United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Alexandria, VA,
Employer
__________________________________________

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

Docket No. 09-928
Issued: December 23, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal of the May 22 and November 24,
2008 merit decisions of the Office of Workers’ Compensation Programs denying his traumatic
injury 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 back injury in the
performance of duty on April 21, 2007, as alleged.
FACTUAL HISTORY
On June 6, 2007 appellant, then a 54-year-old lock and dam equipment mechanic leader,
filed a traumatic injury claim alleging that on April 21, 2007 he sustained a slip disc in his back
due to a C-130 airplane veering in flight while leaving from Baghdad, Iraq.

In an August 15, 2007 letter, the Office informed appellant that the evidence was
insufficient to establish his claim. Appellant was advised as to the medical and factual evidence
required to support his claim and given 30 days to provide this information. No evidence was
received.
By decision dated September 26, 2007, the Office denied appellant’s claim after finding
that he did not establish that the April 21, 2007 work incident occurred at the time, place and in
the manner alleged. It further found the record was devoid of any medical evidence establishing
a condition.
On October 20, 2007 appellant requested reconsideration. In support of his request, he
submitted medical and factual evidence including: his statement regarding the incident; a postdeployment health assessment, a job description; a September 14, 2007 attending physician’s
report (Form CA-20) and office notes dated August 31, September 14 and 26, October 15 and 30
and November 12 and 28, 2007 from Dr. Christopher H. Tashjian, an attending Board-certified
family practitioner; a November 21, 2007 report from Dr. Vesselina Mateva, a treating Boardcertified neurologist; and a September 25, 2007 report from Dr. Daniel W. Hanson, an examining
Board-certified orthopedic surgeon.
In an undated statement, appellant noted that he flew out of Baghdad on a C-130 plane on
April 21, 2007. During the flight, he felt something in his back when he reached to pick up his
bag after sliding on the webbed bench due to a sharp dive followed by an upward thrust of the
plane. Appellant related that when he arrived at Fort Bliss he could hardly walk and informed
his doctors about his back problem. He stated that he went to a chiropractor the day following
his return home on April 25, 2007.
In a September 14, 2007 Form CA-20, Dr. Tashjian diagnosed a herniated disc and low
back pain and noted that appellant was injured on April 21, 2007 while flying back from
Baghdad. He checked “yes” to the question as to whether the diagnosed condition was
employment related and wrote “possibly” as an explanation.
In a September 25, 2007 report, Dr. Hanson, based upon a physical examination and
review of lumbar magnetic resonance imaging (MRI) scans, diagnosed bilateral leg paresthesias,
right leg pain, lumbar spondylosis and low back pain. He stated that the MRI scan revealed a
“very mild central dis[c] herniation at the L4-5 level, which does not cause significant neurologic
compression.” As to the cause, Dr. Hanson related that appellant attributed his injury to leaving
Baghdad on April 21, 2007 when the plane took evasive maneuvers when it came under attack.
However, he stated that he could not “explain the exact etiology of his symptoms.”
In treatment notes dated October 10 and 19, 2007, Dr. Tashjian diagnosed low back pain.
He also diagnosed right-sided meralgia paresthetica on October 10, 2007 and lower extremity
paresthesias on October 19, 2007. Dr. Tashjian noted that appellant felt low back pain almost
immediately in April 2007 when he left Baghdad on a plane which “made some abrupt evasive
maneuvers and the patient stretched and injured his back sliding backwards.” A physical
examination on October 10, 2007 revealed pain in the lumbar spine when he bent forward. On
October 19, 2007 Dr. Tashjian reported that an MRI scan revealed multiple lumbar and sacral

2

area nerve root sleeve cysts which are unrelated to appellant’s employment injury and normally
asymptomatic in patients.
In a November 21, 2007 report, Dr. Mateva diagnosed low back pain and history of
perineurial cysts (Tarlov cysts). She noted that appellant had no health problems until
April 2007 when he fell and injured his back while in Baghdad. As to appellant’s cysts,
Dr. Mateva related that some studies described Tarlov cysts as becoming symptomatic following
a back trauma. She stated that compression of the lumbar and sacral nerve root occurs as a result
of buildup of cerebrospinal fluid in the cyst which can cause problems such as lower extremity
pain and bowel, bladder or sexual dysfunction.
Appellant subsequently submitted progress notes dated September 14 and November 28,
2007 from Dr. Tashjian, a January 10, 2008 lumbar spine MRI scan, a January 10, 2008 total
body bone scan, a January 10, 2008 computerized tomography (CT) lumbar scan and a
January 10, 2008 progress note from Jill Goring, R.N.
Dr. Tashjian, in a September 14, 2007 progress note, diagnosed persistent low back pain
and a herniated disc. On November 28, 2007 he diagnosed persistent back pain and status post
fall. Dr. Tashjian noted “[t]here is some concern over these cysts causing his back pain.”
On January 10, 2008 Ms. Goring noted that appellant was referred for a neurosurgery
consultation and that he had injured his back on April 21, 2007 during a flight from Baghdad.
She reported that appellant had complaints of back pain radiating bilaterally into his legs since
April 2007.
By decision dated February 1, 2008, the Office modified the September 26, 2007 decision
to reflect that appellant had established that the April 21, 2007 incident occurred as alleged.
However, it found that the medical evidence was insufficient to show that appellant sustained a
medical condition due to the established work incident and, thus, affirmed the denial of his claim
as modified.
On February 19, 2008 appellant requested reconsideration. In support of his request, he
submitted medical evidence including: a November 19, 2007 emergency room treatment note
from Hudson Hospital; a February 8, 2008 report from Dr. Tashjian; a February 18, 2008 report
from Dr. Ronald Nyeggen, a chiropractor; an MRI scan; a November 21, 2007 report from
Dr. Mateva and electromyogram studies dated October 26, 2007.
On February 8, 2008 Dr. Tashjian noted that appellant initially saw a chiropractor
following the April 21, 2007 incident and that he has seen appellant for back problems since he
first saw him in July 2007. In concluding, he opined that “[w]ith this additional history it seems
clear to me that his current problems are related to the injury of [April] 21, 2007 within a
reasonable degree of medical certainty.”
In a February 18, 2008 report, Dr. Nyeggen, a chiropractor, stated that he first saw
appellant on April 26, 2007 when he “was in an obvious severe low back pain while in an
antalgic position.” Appellant related injuring his lower back on April 21, 2007 when the plane
he was riding in performed an abrupt maneuver. Dr. Nyeggen opined that appellant has not
recovered from the injury sustained on April 21, 2007.
3

By decision dated May 22, 2008, the Office denied appellant’s request for modification
of the denial of his claim.
Subsequent to the decision, the Office received a June 11, 2008 report from Dr. Mark V.
Larkins, a treating Board-certified neurosurgeon, who opined that appellant’s back condition
“may have been proximal nerve root compression or potentially facet injury” as a result of “the
rapid loss of altitude of the plane in which he was traveling.” Since the injury, appellant had
severe low back pain. Based on the reporting of events and the employment injury history,
Dr. Larkins opined that appellant’s condition was temporarily related to his service in Iraq.
On June 24, 2008 appellant requested reconsideration and submitted medical and factual
evidence in support of his request. The medical evidence consists of: an April 8, 2008 lumbar
MRI scan; a September 25, 2007 report from Dr. Hanson; an August 29, 2008 lumbar
discography procedure note; an April 9, 2008 lumbar bone scan; an April 8, 2008 lumbar CT
scan; a June 11, 2008 report and progress notes dated May 9 and 20, 2008 from Dr. Larkins. In a
May 9, 2008 progress note, Dr. Larkins reported that appellant injured his back on April 21,
2007 during a flight from Baghdad and provided physical findings and a treatment plan without
any diagnosis. In a May 20, 2008 progress note, he reported findings from the objective testing
and physical examination. Dr. Larkins stated: “[t]he mechanism of the extreme dive of the
transport plane in Iraq is entirely consistent [w]ith his current complaints and possible facet
injury.”
By decision dated November 24, 2008, the Office denied appellant’s request for
modification of the denial of his claim.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act; that the claim was filed within
the applicable time limitation; that an injury was sustained while 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 on a traumatic injury or an
occupational disease.4

1

The Board notes that, following the November 24, 2008 Office decision, the Office received additional
evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59
ECAB ___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued
February 27, 2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

5 U.S.C. §§ 8101-8193.

3

C.S., 60 ECAB ___ (Docket No. 08-1585, issued March 3, 2009).

