for
reconsideration and reiterated his request to expand the accepted conditions to include a
consequential emotional condition.
By decision dated October 22, 2012, OWCP denied appellant’s request for
reconsideration without a merit review, finding that the request was untimely and that she had
not established clear evidence of error. Regarding Dr. Afield’s report, it stated that it had
previously reviewed reports pertaining to his examination of her. OWCP stated that appellant
was required to present evidence which showed that it made an error and that there was no
evidence submitted that showed that its final merit decision was in error.
LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle an employee to a review of an OWCP decision
as a matter of right.7 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-- (1) end or increase the
compensation awarded; or (2) award compensation previously refused or
discontinued.”

6

5 U.S.C. § 8128(a).

7

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).

5

OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).8 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within 180 days of the date of that decision.9 The Board has found that the imposition of
this 180-day time limitation does not constitute an abuse of the discretionary authority granted by
OWCP granted under 5 U.S.C. § 8128(a).
ANALYSIS
On appeal, appellant’s attorney argues that OWCP erred in finding that his request for
reconsideration was untimely. He asserts that he submitted a letter dated July 30, 2011, which
timely requested reconsideration. The Board does not accept this argument. While counsel
submitted a copy of a letter dated July 30, 2011 in which he requested reconsideration of the
July 21, 2011 decision, there is no indication in the record that OWCP received a copy of this
letter until October 9, 2012. The Board therefore affirms OWCP’s finding that appellant’s
request for reconsideration was untimely.
Appellant’s attorney further contends that OWCP’s hearing representative erred by
failing to address June 13, 2011 report, which was received by OWCP prior to the July 21, 2011
hearing representative’s decision. Counsel contends that the October 22, 2012 nonmerit decision
should be reversed and that OWCP should be directed on remand to consider Dr. Afield’s report
with regard to whether it should accept a consequential emotional condition.
The Board has duly reviewed the case record and finds that the failure of OWCP, in the
November 10, 2010 and July 21, 2011 merit decisions, as well as the October 22, 2012 nonmerit
decision, to consider Dr. Afield’s reports, which indicated that appellant’s emotional condition
would preclude her from performing the selected position as cashier, constitutes clear evidence
of error. The issue of whether an employee has the ability to perform a modified position offered
by the employing establishment is primarily a medical question that must be resolved by the
medical evidence.10 OWCP referred appellant to a vocational rehabilitation counselor who
identified the selected position of cashier based on the physical restrictions outlined by
Dr. Stone. Appellant signed his assent to the cashier position on September 10, 2010; OWCP
therefore found in its November 10, 2010 reduction of compensation decision that the position of
cashier was within appellant’s physical restrictions.
However, OWCP has received Dr. Afield’s thorough, well-rationalized reports in which
he opined that appellant had an emotional condition, possibly preexisting, which precluded her
from performing the cashier position. This report indicated that she had greater restrictions than
8

Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against
payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by
(1) showing that OWCP erroneously applied or interpreted a point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constituting relevant and pertinent new evidence not previously
considered by OWCP. See 20 C.F.R. § 10.606(b).
9

Id. at § 10.607(b).

10

Robert Dickinson, 46 ECAB 1002 (1995).

6

those upon which the cashier job had been based. Appellant’s counsel has continuously argued
that her emotional condition should be accepted as a consequential injury, but OWCP has
refused to address this issue. In determining wage-earning capacity, impairments which
preexisted the injury and all injury-related impairments must be taken into consideration in the
selection of the position.11 Once Dr. Afield indicated that appellant had additional restrictions
stemming from an emotional condition and that this condition was consequential to the accepted
injury, this raised the issue of whether the duties of the cashier position exceeded the restrictions
imposed by Dr. Stone which only addressed the right hand conditions. Therefore, OWCP erred
in failing to address medical evidence that appellant submitted prior to its July 21, 2011 decision;
i.e., Dr. Afield’s reports, in considering whether the November 10, 2010 decision reducing her
compensation was proper.12
CONCLUSION
The Board finds that the hearing representative committed reversible error in her July 21,
2011 decision by finding that the November 10, 2010 decision properly reduced her
compensation based on her ability to perform the selected position of cashier.

11

See supra note 4 at Chapter 2.814.8.a(2), (5), (6) (December 1993); see also Chapter 2.814.8(d), Medical
Suitability, which states: “The [claims examiner] is responsible for determining whether the medical evidence
establishes that the claimant is able to perform the job, taking into consideration medical conditions due to the
accepted work-related injury or disease and any preexisting medical conditions.”
12

Thu M. McGill, Docket No. 98-1867 (issued July 14, 2000); see also O’Lester Williams, Docket No. 01-1637
(issued May 15, 1992); Ruth Hickman, Docket No. 91-831 (issued July 31, 1991).

7

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 4, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
College Point, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-70
Issued: September 21, 2010

Case Submitted on the Record

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

JURISDICTION
On October 9, 2009 appellant, through counsel, filed a timely appeal of the May 6, 2009
merit decision of the Office of Workers’ Compensation Programs denying his recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
commencing August 24, 2007 causally related to his January 2, 2001 employment-related
injuries.
On appeal, counsel contends that the medical evidence is sufficient to establish that the
claimed recurrence of total disability and diagnosed conditions are causally related to the
accepted injuries.