4

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

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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.5
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.6 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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant alleged that he sustained an injury to his back when the C-130 airplane he was
flying in veered in flight while leaving from Baghdad, Iraq. The Office accepted that the
incident occurred at the time, place and in the manner alleged. The issue, consequently, is
whether the medical evidence establishes that he sustained an injury as a result of this incident.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant sustained a low back injury causally related to the April 21, 2007 work incident.
Appellant did not submit a rationalized medical report from an attending physician addressing
how the April 21, 2007 airplane incident may have caused or aggravated his claimed condition.
The medical evidence of record consists of reports and notes from Drs. Hanson, Larkins,
Mateva and Tashjian. Appellant also submitted a report from Dr. Nyeggen, a chiropractor, MRI
scans, bone scans and a discography procedure note. On September 25, 2007 Dr. Hanson
diagnosed bilateral leg paresthesias, right leg pain, lumbar spondylosis and low back pain. He
stated that appellant attributed his injury to leaving Baghdad on April 21, 2007 when the plane
took evasive maneuvers when it came under attack, but that he was unable to “explain the exact
5

B.F., 60 ECAB ___ (Docket No. 09-60, issued March 17, 2009).

6

D.B., 58 ECAB ___ (Docket No. 07-440, issued April 23, 2007).

7

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008); D.G., 59 ECAB ___ (Docket No. 081139, issued September 24, 2008).
8

Y.J., 60 ECAB ___ (Docket No. 08-1167, issued October 7, 2008); A.D., 58 ECAB ___ (Docket No. 06-1183,
issued November 14, 2006).
9

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

10

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

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etiology of his symptoms.” The Board has held that medical evidence which provides no
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.11 Dr. Hanson’s September 25, 2007 report does not address causal
relationship and therefore is not probative or effective in establishing appellant’s claim.
Appellant also submitted various reports dated between November 9, 2006 and
February 8, 2008 diagnosing low back pain and noting that appellant had no back problems until
after the April 21, 2007 incident. Dr. Tashjian’s various reports are of little probative value on
the issue of causal relationship because they lack an opinion on the causal relationship between a
medically-diagnosed condition and the identified employment incident. While he diagnosed
appellant with low back pain, he provided no explanation concerning how the identified
April 21, 2007 employment incident caused this condition. Reports lacking an opinion on causal
relationship are of little probative value.12 Furthermore, pain is a symptom and not a
compensable medical diagnosis.13
These deficiencies reduce the probative value of
Dr. Tashjian’s notes and reports and, therefore, they are insufficient to satisfy appellant’s burden
of proof.
Appellant also submitted a September 14, 2007 attending physician’s form in which
Dr. Tashjian diagnosed a herniated disc and low back pain. As to causation, Dr. Tashjian
checked “yes” to the question of whether the diagnosed conditions were employment related and
noted “possibly” as the explanation. The Board has held that, when a physician’s opinion on
causal relationship consists only of checking “yes” to a form question, without explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.14
Thus, this report is insufficient to support appellant’s burden of proof.
Similarly, Dr. Mateva’s November 21, 2007 report is insufficient to meet appellant’s
burden of proof. She diagnosed low back pain and history of perineurial cysts (Tarlov cysts) and
noted that appellant had no health problems until April 2007 when he fell and injured his back
while in Baghdad. As to appellant’s cysts, Dr. Mateva related that some studies described Tarlov
cysts as becoming symptomatic following a back trauma. The Board has held that an opinion
that a condition is causally related because the employee was asymptomatic is insufficient,
without greater rationale, to establish causal relation.15 Consequently, the Board finds that this
evidence is insufficient to establish appellant’s claim.
Appellant also submitted a June 11, 2008 report and progress notes dated May 9 and 20,
2008 from Dr. Larkins. On June 11, 2008 Dr. Larkins stated that appellant may have sustained a
facet injury or proximal nerve root compression due to the plane’s rapid loss of altitude. He
11

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

12

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52
ECAB 332 (2001).
13

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

14

D.D., 57 ECAB 734 (2006).

15

Michael S. Mina, 57 ECAB 379 (2006).

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noted that since the injury appellant had severe low back pain. In concluding, Dr. Larkins
opined that appellant’s condition was temporarily related to his service in Iraq based on the
employment incident history and reporting of events. In treatment notes dated May 9 and 20,
2008, he reiterated his opinion that appellant’s condition was due to the April 21, 2007
employment incident. As noted above, the mere fact that appellant was asymptomatic prior to
the injury is insufficient, without rationale, to establish that the condition is causally related to
the accepted employment injury. Furthermore, Dr. Larkins provided insufficient medical
rationale explaining the mechanism by which the April medical rationale is of little probative
value.16 Consequently, the Board finds that this evidence is insufficient to establish appellant’s
claim.
In a February 18, 2008 report, Dr. Nyeggen diagnosed severe low back pain which he
attributed to the April 21, 2007 injury when the plane appellant was riding in performed an
abrupt maneuver. There is no indication as to whether Dr. Nyeggen reviewed x-rays or made
diagnosis of a spinal subluxation based upon a review of x-rays. The Board finds that he is not a
physician as a chiropractor is no considered a physician under the Act unless it is established that
there is a spinal subluxation as demonstrated by x-ray to exist.17
Appellant also submitted MRI scans, bone scans, a discography procedure note and a
January 10, 2008 report from Ms. Goring, a registered nurse, in support of his claim that he
sustained a back condition on April 21, 2007. Reports of diagnostic testing submitted by
appellant do not offer any opinion on causal relationship between the diagnosed medical
condition and the April 21, 2007 employment incident. As to Ms. Goring’s report, the Board has
held that nurses are not physicians under the Act and are not competent to render a medical
opinion.18 Thus, these reports are of no probative value in establishing his traumatic injury
claim.19
CONCLUSION
The Board finds that appellant has not satisfied his burden of proof to establish that
he sustained an injury in the performance of duty on April 21, 2007 causally related to his
employment.

16

Caroline Thomas, 51 ECAB 451 (2000).

17

See 5 U.S.C. § 8101(2) (the term physician includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist); see also A.O., 60 ECAB ___ (Docket No. 08-580, issued January 28, 2009);
Mary A. Ceglia, 55 ECAB 626 (2004).
18

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).

19

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the November 24 and May 22, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elizabethtown, KY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 17-1586 &
17-1648
Issued: February 7, 2019

Case Submitted on the Record

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

On July 14, 2017 appellant, through counsel, filed a timely appeal from a June 14, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx598.2 On July 25, 2017 appellant, through counsel, filed a timely appeal from a July 5,
2017 merit decision of OWCP under OWCP File No. xxxxxx362.3 The Board finds that these
cases are not in posture for decision.

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

The Clerk of the Appellate Boards assigned the July 14, 2017 appeal Docket No. 17-1586.

3

The Clerk of the Appellate Boards assigned the July 25, 2017 appeal Docket No. 17-1648.