FACTUAL HISTORY
On January 2, 2001 appellant, then a 58-year-old letter carrier, filed a traumatic injury
claim alleging that he cut his left hand and experienced pain in his left arm, elbow, wrist,
shoulder and knee and lower back when he fell on the ice at the employing establishment
entrance on that date. The Office accepted his claim for neck, elbow and forearm sprains.
Following his January 2, 2001 injuries, appellant returned to limited-duty work. Subsequently,
he returned to full-duty work.
Appellant stopped work on August 24, 2007 and filed a recurrence of disability claim
beginning that date. In a September 20, 2007 statement, he noted that, on the morning of
August 24, 2007, he experienced numbness in his left leg. At 12:45 p.m. on that date, appellant
set out to walk two blocks to get lunch. After walking one-half block, he experienced a shooting,
throbbing and stabbing pain from his neck down to his toes. From January 2, 2001 to August 24,
2007, appellant experienced sporadic neck and shoulder pain and numbness in his left fingers,
toes and thigh. He became a supervisor in 2003 because he could no longer carry mail due to
numbness and pain in his left leg and shoulder.
In a September 3, 2007 magnetic resonance imaging (MRI) scan report of appellant’s
cervical spine, Dr. Eliezer Offenbacher, a Board-certified radiologist, found that he had
straightening of the cervical lordosis, spondylosis most notable at C5-6 and C6-7 with a focal
central disc herniation deforming the thecal sac but no significant cord compression and a mild
posterior bulge at C7-T1 without significant neural impingement. In a September 10, 2007 MRI
scan report of appellant’s lumbar spine, he found that he had mild levoscoliois and spondylosis
from L2-3 through L5-S1 associated with mild impingement on the thecal sac.
In reports dated September 11 to November 19, 2007, Dr. Carlisle L. St. Martin, an
attending neurosurgeon, reviewed a history of appellant’s January 2, 2001 employment injury
and medical treatment. On August 24, 2007 appellant experienced severe left knee pain after
walking one block to get lunch. Dr. St. Martin listed normal findings on physical examination
and diagnosed cervical herniated nucleus pulposus with a history of a lumbar pinched nerve. He
found that appellant was totally disabled for work. Dr. St. Martin advised that on August 24,
2007 appellant sustained a reinjury consisting of pain related to preexisting cervical and lumbar
disc disease. Dr. St. Martin indicated with an affirmative mark that the diagnosed condition was
caused by an employment activity. Appellant’s job involved walking on inspections of mail
routes. He was found totally disabled from August 24 to December 31, 2007.
On September 20, 2007 the employing establishment controverted appellant’s claim,
noting he was getting lunch at the time of the claimed recurrence of disability and was not in the
performance of duty.
By letter dated December 14, 2007, the Office requested that appellant submit a
rationalized medical opinion from an attending physician explaining how his current condition
was causally related to the January 2, 2001 injury.
In reports dated September 5 and December 27, 2007, Dr. St. Martin reiterated a history
of the January 2, 2001 employment-related injury, the August 24, 2007 lunch incident and his

2

diagnosis of cervical herniated nucleus pulposus. He opined that appellant was totally disabled
from August 24, 2007 through December 27, 2007.
By decision dated January 18, 2008, the Office denied appellant’s recurrence of disability
claim on the grounds that the medical evidence of record was insufficient to establish total
disability on August 24, 2007 due to his accepted January 2, 2001 injury.
On January 13, 2009 appellant, through counsel, requested reconsideration. A July 8,
2008 progress note from Dr. B.R. Raju, a Board-certified internist, addressed appellant’s
emotional condition. In February 19 and March 31, 2008 nerve conduction study reports of
appellant’s left upper and lower extremities, Dr. Augustine C. Romano, a clinical
neurophysiologist, advised that he had prolonged median nerve distal motor latency absent right
tibial H reflex and prolonged left tibial nerve H reflex. The March 31, 2008 study results were
suspicious of early left carpal tunnel syndrome and bilateral S1 radiculopathies. A February 11,
2008 report from Dr. Raphael P. Davis, a Board-certified neurologist, reviewed a history of
appellant’s January 2, 2001 injury, medical treatment and social and family background. He
listed essentially normal findings on neurological examination with motor and sensory deficits.
Dr. Davis advised that appellant had cervical and lumbar muscle spasms with radicular features
and was obese. He found that appellant could not work due to the diagnosed conditions. In a
May 8, 2008 report, Dr. Davis reviewed a history of the January 2, 2001 injury, August 24, 2007
lunch incident and appellant’s medical treatment. He reviewed MRI scans of the cervical and
lumbar spines. Dr. Davis diagnosed diffuse spondylotic disease involving both the cervical and
lumbar area with multiple levels of disc degeneration and stenosis.
By decision dated May 6, 2009, the Office denied modification of the January 18, 2008
decision. The evidence submitted by appellant was found insufficient to establish that he
sustained a recurrence of disability commencing August 24, 2007 due to his January 2, 2001
injury.
LEGAL PRECEDENT
A recurrence of disability is defined as the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which had resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment, which caused the illness. The term also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.1
An employee who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
compensation is causally related to the accepted employment injury.2 The claimant has the
1

20 C.F.R. § 10.5(x).

2

Kenneth R. Love, 50 ECAB 193, 199 (1998).

3

burden of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.3 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.4 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.5
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.6 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.7 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.8
ANALYSIS
The Office accepted that appellant sustained neck, elbow and forearm sprains on
January 2, 2001 while in the performance of duty. Appellant claimed a recurrence of disability
commencing August 24, 2007. The Board finds that appellant has failed to submit sufficient
medical evidence to establish that his disability was caused or aggravated by his accepted
injuries.
The diagnostic test reports of Dr. Offenbacher and Dr. Romano addressed appellant’s
cervical, lumbar and left upper and lower extremity conditions. This evidence, however, failed
to address how these conditions and appellant’s claimed recurrence of disability commencing
August 24, 2007 were causally related to the January 2, 2001 injury. The Board has held that a
physician’s opinion, which does not address causal relationship, is of diminished probative
value.9 Neither Dr. Offenbacher nor Dr. Romano provided any opinion explaining how
appellant’s cervical, lumbar and left upper and lower extremity symptoms in 2007 were due to
the accepted sprains of 2001. The physicians did not provide any opinion addressing his

3

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

4

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

5

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

6

See Ricky S. Storms, supra note 4; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
7

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
8

See Ricky S. Storms, supra note 4; Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See A.D., 58 ECAB 149 (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).