On October 2, 2015 appellant, then a 50-year-old rural mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 1, 2015 she injured her right shoulder and forearm in
the performance of duty.4 OWCP assigned that claim File No. xxxxxx598.
By decision dated November 12, 2015, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the October 1, 2015 employment incident
occurred, as alleged. Appellant subsequently requested reconsideration, but by decisions dated
June 29 and November 23, 2016 and June 14, 2017, OWCP denied modification of its prior
decision.
On November 10, 2015 appellant filed an occupational disease claim (Form CA-2) alleging
that she sustained osteoarthritis, bursitis, and tendinosis of the right shoulder in the performance
of her duties. OWCP assigned that claim File No. xxxxxx362. Appellant indicated that she first
became aware of her claimed condition and realized its relation to her federal employment on or
about October 28, 2015.5 On the reverse side of the claim form, appellant’s supervisor noted that
appellant stopped work on October 2, 2015 and had not returned, and the medical evidence
submitted by her in support of her claim discussed an October 1, 2015 fall at work which caused
injury to her arm and shoulder. By decision dated January 20, 2016, OWCP denied appellant’s
claim, finding that the evidence of record was insufficient to establish that the claimed work
event(s) occurred as described. It noted that it was unclear as to when she claimed factors of
employment contributed to her injury. Appellant subsequently requested reconsideration. By
decision dated June 21, 2016, OWCP modified the January 20, 2016 decision to find that it had
accepted that appellant’s work included casing mail and flats, pulling on 700 mailboxes daily, and
carrying parcels weighing up to 70 pounds. However, the claim remained denied as the evidence
of record was insufficient to establish causal relationship between those accepted work factors and
appellant’s diagnosed medical conditions. Appellant again requested reconsideration, but in its
July 5, 2017 decision, OWCP denied modification.
The record in OWCP File No. xxxxxx362 does not contain any development of appellant’s
claim in OWCP File No. xxxxxx598. Likewise, the record in OWCP File No. xxxxxx598 does
not contain any development of appellant’s claim in OWCP File No. xxxxxx362. In light of the
fact that appellant had identified the same claimed pain and shoulder trauma in both OWCP File
Nos. xxxxxx598 and xxxxxx362, it is essential for OWCP to consolidate the claim files and
determine whether they are duplicate claims. This will allow OWCP to consider all relevant claim
files in developing appellant’s claims. Moreover, to consider appellant’s appeals at this stage
would involve a piecemeal adjudication of the issues in appellant’s claims and raise the possibility

4

On December 17, 2015 OWCP received in File No. xxxxxx598 an undated handwritten statement from appellant.
Appellant explained that, when she walked through the door after parking her employing establishment vehicle to
reload, her foot got caught on a tray of mail. She threw her right arm out to catch a step, but missed, and her right arm
took the brunt of the fall, causing injury to her right arm and shoulder.
5

On December 17, 2015 OWCP received in File No. xxxxxx362, the same undated narrative statement that was
received in File No. xxxxxx598, wherein appellant explained that, when she walked through the door after parking
her employing establishment vehicle to reload, her foot got caught on a tray of mail. Appellant threw her right arm
out to catch a step, but missed, and her right arm took the brunt of the fall, causing injury to her right arm and shoulder.

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of inconsistent results. It is the Board’s policy to avoid such an outcome.6 Because it is essential
for the Board to review the medical evidence contained in both case files in order to render a full
and fair adjudication of the present appeals, this case will be set aside and remanded to OWCP to
consolidate OWCP File No. xxxxxx362 with OWCP File No. xxxxxx598. Reconstruction of the
record will be followed by any necessary further development and a de novo decision on the merits
of the claims, in order to protect appellant’s appeal rights.7
IT IS HEREBY ORDERED THAT the July 5 and June 14, 2017 decisions of the Office
of Workers’ Compensation Programs are set aside and the case is remanded for further proceedings
consistent with this order.
Issued: February 7, 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

6

See William T. McCracken, 33 ECAB 1197 (1982).

7

On remand, OWCP should review the evidence in both case files to determine whether appellant’s claim in File
No. xxxxxx362 constitutes a claim for a new injury or is a duplicate of the claim adjudicated under File No.
xxxxxx598.

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE NAVY, NAVAL
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DEPOT NORTH ISLAND, San Diego, CA,
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Employer
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___________________________________________ )
C.L., Appellant

Appearances:

Docket No. 07-2370
Issued: April 11, 2008

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On September 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 6, 2007, which denied his request for
an additional schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than a two percent hearing loss of the left ear, for
which he received a schedule award.
FACTUAL HISTORY
On November 13, 2006 appellant, then a 61-year-old supply clerk, filed a claim for
compensation alleging that he developed hearing loss due to his federal employment. He
became aware of his hearing loss in May 1986. Appellant noted that he had additional
workplace noise exposure until August 3, 2001, the date that he was removed from employment.

The record also contains documents pertaining to appellant’s prior claim for hearing loss and a
June 22, 1992 schedule award for two percent impairment of the left ear.1 The Office based its
June 22, 1992 schedule award on a June 1, 1992 report of an Office medical adviser who
reviewed the June 6, 1991 audiogram of Dr. Paul M. Goodman, a Board-certified
otolaryngologist and calculated that appellant had a two percent monaural hearing loss of the left
ear. The Office medical adviser further noted that, when appellant was originally hired in 1980,
he had a high frequency hearing loss in the left ear.
In a statement dated September 11, 2006, appellant indicated that, from January 1980 to
February 1991, he worked as a sheet metal mechanic and from September 6, 1991 to August 3,
2001, he worked as a supply clerk in the same aircraft overhaul and repair building where he
sustained his original hearing loss. As a supply clerk, he worked at a desk eight hours per day in
open hangars where aircraft carriers were drilled and riveted without hearing protection.
Appellant submitted employment establishment audiograms dated January 14, 1980 to
February 10, 2005.
The employing establishment submitted a notification of personnel action dated
February 5, 1991 which indicated that appellant was transferred from the position of sheet metal
mechanic for aircraft to a supply clerk effective February 24, 1991. In letters to the claims
examiner dated November 29 and December 29, 2006, it noted that the Office accepted
appellant’s claim for bilateral hearing loss in File No. 13-00912519, a closed file, with a date of
injury of December 10, 1990. On February 24, 1991 appellant’s position changed from a sheet
metal mechanic for aircraft to a supply clerk where he worked until his removal on
August 3, 2001. The employing establishment referenced a memorandum dated June 17, 1991,
which noted that, upon appellant’s transfer to the supply clerk position on February 24, 1991, he
was terminated from the medical surveillance program for noise exposure because the potential
health hazards for hearing loss were not identified in the supply clerk position.
By letter dated December 21, 2006, the Office advised appellant of the evidence needed
to establish his claim. The Office also requested that the employing establishment address the
sources of appellant’s noise exposure, decibel and frequency level, period of exposure and
hearing protection provided.
On January 10, 2007 appellant indicated that his last exposure to hazardous noise at work
was on August 3, 2001. He submitted audiograms dated October 6, 1997 and October 6, 2000.
In a June 22, 2007 statement of accepted facts, the Office noted appellant’s workplace
noise exposure beginning January 1980. From February 1991 to August 2001, appellant worked
as a supply clerk and was responsible for receiving and reviewing material requests, picking up
and delivering of emergency issue walk-throughs, providing parts for urgent work stoppage
repairs and researching data. The Office indicated that the extent of the exposure to occupational
noise was not known as there was no available noise level survey for review.

1

The claim pertaining to this schedule award is File No. 13-0950136 which has been combined with the file
before the Board, No. 132163386, regarding the November 13, 2006 claim.