4

disability for work commencing August 24, 2007. The Board finds that the reports of
Dr. Offenbacher and Dr. Romano are insufficient to establish his claim.
Dr. St. Martin’s September 20 to November 19, 2007 form reports are also of limited
probative value. While he specifically found that appellant had cervical herniated nucleus
pulposus and was totally disabled for work from August 24 to December 27, 2007, he did not
address how or why the diagnosed condition and resultant disability were causally related to the
January 2, 2001 injury.10 The Board notes that the Office accepted soft tissue injuries to the
neck, elbow and forearms. A cervical herniated nucleus pulposus was not accepted as resulting
from the January 2, 2001 injury. Appellant has the burden of proof to establish such causal
relationship.11
In form reports dated September 20 to November 19, 2007, Dr. St. Martin reviewed a
history that on August 24, 2007 appellant sustained a reinjury of pain related to a preexisting
injury or disease. He indicated with an affirmative mark that his diagnosed cervical and lumbar
disc disease was caused by walking on route inspections. Dr. St. Martin opined that appellant
was totally disabled from August 24 to December 31, 2007. Reports which only address causal
relationship with a checkmark without more by way of medical rationale explaining how the
incident caused the injury are insufficient to establish causal relationship and are of diminished
probative value.12 Dr. St. Martin did not adequately explain how the diagnosed conditions or
total disability was caused or contributed to by the January 2, 2001 employment-related injuries.
Rather, he noted appellant’s job duty of walking on inspection routes, a new work exposure
subsequent to the injury accepted in this case.13
Dr. St. Martin’s September 5 to December 27, 2007 narrative reports provided a history
of the January 2, 2001 injury and August 24, 2007 incident of appellant walking one block to get
lunch. After reporting normal findings on physical examination, he diagnosed cervical herniated
nucleus pulposus with a history of a lumbar pinched nerve. Again, Dr. St. Martin did not
adequately address how appellant’s accepted neck sprain had changed such that he became
disabled as of August 24, 2007. The Board finds that his reports are insufficient to establish
appellant’s claim.
Similarly, the reports of Dr. Davis are insufficient to establish appellant’s claim. After
reviewing a history of the January 2, 2001 employment-related injuries, the August 24, 2007
lunch incident, appellant’s medical treatment and MRI scans of the cervical and lumbar spines,
he opined that appellant had diffuse spondylotic disease involving both the cervical and lumbar
area with multiple levels of disc degeneration and stenosis. Dr. Davis did not explain how the
accepted sprains in 2001 were competent to cause total disability for work as of August 24, 2007.
10

Id.

11

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); JaJa K. Asaramo, 55 ECAB 200,
204 (2004).
12

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

13

To the extent appellant attributes his disability to his employment activities in 2007, this decision does not
preclude him from submitting such claim to the Office.

5

On February 11, 2008 he found that appellant was disabled due to muscular cervical and lumbar
spasms with radicular features and obesity. Dr. Davis again related a history of the January 2,
2001 injury, medical treatment and social and family background. He listed essentially normal
findings on neurological examination with motor and sensory deficits. Dr. Davis did not address
whether appellant’s disability commencing August 24, 2007 was caused or aggravated by his
injury. He failed to offer a sufficient opinion on causation and his reports do not establish that
appellant sustained a recurrence of disability causally related to the accepted injury.
Dr. Raju’s July 8, 2008 progress note addressed appellant’s emotional condition. He did
not provide any opinion addressing the accepted January 2, 2001 employment injury.14 The
Board finds that Dr. Raju’s opinion is insufficient to establish appellant’s claim.
Appellant failed to submit rationalized medical evidence establishing that his disability
commencing August 24, 2007 resulted from the residuals of his accepted neck, elbow and
forearm sprains.15 He has not met his burden of proof.16 Appellant’s contention on appeal that
the medical evidence is sufficient to establish his claim is not supported by the evidence of
record. His contention that he sustained the claimed recurrence of disability and consequential
conditions is a medical question that must be resolved by the submission of probative medical
evidence.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
disability commencing August 24, 2007 causally related to his January 2, 2001 employment
injury.

14

A.D., supra note 9.

15

Cecelia M. Corley, 56 ECAB 662 (2005).

16

Tammy L. Medley, 55 ECAB 182 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2009 and January 18, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BIRMINGHAM VETERANS AFFAIRS
MEDICAL CENTER, Birmingham, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 19-1584
Issued: July 9, 2020

Case Submitted on the Record

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

JURISDICTION
On July 12, 2019 appellant filed a timely appeal from a May 1, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability from
work commencing February 21, 2018 causally related to his accepted October 9, 2017 employment
injury.
FACTUAL HISTORY
On October 10, 2017 appellant, then a 58-year-old cook,3 filed a traumatic injury claim
(Form CA-1) alleging that on October 9, 2017 he sustained a lumbar injury when he lifted a heavy
pan while in the performance of duty. He stopped work on October 10, 2017. On October 25,
2017 OWCP accepted the claim for sprain of ligaments of the lumbar spine. The record indicates
that appellant returned to light duty in the volunteer division on November 5, 2017. He stopped
work on December 17, 2017 and did not return.
Dr. Raveendran Meleth, a Board-certified internist, provided periodic reports through
January 11, 2018 noting flare-ups of back pain while performing prescribed exercises.
Physical therapy notes show that appellant participated in physical therapy treatments from
December 15, 2017 to March 21, 2018.
OWCP subsequently received an October 30, 2017 report in which Dr. Neal J. Stiel,
Board-certified in palliative care, had diagnosed a low back strain and low back pain, reaggravated
when appellant bent to tie his boots.
In a February 21, 2018 report, Dr. Meleth permanently limited lifting to no more than 10
pounds for up to three hours a day due to the accepted lumbar strain.
Dr. Jeffrey Todd Smith, a Board-certified orthopedic surgeon, reported on March 13, 2018
that appellant remained under care for the accepted lumbar strain. In a March 27, 2018 report,
Dr. Kevin S. Barlotta, Board-certified in emergency medicine, noted a history of back pain with
increased lumbar discomfort during the previous five days after performing prescribed back
exercises. He diagnosed “[a]cute on chronic back pain.”
In reports dated March 28 and April 3, 2018, Dr. Meleth noted appellant’s complaints of
increased low back symptoms during physical therapy. He diagnosed L5 spondylolisthesis,
degenerative joint disease of the lumbar spine, and low back pain. Dr. Meleth discontinued
physical therapy and referred appellant for a neurosurgical consultation due to L5
spondylolisthesis.4

3
Appellant’s position was a light-duty position. He was under work restrictions due to a January 14, 2016 left knee
strain accepted under OWCP File No. xxxxxx158, and an August 1, 2017 left knee effusion accepted under OWCP
File No. xxxxxx252. These claims have not been administratively combined with the current claim and are not before
the Board on the present appeal.
4

March 29, 2018 lumbar x-rays showed bilateral L5 spondylosis and spondylolisthesis.

2

In an October 16, 2017 report, Dr. Orlando Douglas T. Turner, a Board-certified internist,
had opined that the October 9, 2017 employment incident caused a suspected musculoskeletal back
strain without neurological impairment.
In an undated letter received by OWCP on April 3, 2018, the employing establishment
confirmed that it had been unable to accommodate appellant’s work restrictions as of
December 2017. New work restrictions given in February 2018 precluded his return to his dateof-injury job.
On April 9, 2018 OWCP received appellant’s claim for compensation (Form CA-7) for the
period February 21, 2018 and continuing. Appellant contended that physical therapy treatment on
January 10, 2018 and performing prescribed exercises on March 27, 2018 exacerbated his back
pain
In a development letter dated May 23, 2018, OWCP notified appellant of the deficiencies
of his claim and afforded him 30 days to submit additional medical evidence. It provided a
questionnaire for his completion.
In response, appellant submitted a June 7, 2018 statement asserting that Dr. Meleth’s duty
restrictions precluded him from performing his modified job as a cook.
The employing establishment updated a copy of the April 9, 2018 Form CA-7 on May 23,
2018, and indicated that the duty restrictions prescribed for appellant’s accepted lumbar condition
precluded him from performing the duties of his date-of-injury position as a cook.
By decision dated July 13, 2018, OWCP denied appellant’s Form CA-7 claim for
compensation for total disability from work commencing February 21, 2018. It found that the
evidence of record was insufficient to establish work-related disability during the period claimed.
On July 31, 2018 appellant requested reconsideration. He argued that the employing
establishment could not accommodate the duty restrictions given by Dr. Meleth, and thus he is
disabled.
In July 11, 2018 reports, Dr. Smith noted that appellant first experienced back symptoms
following a 2008 motor vehicle accident. He diagnosed a grade 1 spondylolisthesis at L5-S1 with
a pars defect at L5, spondylitic changes at L3-4 and L4-5, and radiculitis into the right lower
extremity. Dr. Smith returned appellant to light-duty work, with lifting limited to 20 pounds,
standing and walking no more than three hours a day, no repetitive bending at the waist, no
twisting, and no climbing stairs or ladders.5
By decision dated October 19, 2018, OWCP denied modification of its prior decision as
the medical evidence of record was insufficient to establish total disability from work for the
claimed period due to the accepted lumbar strain.

5

Appellant underwent an L5-S1 epidural steroid injection on August 17, 2018.

3

On November 13, 2018 appellant requested reconsideration. He contended that
Dr. Smith’s work restrictions disabled him from performing his light-duty cook position.
In reports dated September 5 and October 24, 2018, Dr. Smith opined that the accepted
lumbar injury permanently aggravated underlying spinal conditions and recommended an L5-S1
interbody fusion. He renewed prior work restrictions.
In a November 9, 2018 letter, D.S., an employing establishment division chief, noted that
the nutrition and food service in which appellant worked did not have any light-duty positions
available. The employing establishment approved appellant’s request for leave without pay
effective November 9, 2018.
By decision dated February 14, 2019, OWCP denied modification as the medical record
did not establish work-related disability for the claimed period.
On March 31, 2019 appellant requested reconsideration. He contended that Dr. Smith’s
opinion as a spine surgeon, based on an accurate factual and medical history, was sufficient to
establish that the accepted lumbar sprain disabled him from work on and after February 21, 2018.
Appellant provided a March 5, 2019 report from Dr. Smith opining that the accepted lumbar strain
permanently exacerbated the L5-S1 pars defect with spondylosis and foraminal stenosis, and
probably caused an L4-5 disc herniation with retrolisthesis.6
By decision dated May 1, 2019, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim.7 Under FECA the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury.8
For each period of disability claimed, the employee has the burden of proof to establish that he or
she was disabled from work as a result of the accepted employment injury.9 Whether a particular
injury caused an employee to be disabled from employment and the duration of that disability are

6

Appellant also provided imaging studies. A June 2, 2018 lumbar magnetic resonance imaging scan study
demonstrated multilevel degenerative changes most significant at L4-5 and L5-S1 with lateral recess narrowing and
neural foraminal narrowing at both levels. An October 19, 2018 computerized tomography scan of the lumbar spine
demonstrated a bilateral pars defect at L5 with disc protrusion/herniation and neural foraminal narrowing, and a mild
retrolisthesis of L4 on L5 with posterior disc protrusion, bilateral neural foraminal narrowing, and a disc osteophyte.
7

M.C., Docket No. 18-0919 (issued October 18, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005); see also
Nathaniel Milton, 37 ECAB 712 (1986).
8

A.S., Docket No. 17-2010 (issued October 12, 2018); S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB
746 (2004); 20 C.F.R. § 10.5(f).
9