2

By letter dated July 3, 2007, the Office referred appellant to Dr. Theodore Mazer, a
Board-certified otolaryngologist, for otologic examination and audiological evaluation. The
Office provided Dr. Mazer with a statement of accepted facts, available exposure information
and copies of all medical reports and audiograms.
Dr. Mazer performed an otologic evaluation of appellant on August 3, 2007 and
audiometric testing was conducted on his behalf on that date. Testing at the frequency levels of
500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed the following: right ear 35, 35, 35
and 35 decibels; left ear 55, 35, 30 and 45 decibels. In a report dated August 22, 2007,
Dr. Mazer noted that baseline testing in 1980 revealed hearing loss at 500 hertz (Hz) at 40
decibels prior to federal employment and was noted at 45 decibels in 1991. He noted that
comparing the initial testing in 1980 with that of 1991 on the left ear, there was no statistical
difference with only a five decibel change overall in some of the pure tones at 500, 1,000, 2,000
and 3,000 Hz and no change at 3,000 Hz. Dr. Mazer indicated that the June 1991 audiogram
resulted in a schedule award for hearing loss which was principally due to preexistent left-sided
hearing loss at 500 Hz unrelated to federal employment based noise exposure. Appellant was
subsequently transferred to a lower noise environment were no workplace hearing surveillance
tests were required because exposure was no longer considered to be hazardous. Dr. Mazer
opined that there was no evidence of any noise-induced hearing loss resulting in ratable
impairment in the course of federal employment to October 2000 and no evidence of any
progression of loss from the 1991 award to 2000. He further noted that, given the absence of
progression of a ratable loss at 2,000 Hz, it was improbable that appellant would have had any
ratable loss due to similar exposure by the time of his termination in 2001. Dr. Mazer noted that
the current audiogram showed impairment in both ears, left worse than right. He determined that
appellant was a candidate for amplification; however, this was not the result of exposure to noise
through 2001 as the hearing levels throughout federal employment were essentially unchanged
and, absent preexisting loss at 500 Hz on the left ear, appellant had questionable marginal rating
for hearing impairment. Dr. Mazer advised that no other test results from 1991 to 2001
confirmed a ratable loss and opined that the current test results reflected early presbycusis. He
concluded that there was insufficient evidence to support the progression of noise-induced
hearing loss after 1991.
By a decision dated September 6, 2007, the Office denied appellant’s claim for a
schedule award on the grounds that the evidence of record did not establish that he sustained
additional impairment due to his accepted noise exposure.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

3

good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps the losses at each
frequency are added up and averaged.6 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.7 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.8 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.9 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.10
The Board has long recognized that, if a claimant’s employment-related hearing loss
worsens in the future, he or she may apply for an additional schedule award for any increased
permanent impairment. The Board has recognized that a claimant may be entitled to an award
for an increased hearing loss, even after exposure to hazardous noise has ceased, if causal
relationship is supported by the medical evidence of record. In this latter instance, the request
for an increased schedule award is not deemed a new claim.11
Causal relationship is a medical issue that can be established only by medical evidence.12
The Board notes that the fact that a condition manifests itself or worsens during a period of
employment does not raise an inference of an employment relationship.13

4

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

5

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

6

Id.

7

Id.

8

Id.

9

Id.

10

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
11

Paul Fierstein, 51 ECAB 381 (2000).

12

Mary J. Briggs, 37 ECAB 578 (1986); Ausberto Guzman, 25 ECAB 362 ( 1974).

13

Paul D. Weiss, 36 ECAB 720 (1985); Hugh C. Dalton, 36 ECAB 462 (1985).

4

ANALYSIS
The Board notes that, in a decision dated June 22, 1992, the Office previously granted
appellant a schedule award for two percent monaural hearing loss for the left ear. The Board
notes that hazardous noise exposure ended on February 24, 1991 when appellant changed
positions from a sheet metal mechanic for aircraft to a supply clerk, where he worked until his
removal on August 3, 2001. An employing establishment memorandum dated June 17, 1991,
noted that appellant was terminated from the medical surveillance program for noise exposure
because he was transferred to another shop as a supply clerk where these potential health hazards
for hearing loss were not identified. The evidence supports that appellant’s workplace noise
exposure significantly decreased after February 24, 1991.
In a report dated August 22, 2007, Dr. Mazer determined that in accordance with the
A.M.A., Guides (5th ed. 2001), appellant had a 17 percent binaural hearing impairment14 based
on the August 3, 2007 audiogram performed on his behalf. He opined that while this showed a
greater hearing loss than previously awarded, he did not attribute the increased hearing loss to
appellant’s accepted noise exposure.
Dr. Mazer noted that baseline testing in 1980 for the left ear revealed hearing loss at 500
Hz at 40 decibels prior to federal employment and testing in 1991 for the left ear at 500 Hz
revealed hearing loss at 45 decibels. He indicated that the June 1991 audiogram resulted in a
schedule award; however, the hearing loss was principally due to preexistent left-side hearing
loss at 500 Hz unrelated to federal employment noise exposure. With regard to the right ear,
Dr. Mazer noted that appellant tested better in 1991 than in 1980 and in neither case had a ratable
impairment. He opined that there was no evidence of noise-induced hearing loss which resulted
in ratable impairment in the course of federal employment and particularly no evidence of any
work-related progression of loss from the 1991 award to 2000. Dr. Mazer indicated that in 1991
appellant transferred to a lower noise environment which did not require ongoing hearing
surveillance because exposure was no longer considered hazardous. He noted that, while the
current audiogram showed impairment in both ears, left worse than right, that appellant was a
candidate for amplification. However, Dr. Mazer advised that this was not the result of exposure
to noise at work through 2001 as the hearing levels throughout federal employment were
essentially unchanged and, absent preexisting loss at 500 Hz on the left, appellant had
questionable marginal rating for hearing impairment. He advised that no other test results from
1991 to 2001 confirmed a ratable loss and opined that the current test results reflected the impact

14

Testing for the right ear at frequencies of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 35, 35, 35
and 35 decibels respectively for a total of 140 decibels. These losses were divided by four for an average hearing
loss of 35 decibels. The average was reduced by 25 decibels (the first 25 decibels are deducted, as explain above) to
10 decibels, which was multiplied by 1.5 to arrive at a 15 percent monaural hearing loss for the right ear. Testing
for the left ear at the same frequencies revealed decibel losses of 55, 35, 30 and 45 decibels, respectively for a total
of 165 decibels. These losses were divided by four for an average hearing loss of 41.25 decibels. The average was
reduced by 25 decibels (as explained above) to equal 16.25 decibels, which was multiplied by 1.5 to arrive at a
monaural hearing loss of 24.37. The lesser loss of 15 is multiplied by 5, then added to the greater loss of 24.37 and
the total is divided by 6 to arrive at the amount of the binaural hearing loss of 16.56 rounded up to 17 percent.

5

of early presbycusis. In particular, Dr. Mazer noted that an October 6, 2000 audiogram15
revealed no ratable impairment. He noted that there was insufficient evidence to suggest that
appellant’s progression of noise-induced hearing loss was related to his employment.
The Board finds that the medical evidence does not support that appellant has any
increased hearing loss causally related to workplace noise exposure or to the progression of his
previously accepted hearing loss. Dr. Mazer provided a thorough and reasoned medical report
explaining how the increased hearing loss was not due to the employment but was the result of
presbycusis. Appellant has not submitted any recent medical opinion supporting that any
increase in his hearing loss is employment related. In the absence of reasoned medical opinion
evidence to establish that appellant has increased hearing loss causally related to his accepted
noise exposure, the Office properly denied his request for an additional schedule award.16
CONCLUSION
The Board finds that appellant is not entitled to an additional schedule award for
increased hearing loss causally related to his work-related hearing loss condition.
ORDER
IT IS HEREBY ORDERED THAT the September 6, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
15

This audiogram revealed decibels losses of 20, 20, 5 and 50 on the right at the frequency levels of 500, 1,000,
2,000 and 3,000 cps. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed
decibels losses of 40, 20, 10 and 30 respectively.
16

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, LA TUNA,
Anthony, NM, Employer
__________________________________________

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Appearances:
Fernando Dominguez, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1079
Issued: November 3, 2016