K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

4

medical issues which must be proven by the preponderance of the reliable, probative, and
substantial medical evidence.10
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.11
The Board will not require OWCP 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 his or her disability and
entitlement to compensation.12
ANALYSIS
The Board finds that the case is not in posture for a decision.
Appellant claimed wage-loss compensation for the period February 21, 2018 and
continuing as work restrictions necessitated by the accepted October 9, 2017 lumbar sprain
precluded him from performing his light-duty position as a cook.
Dr. Meleth provided February 21, 2018 permanent work restrictions limiting lifting to 10
pounds for up to three hours a day. Dr. Smith imposed additional limitations on July 11, 2018
restricting standing and walking to three hours a day, no twisting or climbing, and no repetitive
bending at the waist.
The employing establishment noted in an April 3, 2018 letter that it had been unable to
accommodate appellant’s work restrictions as of December 2017. It specified in the May 23, 2018
Form CA-7 that the duty restrictions imposed by appellant’s physicians for the accepted back
injury prevented him from resuming his position as a cook. Furthermore, division chief D.S.
explained in a November 9, 2018 letter that there were no other light-duty positions available in
the food service.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,

10

D.P., Docket No. 18-1439 (issued April 30, 2020); M.J., Docket No. 19-1287 (issued January 13, 2020); S.G.,
Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291-92 (2001).
11

See K.P., Docket No. 19-1811 (issued May 12, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020);
Terry R. Hedman, 38 ECAB 222 (1986).
12

M.J., supra note 10; J.B., Docket No. 19-0715 (issued September 12, 2019).

5

OWCP shares responsibility in the development of the evidence13 to see that justice is done.14 The
Board finds that it is unable to make an informed determination of whether the offered light-duty
position was available consistent with the restrictions from the employment-related lumbar injury
or employment-related knee conditions. Therefore, the case will be remanded to OWCP for further
development.
For full and fair adjudication, upon return of the case record OWCP shall administratively
combine the present claim with OWCP File Nos. xxxxxx158 and xxxxxx252.15 After this and
other such further development as OWCP deems necessary, it shall issue a de novo decision
regarding the issue of employment-related disability.16
CONCLUSION
The Board finds that the case is not in posture for decision.

13

D.P., supra note 10; Russell F. Polhemus, 32 ECAB 1066 (1981).

14

V.B., Docket No. 18-1273 (issued March 4, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000); M.M., Docket No. 17-1150 (issued January 26, 2018); D.C., Docket No. 17-0538 (issued
June 27, 2017).
16

D.P., supra note 10; N.S., Docket No. 19-0454 (issued August 7, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: July 9, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, CAPITOL HILL
ANNEX POST OFFICE, Denver, CO, Employer
__________________________________________
Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-0986
Issued: April 27, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On April 7, 2020 appellant, through counsel, filed a timely appeal from a March 4, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 20-0986.
On November 9, 2017 appellant, then a 58-year-old collector, filed an occupational disease
claim (Form CA-2) alleging that she injured her right arm due to factors of her federal employment.
She noted that she first became aware of her condition and realized that it was caused or aggravated
by factors of her federal employment on August 1, 2017. Appellant explained that on August 1,
2017 she was parked on a hill in a downgrade position and when she exited her truck the sliding
door slid forward and slammed on her right arm.2 She underwent two months of therapy to treat

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

Appellant previously filed a traumatic injury claim for a right shoulder injury related to the August 1, 2017
employment incident in which her truck door slammed on her shoulder under OWCP File No. xxxxxx108. On
November 20, 2017 OWCP accepted her claim for a right shoulder sprain. On May 31, 2019 it expanded acceptance

her injury, but noticed that pain in her lower arm and fingers worsened. OWCP assigned the claim
File No. xxxxxx171.
Appellant subsequently submitted medical evidence relating to diagnosed right carpal
tunnel syndrome, as well as her accepted right shoulder conditions.
By decision dated January 29, 2018, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that her diagnosed medical
condition was causally related to the accepted factors of her federal employment.
On March 1, 2018 appellant requested reconsideration of OWCP’s January 29, 2018
decision.
By decision dated July 25, 2018, OWCP denied appellant’s request for reconsideration,
finding that it failed to raise a substantive legal question or include new and relevant evidence.
On January 10, 2019 appellant, through counsel, requested reconsideration of OWCP’s
January 29, 2018 decision. Counsel provided a memorandum in which she asserted that new
medical reports from Dr. John Aschberger, Board-certified in physical medicine and Dr. Alireza
Alijani, a Board-certified orthopedic surgeon, were sufficient to prove that her carpal tunnel
syndrome was causally related to the factors of her federal employment. She explained that
appellant’s employment duties included repetitive grasping and fingering through mail, for hours
each day, which resulted in her right carpal tunnel syndrome. Counsel further indicated that
appellant underwent surgery to treat her condition on March 31, 2018 with Dr. Alijani.
By decision dated January 14, 2019, OWCP denied modification of its January 29, 2018
decision, finding that the evidence of record was insufficient to establish causal relationship.
On December 27, 2019, appellant, through counsel, requested reconsideration of OWCP’s
January 14, 2019 decision. Counsel reasoned that a new medical report from Dr. Aschberger was
sufficient to demonstrate that appellant’s carpal tunnel syndrome was causally related to her
employment duties.
By decision dated March 4, 2020, OWCP denied modification of its January 14, 2019
decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files or when two
or more injuries occur to the same part of the body.3 For example, if a new injury is reported for
an employee who previously filed an injury claim for a similar condition or the same part of the

of appellant’s claim to include a right shoulder rotator cuff tear. Appellant’s claims have not been administratively
combined.
3
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

2

body or when two or more separate injuries have occurred on the same date, doubling is required.4
Herein, appellant had a prior traumatic injury claim for a right shoulder sprain and a right shoulder
rotator cuff tear caused by an August 1, 2017 employment incident to which OWCP assigned
OWCP File No. xxxxxx108. She then filed an occupational disease claim for right carpal tunnel
syndrome and indicated that she first became aware of her condition after the August 1, 2017
employment incident in which she injured her right arm and shoulder during the same employment
incident in which the sliding door on her truck slammed on her right arm, which is the claim
presently before the Board assigned OWCP File No. xxxxxx171. The case record associated with
OWCP File No. xxxxxx108, however, is not presently before the Board.
For a full and fair adjudication, the Board finds that the case must be returned to OWCP to
administratively combine the current case record with OWCP File No. xxxxxx108 so it can
properly determine whether appellant has established that her diagnosed right carpal tunnel
syndrome was causally related to the accepted factors of her federal employment. Following this
and other such further development as OWCP deems necessary, it shall issue a de novo decision.
Accordingly,
IT IS HEREBY ORDERED THAT the March 4, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: April 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

4

Id., L.H., Docket No. 18-1777 (issued July 2, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hopkinsville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2438
Issued: March 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from the June 18, 2007 merit
decision of the Office of Workers’ Compensation Programs, which awarded compensation for
his right lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the schedule award.
ISSUE
The issue is whether appellant has more than a 37 percent permanent impairment of his
right lower extremity.
FACTUAL HISTORY
On November 27, 2002 appellant, then a 42-year-old letter carrier, injured his right knee
in the performance of duty: “Carrier was delivering mail on unfamiliar route and in the dark he
tripped on the curb on Campbell Street while stepping up to sidewalk.” The Office accepted his
claim and authorized right knee surgery, including a total knee replacement on
December 6, 2006.

Appellant claimed a schedule award. His orthopedic surgeon, Dr. Joseph E. Mesa,
recommended an impairment rating of 37 percent of the right lower extremity. An Office
medical adviser reviewed the medical record and reported that appellant had good results from
the surgery. He agreed with Dr. Mesa’s rating.
In a decision dated June 18, 2007, the Office issued a schedule award for a 37 percent
permanent impairment of the right lower extremity.
Appellant asks the Board to review the amount awarded and the award’s expiration date:
“I have suffered a great deal with the injury to my right knee and feel that the amount of
compensation is less than what is equal to the suffering that I as well as my family has
experienced.”
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
ANALYSIS
Table 17-33, page 547 of the A.M.A., Guides divides impairment following total knee
replacement into three categories: good results (37 percent), fair results (50 percent) and poor
results (75 percent). Dr. Mesa, the orthopedic surgeon who performed the total knee
replacement, indicated that appellant had good results. An Office medical adviser reviewed the
medical record and agreed. There is no evidence that appellant has had anything less than a good
result from his total knee replacement in terms of pain, range of motion, stability and alignment.
The Board will affirm the Office’s finding that he has a 37 percent impairment of the right lower
extremity.
The Act provides 288 weeks of compensation for the total loss of a lower extremity.3
Partial losses are compensated proportionately.4 Compensation for a 37 percent impairment of a
lower extremity is 37 percent of 288 weeks, or 106.56 weeks of compensation, which is what the
Office awarded. Appellant contends that this does not adequately reflect what he and his family
have gone through. Neither the Office nor the Board has the authority to enlarge the terms of the
Act or to make an award of benefits other than those specified in the statute.5 Congress set up a
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th
ed. 2001).
3

5 U.S.C. § 8107(c)(2).

4

Id. at § 8107(c)(19).

5

See Danny E. Haley, 56 ECAB 393 (2005).

2

system that compensates permanent impairment with the payment of a specified number of
weeks of compensation. The amount payable pursuant to a schedule award does not take into
consideration the effect that the impairment has on employment opportunities, wage-earning
capacity, sports, hobbies or other lifestyle activities.6 As noted, neither the Office nor the Board
may award appellant more compensation than he is entitled to under the law. He retains the right
to file a claim for an additional award should the medical evidence establish that the extent of
impairment to his right leg has increased.
CONCLUSION
The Board finds that appellant has no more than a 37 percent permanent impairment of
his right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

See Dennis R. Stark, 57 ECAB ___ (Docket No. 05-1826, issued January 10, 2006).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.P., Appellant
and
DEPARTMENT OF THE NAVY, HUNTERS
POINT NAVAL SHIPYARD, San Francisco, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 06-1019
Issued: January 23, 2007

Case Submitted on the Record

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

JURISDICTION
On March 23, 2006 appellant filed a timely appeal from a March 9, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for an oral
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the denial
of the hearing. As more than one year has elapsed between the filing of this appeal and the most
recent merit decision of March 8, 2005, the Board lacks jurisdiction to review the merits of this
case.
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing
under 5 U.S.C. § 8124.
FACTUAL HISTORY
This case is before the Board for the second time. In the first appeal, the Board affirmed
the Office’s June 3 and March 16, 2004 decisions granting appellant a schedule award for a 30

percent impairment of the lungs.1 The findings of fact and conclusions of law from the prior
decision are hereby incorporated by reference.
On July 13, 2004 appellant filed a claim for compensation on account of disability (Form
CA-7) requesting compensation from August 1997 onward. In a decision dated September 17,
2004, the Office denied appellant’s claim on the grounds that the medical evidence was
insufficient to establish that he was disabled due to his accepted pulmonary condition of calcified
plaques from asbestos exposure.
On October 8, 2004 appellant requested a review of the written record. In a decision
dated February 18, 2005 and finalized March 8, 2005, an Office hearing representative affirmed
the September 17, 2004 decision.
On February 3, 2006 appellant requested an oral hearing on the March 8, 2005 hearing
representative’s decision. In a decision dated March 9, 2006, the Office’s Branch of Hearings
and Review denied appellant’s request for a hearing as he had previously had a review of the
written record on the same issue. The Branch of Hearings and Review further considered the
request and determined that the issue of entitlement to disability compensation could be equally
well addressed through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b) of the Federal Employees’ Compensation Act, concerning a claimant’s
entitlement to a hearing, states that: “Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of issuance of the decision, to a hearing on his claim before a
representative of the Secretary.”2 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right
unless the request is made within the requisite 30 days.3
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”4 Section 10.616(a)
further provides, “A claimant injured on or after July 4, 1966, who had received a final adverse
decision by the district Office may obtain a hearing by writing to the address specified in the
decision. The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.”5

1

Isaac Pettway, Docket No. 04-1867 (issued December 3, 2004).