Case Submitted on the Record

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

JURISDICTION
On April 26, 2016 appellant, through her representative, filed a timely appeal of a
November 9, 2015 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 to consider the merits of the case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its November 9, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant has more than two percent permanent impairment of each
of her lower extremities for which she received schedule awards.
On appeal appellant’s representative contends that Dr. Joshua Herzog’s report contained
factual and medical errors and that his examination was cursory such that appellant’s attending
physician’s evaluation was the weight of the medical evidence.
FACTUAL HISTORY
On December 5, 2013 appellant, then a 39-year-old senior officer specialist, filed a
traumatic injury claim (Form CA-1) alleging that on that date she tripped on an uneven curb
which caused her to fall on her knees, torso, and the palm of her hands. She had difficulty
arising and immediate bilateral knee pain. Appellant sought medical treatment from
Dr. Charles B. Broome, an orthopedic surgeon, on December 5, 2013 who noted that appellant
had experienced prior internal derangement of her left knee including a tear of the medial
cartilage and a bucket-handle tear of the lateral meniscus on October 1, 2013. Dr. Broome
reviewed bilateral lower leg x-rays and diagnosed bilateral knee contusions on
December 5, 2013.
In a note dated December 18, 2013, Dr. Broome reported appellant’s improvement in her
left knee, but localized pain, swelling, and stiffness in the right knee with locking, buckling, and
sharp lateral pain. Appellant underwent a chest x-ray on January 3, 2014 which was normal.
She underwent a right knee arthroscopic partial lateral meniscectomy on January 7, 2014 due to
an acute tear of the posterior horn of the lateral meniscus. On January 8, 2014 OWCP accepted
appellant’s claim for bilateral knee contusions.
Appellant submitted an operative report dated January 25, 2014 for left knee arthroscopy
and partial resection of the medial meniscus with chondroplasty. OWCP accepted the additional
conditions of aggravation of unspecified internal derangement of the right knee, tear of the
medial meniscus of the right knee and tear of the medial meniscus of the left knee on
March 5, 2014. On March 21, 2014 OWCP corrected the March 5, 2014 decision to include
acceptance of bilateral knee contusions, aggravation of unspecified internal derangement of the
right knee, and tear of the right lateral meniscus.
Appellant reported that her left knee meniscectomy was necessitated by a
nonemployment-related motor vehicle accident occurring in 2012. She returned to part-time,
light-duty work on April 4, 2014.
Dr. Alvaro A. Hernandez, a Board-certified orthopedic surgeon, examined appellant on
June 2, 2014. He reported appellant’s history of injury and right knee surgery. Dr. Hernandez
found severe swelling of the right knee, constant pain, and appellant’s report of a feeling of
weakness in the knee. He noted that appellant was limping and found tenderness over the lateral
joint line and patellofemoral joint in the right knee. Dr. Hernandez reported atrophy on the right
with mild patellofemoral crepitus. He diagnosed chondromalacia of the right knee. On June 16,
2014 Dr. Hernandez examined appellant and reviewed a June 5, 2014 magnetic resonance

2

imaging (MRI) scan of the right knee which demonstrated a complex tear of the lateral meniscus,
a free margin tear of the medial meniscus and grade three chondromalacia of the medial femoral
condyle with subchondral edema. He diagnosed lateral and medial meniscus tears in the right
knee. On June 25, 2014 Dr. Hernandez recommended repeat right arthroscopic knee surgery.
Dr. Hernandez performed a comprehensive arthroscopy of the right knee on July 24,
2014 which included a partial lateral meniscectomy and chondroplasty of the medial and lateral
compartments of the right knee.
Dr. Hernandez examined appellant on November 10, 2014 and found mild tenderness in
her right knee with no anterolateral instability, stable medial collateral ligament, and a negative
anterior drawer test. He indicated that appellant could return to regular duty work.
Dr. Hernandez referred appellant for a maximum medical improvement (MMI) evaluation.
Appellant returned to full duty on November 11, 2014.
On January 7, 2015 appellant filed a claim for compensation (Form CA-7) requesting a
schedule award. In a report dated December 29, 2014, Dr. Michael Boone, a Board-certified
physiatrist, found that appellant had reached MMI on December 29, 2014. He reported
appellant’s history of injury and medical treatment. Dr. Boone noted appellant’s ongoing
constant medial knee pain with difficulties arising from a sitting position. He found no
instability in the right knee, with no effusion, no instability to valgus stressing, and a negative
Lachman’s sign. Dr. Boone reported medial joint line tenderness. He listed appellant’s right
knee range of motion as 0 degrees of extension and 90 degrees of flexion.4 Dr. Boone applied
the American Medical Association, Guides to the Evaluation of Permanent Impairment,5 and
found that partial medial and lateral meniscectomies were a class 1 impairment with 10 percent
default lower extremity impairment.6 He opined that appellant had a mild deficit in range of
motion yielding a grade 1 physical examination adjustment factor.7 Dr. Boone noted that the
MRI scan study with confirmation of medial and lateral meniscal tears resulted in a grade 1,
clinical studies adjustment factor.8 He further noted that appellant’s lower limb questionnaire
resulted in a mild or grade 1, functional history adjustment factor. Dr. Boone applied the
formula of the A.M.A., Guides and determined that appellant’s adjustment was 0 resulting in 10
percent impairment of the right lower extremity.
OWCP’s medical adviser reviewed Dr. Boone’s report on January 28, 2015 and found
that the operative reports did not support a right knee partial medial meniscectomy, but rather
two partial lateral meniscectomies. He further noted that appellant’s claim had been accepted for
bilateral knee conditions and that appellant underwent a left knee arthroscopy on January 25,

4

Id. at 549, Table 16-23.

5

A.M.A., Guides, 6th ed. (2009)

6

Id. at 509, Table 16-3.

7

Id. at 517, Table 16-27.

8

Id. at 519, Table 16-8.

3

2014 which was not included in Dr. Boone’s impairment rating. OWCP requested an additional
report from Dr. Boone due to these defects.
OWCP requested a supplemental report from Dr. Boone on March 26, 2015 addressing
the absence of a partial medial meniscectomy on the right. It also requested that he address
appellant’s permanent impairment of her left lower extremity.
In a March 27, 2015 report, Dr. Boone noted that appellant underwent a partial medial
meniscectomy of the left knee on January 25, 2014. He found no obvious effusion or angulation
of the left knee, but reported some medial joint space tenderness. Dr. Boone including that
appellant’s range of motion of her left knee was 0 to 109 degrees. He found that appellant’s loss
of range of motion was grade modifier 1 for physical examination adjustment,9 that her clinical
studies adjustment was grade modifier 1 as her MRI scan confirmed this problem,10 and that
appellant’s questionnaire resulted in a grade modifier 1 for functional history adjustment.11
Dr. Boone concluded that appellant had 10 percent lower extremity impairment due to loss of
range of motion.12
On April 13, 2015 OWCP’s medical adviser reviewed Dr. Boone’s supplemental report
and found that he continued to apply impairment ratings based on both medial and lateral
meniscectomies of both knees. He requested referral to a second opinion evaluator.
OWCP referred appellant for a second opinion evaluation with Dr. Joshua P. Herzog, a
Board-certified orthopedic surgeon, on May 27, 2015.
Dr. Hernandez examined appellant on April 27, 2015 due to increased left knee pain. He
attributed this condition to appellant compensating for the right knee as it hurt more. Appellant
underwent a left knee MRI scan on May 14, 2015 which demonstrated a discoid lateral
meniscus, but no other abnormalities. On May 27, 2015 Dr. Hernandez reviewed appellant’s left
knee MRI scan and noted that she experienced pain with compression of the patella against the
front of the femur. He diagnosed chondromalacia of the left knee and recommended a joint
injection. On July 15, 2015 Dr. Hernandez found that appellant’s left knee pain had improved.
Dr. Herzog examined appellant on July 16, 2015 and reviewed her history of injury and
medical treatment. Right knee palpation demonstrated tenderness over the lateral joint line while
left knee palpation revealed tenderness over the medial joint line. Dr. Herzog reported mild
effusion bilaterally, with negative valgus, varus, Lachman’s, McMurray’s, and posterior drawer
tests bilaterally. He found that appellant’s range of motion in her bilateral knees was within
normal limits from 0 to 120 degrees. Appellant’s sensory testing was also within normal limits
as was her strength testing. Dr. Herzog found that appellant had reached MMI. He diagnosed
bilateral knee contusion, right knee lateral meniscus tear and left knee medial meniscus tear.
9

Id. at 549, Table 16-23; 517, Table 16-7.

10

Id. at 519, Table 16-8.

11

Id. at 516, Table 16-6.

12

Id. at 549, Table 16-23.

4

Dr. Herzog applied the A.M.A., Guides and noted that appellant’s right knee with two partial
lateral meniscectomies was class 1 impairment with a default value of 2.13 He determined that
appellant’s grade modifiers were grade 1 and that her net adjustment was 0. Dr. Herzog found
that appellant had two percent impairment of the right lower extremity. He found that a partial
left medial meniscectomy was class 1 impairment.14 Dr. Herzog found that appellant’s grade
modifiers for functional history, and physical examination were grade 1. He noted that there
were no clinical studies available prior to appellant’s left medial meniscectomy, and awarded
clinical studies grade modifier of 0. Dr. Herzog applied the net adjustment formula and
determined that appellant had an adjustment of negative one or grade B impairment of two
percent of the left lower extremity.15
OWCP’s medical adviser reviewed Dr. Herzog’s report on August 21, 2015 and agreed
with his findings and conclusions.
By decision dated November 9, 2015, OWCP granted appellant schedule awards for two
percent permanent impairment of each of her lower extremities.
LEGAL PRECEDENT
The schedule award provision of FECA16 and its implementing regulations17 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.18
The protocol and formula of the sixth edition of the A.M.A., Guides requires that the
physician determine the Class of Diagnosis (CDX) for the lower extremity and apply the
appropriate grade modifiers for Functional History, (GMFH) Physical Examination (GMPE) and

13

A.M.A., Guides, 509, Table 16-3.

14

Id.

15

Id.

16

5 U.S.C. §§ 8101-8193, 8107.

17

20 C.F.R. § 10.404.

18

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

5

Clinical Studies (GMCS) and apply the following formula (GMFH - CDX) + (GMPE - CDX) +
(GMCS – CDX) to reach the appropriate Grade within the class of diagnosis.19
ANALYSIS
The Board finds that appellant has no more than two percent permanent impairment of
each of her lower extremities for which she received schedule awards.
In support of her claim for schedule awards, appellant submitted reports from Dr. Boone
dated December 29, 2014 and March 27, 2015. In his initial report, Dr. Boone did not base his
right leg impairment rating on a proper history of injury. Instead, he determined that appellant
had both medial and lateral meniscectomies in the right knee and based his impairment rating on
this erroneous conclusion. The record establishes that appellant underwent two separate partial
lateral meniscectomies on the right, but no medial meniscectomy. Dr. Boone completed a
supplemental report on March 27, 2015 addressing appellant’s permanent impairment of her left
lower extremity. In this report, he based his impairment rating of 10 percent on appellant’s loss
of range of motion of her left knee. The Board notes that the A.M.A., Guides provide that
diagnosis-based impairment is the method of choice for calculating impairment.20 Dr. Boone did
not provide an explanation of why he believed that this impairment rating was more appropriate
than the diagnosis-based estimates favored by the A.M.A., Guides. Without any explanation, the
March 27, 2015 report is insufficient to establish appellant’s permanent impairment of her left
lower extremity for schedule award purposes.
OWCP’s medical adviser reviewed Dr. Boone’s reports and noted the defects described
above. He requested a second opinion evaluation. It is well established that, when the attending
physician fails to provide an estimate of impairment conforming to the A.M.A., Guides his
opinion is of diminished probative value in establishing the degree of permanent impairment and
OWCP may rely on the opinion of its medical adviser.21
Contrary to appellant’s arguments on appeal Dr. Herzog’s opinion is entitled to the
weight of the medical opinion evidence in establishing her permanent impairment for schedule
award purposes. He properly applied the diagnosis-based estimates and determined the Class of
appellant’s impairments, noting that appellant’s right lateral partial meniscectomy and left
medial partial meniscectomy both had class 1 grade C impairments of two percent.22 Dr. Herzog
then determined the grade modifiers for functional history, physical examination, and clinical
studies and applied the formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS – CDX) to reach
the appropriate grade within the class of diagnosis finding grade C for appellant’s right lower
extremity and grade B for appellant’s left lower extremity or two percent impairment of each of
appellant’s lower extremities. OWCP’s medical adviser concurred with Dr. Herzog’s findings
and conclusions.
19

A.M.A., Guides 521.

20

Id. at 461.

21

Linda Beale, 57 ECAB 429, 434 (2006).

22

A.M.A., Guides 509, Table 16-3.

6

The Board finds that the weight of the medical opinion evidence, based on a proper
factual background and well-reasoned application of the A.M.A., Guides, as represented by the
reports of Dr. Herzog and OWCP’s medical adviser, established that appellant has no more than
two percent permanent impairment of each of her lower extremities for which she has received
schedule awards.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than two percent permanent impairment of
each of her lower extremities for which she has received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, New York, NY,
Employer
__________________________________________

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

Docket No. 09-2175
Issued: May 21, 2010

Case Submitted on the Record

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

JURISDICTION
On August 27, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated March 27, 2009. Under 20 C.F.R. § 501.3(e), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a lower back injury in the performance of duty.
FACTUAL HISTORY
Appellant, a 32-year-old special agent, filed a Form CA-1 claim for benefits on
November 14, 2008, alleging that he strained his lower back on November 5, 2008 while
engaged in firearms training, running and entering/exiting vehicles. He indicated on the form
that he stopped working on the date of injury and sought treatment from Dr. Kevin Nguyen, a
specialist in emergency medicine, on November 5, 2008. Dr. Nguyen stated on the form that he
did not witness appellant’s alleged injury; he stated, however, that appellant informed him about

the incident. He also indicated on the form that he provided medical treatment to appellant on
November 5, 2008.
In a November 6, 2008 treatment note, Dr. Nguyen placed appellant on disability until
November 9, 2008.
Appellant underwent a computerized tomography (CT) scan on November 6, 2008, the
results of which were received by the Office on February 6, 2009. The CT scan indicated mild
degenerative changes in the thoracic and lumbar spine, with mild diffuse disc bulge at L4-5.
In a Form CA-16 dated November 11, 2008, Dr. Neil Roth, a Board-certified orthopedic
surgeon, indicated that he placed appellant on total disability from November 5 to 17, 2008. He
checked a box indicating that the condition found was caused or aggravated by the employment
activity described. An employing establishment official signed the form, approving medical
treatment for an injury which occurred on November 5, 2008. Appellant underwent x-rays of the
lumbosacral spine on November 11, 2008, which indicated spondylolysis at L5.
In a report dated December 9, 2008, received by the Office on February 6, 2009, Dr. Neil
Roth, a specialist in orthopedic surgery, noted continued complaints of low back pain and leftsided buttock pain with no radiation, no numbness or tingling or weakness. He diagnosed low
back strain and lumbar spasm and recommended that he continue with physical therapy. Dr. Roth
stated that appellant could be released to light duty providing it was available. In a December 9,
2008 form report, he diagnosed lumbar spasm and outlined work restrictions for appellant. In a
form report dated December 10, 2008, Dr. Roth diagnosed lumbosacral spasm and radiculitis.
In a treatment note dated January 6, 2009, Dr. Roth essentially reiterated his previously
stated findings and conclusions.
By letter dated February 17, 2009, the Office noted that the claim had initially been
administratively handled with no time lost from work; it authorized payment for a limited amount
of medical expenses. It stated that it was now required to determine whether appellant sustained a
work-related injury on November 5, 2008. The Office advised him that the evidence was not
sufficient to establish that he actually experienced the incident or employment factor alleged to
have caused his injury. In addition, it stated that it was unclear what work factors caused the
injury. The Office therefore asked appellant to provide a detailed statement explaining what
activities he was performing on November 5, 2008 that caused the injury and to submit statements
from any persons who witnessed his injury or had immediate knowledge of it. It asked him to
submit a comprehensive medical report from his treating physician describing his symptoms and
the medical reasons for his condition and an opinion as to whether his claimed condition was
causally related to his federal employment. The Office stated that appellant had 30 days to submit
the requested information.
By decision dated March 27, 2009, the Office denied appellant’s claim, finding that he
failed to establish fact of injury. It stated that he failed to submit a clear statement regarding the
basis of his claim; it therefore found that the factual basis of his claim was unclear and insufficient
to establish that the incident occurred on the date, at the time and in the manner he alleged. The
Office further found that the medical evidence appellant submitted lacked sufficient medical

2

rationale to establish that the claimed diagnoses were sustained in connection with the reported
November 5, 2008 incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
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.4 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.5
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged or whether the alleged injury was in the performance of duty,6 nor can it find fact
of injury if the evidence fails to establish that the employee sustained an “injury” within the
meaning of the Act. An injury does not have to be confirmed by eyewitnesses in order to establish
the fact that an employee sustained an injury in the performance of duty, as alleged, but the
employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.7 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury
and failure to obtain medical treatment may cast doubt on an employee’s statements in determining
whether he or she has established his or her claim.8
1

5 U.S.C. § 8101 et seq.

2

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

3

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

4

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

5

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

6

Pendleton, supra note 2.