2

5 U.S.C. § 8124(b)(1).

3

Frederick D. Richardson, 45 ECAB 454 (1994).

4

20 C.F.R. § 10.615.

5

20 C.F.R. § 10.616(a).

2

The Office, in its broad discretionary authority in the administration of the Act, has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings, and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to the Act which provided the right to a hearing, when the request is made after the
30-day period established for requesting a hearing, or when the request is for a second hearing on
the same issue.6 The Office’s procedures, which require the Office to exercise its discretion to
grant or deny a hearing when a hearing request is untimely or made after reconsideration under
section 8128(a), are a proper interpretation of the Act and Board precedent.7
ANALYSIS
By decision dated September 17, 2004, the Office denied appellant’s request for
disability compensation beginning August 1997. Appellant requested a review of the written
record. In a decision finalized March 8, 2005, an Office hearing representative affirmed the
September 17, 2004 decision after finding that the evidence was insufficient to support that
appellant was disabled due to his employment-related pulmonary condition. On February 3,
2006 appellant requested an oral hearing on the March 8, 2005 decision.
The Office properly determined that appellant was not entitled to a second hearing under
section 8124 as a matter of right. A hearing takes the format of either an oral hearing or a review
of the written record.8 As appellant received a review of the written record, he was not entitled
to a subsequent oral hearing on the same issue. The Board thus finds that the Office properly
denied his request for a second hearing as he had already received a hearing, in the form of a
review of the written record, before the Office.9
The Office also exercised its discretion in further considering appellant’s hearing request
in its March 9, 2006 decision. It denied the hearing request on the basis that appellant could
pursue his claim equally well by requesting reconsideration and submitting additional evidence.
As the only limitation on the Office’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from known facts.10
There is no evidence in the case record that the Office abused its discretion in refusing to grant
appellant’s hearing request.

6

See André Thyratron, 54 ECAB 257 (2002).

7

Sandra F. Powell, 45 ECAB 877 (1994).

8

20 C.F.R. § 10.615.

9

See André Thyratron, supra note 6.

10

Delmont L. Thompson, 51 ECAB 155 (1999).

3

CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 9, 2006 is affirmed.
Issued: January 23, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Colorado Springs, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1171
Issued: October 10, 2014

Case Submitted on the Record

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

JURISDICTION
On April 24, 2014 appellant filed a timely appeal of a February 24, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish carpal tunnel
syndrome due to factors of his federal employment.
FACTUAL HISTORY
On November 11, 2014 appellant, then a 64-year-old mail handler, filed an occupational
disease claim alleging bilateral carpal tunnel syndrome due to sorting mail and hand stamping in

1

5 U.S.C. § 8101 et seq.

the performance of duty. He first became aware of his condition on August 23, 2013 and first
realized that his condition was potentially related to his employment on September 23, 2013.
In support of his claim, appellant submitted a report dated September 23, 2013 from
Dr. Jeffrey P. Jenks, a physiatrist, diagnosing moderate to severe bilateral carpal tunnel
syndrome based on electromyogram (EMG). Dr. Jenks noted that appellant worked full time as
a mail handler sorting mail and that he experienced fairly constant paresthesias in both hands.
On examination he found that appellant demonstrated positive Tinel’s sign at the wrists
bilaterally with decreased sensation in the right ulnar and left median nerve distributions.
Appellant’s EMG demonstrated absent right median sensory distal latency and significantly
prolonged right median motor distal latency. He also found significantly prolonged left median
motor and sensory distal latencies. Dr. Wallace K. Larson, a Board-certified orthopedic surgeon,
completed a form report on January 8, 2014 and diagnosed carpal tunnel syndrome. Appellant
was scheduled to undergo a right wrist carpal tunnel release on January 16, 2014.
In a letter dated January 17, 2014, OWCP requested that appellant submit additional
factual and medical information in support of his claim including a physician’s opinion as to how
his employment activities caused, contributed to or aggravated his carpal tunnel syndrome. It
allowed 30 days for a response.
Appellant’s supervisor completed a statement on February 5, 2014 and agreed that
appellant’s employment duties included dumping mail from sacks, cutting ties, facing letter mail
and carrying mail to distributors for processing. Appellant was also required to pick up sacks
and pouches as well as separate outgoing bulk mail for dispatch and loading trucks. He also
cancelled stamps on parcels and letters operating a cancelling machine.
By decision dated February 24, 2014, OWCP denied appellant’s claim finding that he
failed to submit the necessary medical evidence to establish a causal relationship between his
diagnosed condition of carpal tunnel syndrome and his implicated employment duties.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between
the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.2
2

Lourdes Harris, 45 ECAB 545, 547 (1994).

2

ANALYSIS
Appellant has submitted evidence of a diagnosed medical condition, bilateral carpal
tunnel syndrome. He has also provided a description of the employment duties which he felt
caused or contributed to his condition. The employing establishment agreed that appellant
performed these duties. The Board finds, however, that he has not submitted medical evidence
establishing that the employment factors identified were the proximate cause of the medical
condition of carpal tunnel syndrome, meaning that he has not provided a physician’s opinion, as
requested, stating that his work duties resulted in his diagnosed condition.
Appellant submitted two medical reports diagnosing carpal tunnel syndrome. Dr. Larson
completed a form report which diagnosed carpal tunnel syndrome. He did not provide any
opinion regarding the relationship of this condition to appellant’s employment duties. Dr. Jenks
also diagnosed carpal tunnel syndrome, noting that appellant worked full-time sorting mail in his
position as a mail handler. However, he did not offer any medical opinion regarding the
relationship between appellant’s employment duties and his diagnosed condition.
Neither of the medical reports in the record discussed the proximate cause of appellant’s
bilateral carpal tunnel syndrome or offered an opinion that his work was implicated in the
development of his medical condition. Without medical evidence supporting that his implicated
employment duties caused or contributed to his diagnosed condition, the Board finds that he has
not met his burden of proof in establishing his occupational disease claim for carpal tunnel
syndrome.3
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
establishing that his employment duties as a mail handler caused or contributed to his diagnosed
carpal tunnel syndrome and has not, therefore, met his burden of proof in establishing his
occupational disease claim.