7

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
8

See Constance G. Patterson, 41 ECAB 206 (1989).

3

ANALYSIS
In the present case, the Office found that the record contained insufficient evidence
supporting that the claimed event occurred at the time, place and in the manner alleged. It noted
that although appellant stated on his CA-1 form that he injured his lower back while engaged in
firearms training, running and exiting and entering a vehicle on November 5, 2008, he failed to
provide a clear account of the manner in which the November 5, 2008 work incident resulted in the
claimed injury. The Office concluded that appellant did not establish that he sustained the injury in
the performance of duty on November 5, 2008. The Board finds, however, that he presented
sufficient evidence to establish that he injured his lower back at the time, place and in the manner
alleged.9 As stated above, the Board has held that an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.10 Although no one witnessed the incident and although
the employing establishment challenged appellant’s account of how the injury occurred, his
statement that he experienced pain on November 5, 2008 while using firearms and running and
getting in and out of a vehicle during a training exercise was not contradicted by any documentary
evidence in the record. In addition, Dr. Nguyen indicated on the CA-1 form that appellant sought
medical attention on the date he alleged the incident to have occurred. On the November 11, 2008
CA-16 form Dr. Roth stated that he had placed appellant on total disability as of November 5, 2008
for a work incident which took place on November 5, 2008; an employing establishment official
signed the form, approving medical treatment for an injury which occurred on November 5, 2008.
Appellant sought additional medical treatment and underwent diagnostic tests on November 6,
2008, one day after the occurrence of the alleged work incident.
The Board finds that the totality of this evidence is sufficient to establish that appellant
sustained an incident in the performance of duty on November 5, 2008. The Office subsequently
controverted the claim and contended that he did not experience the incident as alleged on the date
in question. However, the record contains no contemporaneous factual evidence indicating that the
claimed November 5, 2008 work incident did not occur as alleged.11 Under the circumstances of
this case therefore the Board finds that appellant’s allegations have not been refuted by sufficiently
strong or persuasive evidence. The Board finds that the evidence of record is sufficient to establish
that the incident in which he claimed to have injured his lower back on November 5, 2008
occurred at the time, place and in the manner alleged.
The Board finds, however, that appellant failed to submit rationalized medical opinion
evidence to sufficiently describe or explain the medical process by which the claimed November 5,
2008 work accident would have been competent to cause the claimed injury. In this regard, 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.12
9

Id.

10

Id. Buffington, 34 ECAB 104 (1982).

11

See Thelma Rogers, 42 ECAB 866 (1991).

12

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

4

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 his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.13 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
Dr. Roth submitted several reports in which he stated findings on examination, noted
complaints of lower back pain, outlined work restrictions and diagnosed lumbar spasm and
radiculitis. A November 11, 2008 lumbosacral x-ray showed spondylolysis at L5. However,
Dr. Roth did not provide an opinion regarding the work relatedness of appellant’s alleged
conditions. He checked a box indicating that the condition found was caused or aggravated by the
employment activity described in a November 11, 2008 CA-16 form and extended appellant’s total
disability through November 17, 2008. However, reports which support causal relationship with a
checkmark are insufficient to establish the claim, as the Board has held that without further
explanation or rationale, a checked box is not sufficient to establish causation.14 There is no
indication in the record therefore that appellant’s diagnosed lower back conditions were work
related.
Dr. Roth’s medical reports are of limited probative value in that they did not provide
adequate medical rationale in support of his conclusions.15 These reports did not describe
appellant’s accident in any detail or how the accident would have been competent to cause the
claimed lower back condition. 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.16 Appellant failed to provide a
rationalized, probative medical opinion relating his current condition to any factors of his
employment. Therefore, he failed to provide a medical report from a physician that the work
incident of November 5, 2008 caused or contributed to the claimed lower back injury.17
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant therefore did not provide a medical opinion to
sufficiently describe or explain the medical process through which the November 5, 2008 work
13

Id.

14

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

15

William C. Thomas, 45 ECAB 591 (1994).

16

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

17

In his appeal to the Board, appellant contends that he never received the Office’s February 17, 2009
developmental letter requesting additional factual and medical information in support of his claim. Under the
mailbox rule, it is presumed, absent evidence to the contrary, that notice mailed to an individual in the ordinary
course of business was received by that individual. The presumption arises when the record shows that the notice
was properly addressed and mailed. See Levi Drew, Jr., 52 ECAB 442 (2001); Kimberly A. Raffle, 56 ECAB
243 (1999). The copy of the Office’s February 17, 2009 letter contained in the record clearly indicates that it was
sent to appellant’s address of record, 672 10th Street, Apt. 2, Brooklyn, N.Y., 11215, which he provided on his CA-1
form. The Board therefore rejects this contention.

5

incident would have caused the claimed injuries. Accordingly, as he has failed to submit any
probative medical evidence establishing that he sustained an injury to his lower back in the
performance of duty on November 5, 2008, the Office properly denied his claim for
compensation.
CONCLUSION
The Board finds that the Office of Workers’ Compensation Programs properly found that
appellant failed to meet his burden of proof to establish that he sustained a lower back injury to
in the performance of duty on November 5, 2008.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTHPORT VETERANS HOSPITAL,
Northport, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 11-514 & 11-653
Issued: November 9, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2010 appellant, through counsel, filed a timely appeal from the Office
of Workers’ Compensation Programs’ (OWCP) decision dated November 29, 2010 denying
modification of a loss of wage-earning capacity determination. The Board assigned Docket No.
11-514. On January 19, 2011 appellant’s counsel filed a timely appeal from a November 29,
2010 decision concerning the termination of her compensation based on her refusal of an offer of
suitable work. The Board assigned Docket No. 11-653. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of both cases.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that a
modification of the loss of wage-earning capacity determination is warranted; and (2) whether

1

5 U.S.C. § 8101 et seq.

OWCP properly terminated appellant’s compensation benefits on October 8, 2009 pursuant to
5 U.S.C. § 8106(c).
On appeal, appellant’s attorney asserts that both November 29, 2010 decisions are
contrary to fact and law. He contends that the November 22, 2006 wage-earning capacity was
erroneous as the constructed position was outside appellant’s work restrictions.
FACTUAL HISTORY
This case has previously been before the Board. In the first appeal, the Board, in an
August 25, 1997 decision, set aside decisions of OWCP dated August 19, April 14 and
February 15, 1994.2 The Board found the evidence of record sufficient to warrant further
development of the issue as to whether appellant sustained a recurrence of disability beginning
November 29, 1993 causally related to her accepted April 13, 1992 employment injury.3 In the
second appeal, the Board issued a decision on July 24, 2001, in which it found an unresolved
conflict in the medical opinion evidence as to whether appellant sustained a recurrence of
disability beginning November 29, 2003.4 Thus, the Board set aside OWCP’s February 1, 1999
decision denying her claim for a recurrence of disability beginning November 29, 1993 and
remanded for further development. In the third appeal, the Board issued a decision on July 16,
2009 affirming OWCP’s January 17, 2008 overpayment decision.5 On June 10, 2010 in a fourth
appeal, the Board issued an order remanding the case and setting aside a June 30, 2009 nonmerit
decision.6 The Board found OWCP erred in denying a merit review of appellant’s request for
modification of a November 22, 2006 loss of wage-earning capacity decision. The facts
surrounding the appeals were provided in the Board’s prior decisions and are incorporated herein
by reference. The facts relevant to the current appeal are set forth below.
In a September 13, 2005 report, Dr. Richard L. Collins, a second opinion Board-certified
orthopedic surgeon, diagnosed resolved cervical and lumbosacral strains and herniated disc at
L3-4 and L4-5. He indicated that appellant was capable of working full time with restrictions,
which included up to four hours of sitting, walking and standing and no lifting, pulling or
pushing more than 20 pounds.
In a November 22, 2006 decision, OWCP reduced appellant’s compensation to reflect its
determination that she was capable of earning wages in the constructed position of telephone
solicitor working a 40-hour week. It found that this represented her wage-earning capacity based
upon the report of Dr. Collins.
2

Docket No. 95-619 (issued August 25, 1997).