3

A.L., Docket No. 14-753 (issued July 11, 2014).

3

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.N., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1525
Issued: December 13, 2013

Case Submitted on the Record

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

JURISDICTION
On June 13, 2013 appellant filed a timely appeal from an April 3, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant’s claim for a work-related hearing loss is barred by the
applicable time limitation provisions of FECA.
FACTUAL HISTORY
On December 12, 2012 appellant, then a 68-year-old retired production controller, filed
an occupational disease claim alleging that working around loud noise in his federal employment
1

5 U.S.C. § 8101 et seq.

caused hearing loss. He indicated that he was first aware of his hearing loss and that it was
caused or aggravated by his employment in January 1997. The employing establishment
indicated that appellant retired on September 30, 2003.
Appellant submitted his employment history,2 in which he denied any safety devices
were used to protect against noise exposure; a Standard Form 50-B Notification of Personnel
Action; and a December 18, 2012 medical report and December 12, 2012 audiogram from
Dr. Gerald Randolph, a Board-certified otolaryngologist.
In a February 6, 2013 letter, OWCP advised appellant of the deficiencies in his claim and
requested additional evidence because the submitted evidence did not show that his claim was
timely filed or that the noise exposure he experienced caused injury.
In a letter also dated February 6, 2013, OWCP informed the Puget Sound Naval Yard of
appellant’s hearing loss claim and requested additional information, including copies of all
medical examinations pertaining to hearing or ear problems, preemployment examination and all
audiograms and a statement indicating if he was in a hearing conservation program while
employed.
In a February 14, 2013 statement, appellant stated that he was informed sometime in
1997 that he had hearing loss exposure to loud noise. He stated that his claim was filed in a
timely manner as his immediate supervisor had actual knowledge of the injury. Appellant
related that his supervisor scheduled him for additional hearing testing after hearing changes
were noted on his yearly hearing test.
In a March 25, 2013 electronic mail, Joanne S. Brown, Human Resource Specialist,
stated that appellant’s medical records were requested and, upon review of the medical folder,
two medical reports of physical examination, both dated 1978 were of record. However, there
were no hearing loss records, audiograms, etc. There was also no indication that appellant had
been part of the Hearing Conservation Program.
OWCP received medical reports from the employing establishment health unit dated
February 25, 1974 and February 7, 1978.
By decision dated April 3, 2013, OWCP denied appellant’s claim for a work-related
hearing loss as it was untimely filed. Appellant’s claim was denied because the evidence did not
support a finding that his claim was filed within three years of the date of injury or that his
immediate supervisor had actual knowledge within 30 days of the date of injury. The decision
found that there was no evidence that appellant was part of the Hearing Conservation Program.

2

Appellant’s employment history indicates that he was employed by the Puget Sound Naval Shipyard from 1972
until 1982 as a machinist-test director and production controller; and by the NAVSEA Command as a production
controller from 1982 until 2002.

2

LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.3 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) [T]he immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such as to put the immediate superior
reasonably on notice of an on-the-job injury or death; or
“(2) [W]ritten notice of injury or death as specified in section 8119 was given
within 30 days.”4
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.5 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.6
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his or her federal employment, such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent.7 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.8 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
3

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

4

5 U.S.C. § 8122(a).

5

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

6

Laura L. Harrison, 52 ECAB 515 (2001).

7

Larry E. Young, supra note 5.

8

Id.

3

the causal relationship between the employment and the compensable disability.9 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.10
ANALYSIS
The Board finds that this case is not in posture for decision.
On December 12, 2012 appellant filed an occupational disease claim alleging that he
sustained a hearing loss due to factors of his federal employment. Regarding the relationship of
the claimed condition to his work, appellant stated that he first became aware of his claimed
condition and that it was caused or aggravated by his employment on January 1, 1997. He has
not alleged that his hearing loss was a latent condition. Appellant retired from the employing
establishment on September 30, 2003.
Although the date of appellant’s injury was listed as January 1, 1997, the date of his last
exposure to noise in his federal employment position was presumably his date of retirement on
September 30, 2003. However, his claim for compensation was not filed until December 12,
2012, more than nine years after he was last exposed to the claimed employment factors as a
production controller for the employing establishment.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. He claimed before OWCP and on appeal that his hearing loss was
documented by the employing establishment. OWCP denied the claim based upon a finding that
appellant had not established that he was as part of a hearing conservation program. While
participation in a hearing conservation program can establish constructive notice of injury, there
is no evidence in the record demonstrating such a program in place at this employing
establishment.
The Board notes that, while OWCP requested employment and medical records from the
employing establishment, which did not reflect any audiogram results, it failed to request similar
records from NAVSEA Command. Given the lapse of time of the records submitted by the
employment establishment and the claimed time of the hearing loss, the Board is unable to
determine the timeliness of this claim without these same records pertaining to his later
employment at the NAVSEA Command, during the years 1982 to 2003. For these reasons, the
Board finds that the case must be remanded to OWCP for further development. OWCP shall
request that the NAVSEA Command submit any and all medical records pertaining to
appellant’s claim, in its possession. After such further development as necessary OWCP shall
thereafter address whether audiograms were performed at the employing establishment during
appellant’s employment and whether they demonstrated actual knowledge of appellant’s hearing
loss. It shall thereafter issue an appropriate decision.
9

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

10

Debra Young Bruce, 52 ECAB 315 (2001).

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this opinion.
Issued: December 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
_________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-1365
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 16, 2021 appellant through counsel, filed a timely appeal from an
August 16, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-1365.
In a letter dated February 10, 2022, counsel requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that counsel ’s request f or the
withdrawal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the withdrawal of the appeal is
granted. The appeal docketed as No. 21-1365 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

2