3

On April 24, 1992 appellant, then a 26-year-old respiratory therapist, filed a traumatic injury claim alleging that
she injured her back while lifting a patient on April 13, 1992. OWCP accepted the claim for cervical and
lumbosacral sprains and herniated disc at L3-4 and L4-5.
4

Docket No. 99-1516 (issued July 24, 2001).

5

Docket No. 08-1157 (issued June 16, 2009).

6

Docket No. 09-1977 (issued June 10, 2010).

2

In a January 8, 2007 report, Dr. Sanford A. Ratzan, appellant’s treating Board-certified
orthopedic surgeon, reviewed Dr. Collins’ report and work restrictions and noted that appellant’s
complaints of persistent pain when sitting or standing for periods of time. A physical
examination revealed restricted lumbosacral flexion and paraspinal lumbar muscle spasm.
Dr. Ratzan reviewed the position description for telephone solicitor and opined that appellant
was unable to perform this job as she had difficulty sitting for short periods of time as well as
difficulty getting up and down from a chair.
On September 24, 2007 OWCP referred appellant to Dr. Jeffrey S. Levine, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion evidence between
Dr. Ratzan, appellant’s treating Board-certified orthopedic surgeon, and Dr. Collins, a second
opinion Board-certified orthopedic surgeon, regarding appellant’s work restrictions.
In an October 31, 2007 report, Dr. Levine, based upon a review of the medical records,
statement of accepted facts and physical examination diagnosed resolved cervical strain, chronic
lower back pain and nonemployment-related cubital tunnel syndrome. He concluded that
appellant was capable of working full time with restrictions. The restrictions he found were no
lifting more than 10 pounds or 5 pounds on a repetitive basis; refrain from strenuous pulling and
pushing; no remaining in one position for more than 2 hours; a 15-minute break every 2 hours;
and the ability to frequently change position as needed.
On March 5, 2008 the employing establishment offered appellant the position of medical
support assistant based on the work restrictions set by Dr. Levine, in his October 31, 2007 report.
The position was located in Northport, New York. The employing establishment stated that it
had contacted two of its facilities within 50 miles of her current residence, Fountain Hill,
Arizona, and neither had responded. The position description indicated that the duties and
responsibilities were clerical and included answering the telephone, mailings, trending
information, reviewing patient response to health-related correspondence and tracking. The
physical restrictions were listed as two hours of sitting at a time and standing; six hours of
walking; limited bending/stooping and twisting; up to one pound of lifting, pushing and pulling
for one half to one hour per day; and a 15-minute break every two work hours. Lastly,
Dr. Levine concluded that the job of telephone solicitor was within appellant’s work restrictions
and she was capable of performing this position.
On March 13, 2008 appellant declined the position on the grounds that it was medically
unsuitable, she had been separated from service with the employing establishment and no longer
resided in the commuting area of Northport, New York.
On April 1, 2008 OWCP informed appellant that it had reviewed the physical
requirements of the offered position and had determined that it was suitable as it conformed with
the her work capabilities. The employing establishment confirmed that the position remained
available to her. OWCP instructed appellant that she must, within 30 days, either accept the
position or provide a written explanation of the reason she did not accept the position, or she
could lose her right to compensation under 5 U.S.C. § 8106(c) of FECA.

3

In an April 10, 2008 letter, appellant’s counsel rejected the job offer on the grounds that
she was not physically capable of performing the job and the position was not near her current
residence.
On July 9, 2009 OWCP informed appellant that it had reviewed the physical
requirements of the offered position and had determined that it was suitable as it conformed to
her work capabilities. The employing establishment confirmed that the position remained
available to her. OWCP instructed appellant that she must, within 30 days, either accept the
position or provide a written explanation of the reason she did not accept the position, or she
could lose her right to compensation under 5 U.S.C. § 8106(c) of FECA.
In a July 23, 2009 letter, appellant’s counsel contended the offered position was not
suitable as appellant currently resided in Arizona and the position was located in New York; the
work restrictions of the offered position were outside her current medical restrictions and that the
medical report upon which the offered position was based was more than two years old.
By letter dated August 13, 2009, OWCP found that the reasons given by appellant for
refusing the offered position were not valid. It gave her 15 additional days to accept the position
or to make arrangements to report to this position. OWCP noted that, if she did not accept the
position within 15 days of the date of the letter, her right to compensation for wage loss or a
schedule award would be terminated pursuant to section 8106 of FECA. It added that it would
not consider any further reasons for refusal.
By decision dated September 10, 2009, OWCP terminated appellant’s compensation
effective September 13, 2009 based on her refusal of an offer of suitable work, pursuant to 5
U.S.C. § 8106(c).
On August 31, 2010 appellant’s counsel requested reconsideration of the September 10,
2009 decision termination her wage-loss compensation pursuant to section 8106(c).
In a November 29, 2010 decision, OWCP denied modification of the November 22, 2006
loss of wage-earning capacity decision.
In a separate November 29, 2010 decision, OWCP denied modification of the
September 10, 2010 decision terminating her wage-loss compensation pursuant to section
8106(c).
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.7 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8 OWCP’s procedure manual provides that, if a
7

T.M., Docket No. 08-975 (issued February 6, 2009); D.M., 59 ECAB 164 (2007); Harley Sims, Jr., 56 ECAB
320 (2005).
8

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

4

formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss.9 The procedure
manual further indicates that, under these circumstances, the claims examiner will need to
evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity decision.10
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.11 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.12
In addition, Chapter 2.814.11 of OWCP’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If OWCP is seeking modification, it must establish that the original rating was in error, that
the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.13
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained cervical and lumbosacral sprains and herniated
disc at L3-4 and L4-5 as a result of her accepted April 13, 1992 employment injury. In a
November 22, 2006 decision, it adjusted her compensation to reflect its determination that she
was capable of earning wages in the constructed position of telephone solicitor for 40 hours per
week. Appellant’s counsel does not contend that there has been a material change in the nature
and extent of her injury-related condition or that she has been retrained or otherwise vocationally
rehabilitated. On appeal he contends that the original wage-earning capacity determination was
erroneous.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., supra note 7.
11

See Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000); Ernest Donelson, Sr.,
35 ECAB 503, 505 (1984); A.J., Docket No. 10-619 (issued June 29, 2010); D.M., supra note 7.
12

See F.B., Docket No. 10-99 (issued July 21, 2010); Harley Sims, Jr., supra note 7; Stanley B. Plotkin, supra
note 11.
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.11 (October 2009).

5

Determining Wage-Earning

The Board finds that appellant also has not shown that the original determination of her
wage-earning capacity was erroneous. Appellant noted that the work restrictions provided by
both Drs. Collins and Levine support her contention that the constructed position was outside her
work restrictions. She noted that Dr. Collins’ restrictions were for up to four hours of sitting,
standing and walking while the restrictions provided by Dr. Levine provided for two hours of
sitting at a time and standing; six hours of walking; limited bending/stooping and twisting; up to
one pound of lifting, pushing and pulling for one half to one hour per day; and a 15-minute break
every two work hours. Appellant contends that on the basis of these restrictions the constructed
position of telephone solicitor working a 40-hour week was erroneous. However, both
Drs. Collins and Levine concluded that appellant was capable of working full time or 40 hours
per week with restrictions.
Moreover, Dr. Levine was selected as the impartial medical examiner to resolve the issue
of appellant’s work restrictions, a conflict which arose between Dr. Ratzan, appellant’s treating
physician, and Dr. Collin, a second opinion physician. He concluded that appellant’s
employment-related cervical condition had resolved, that appellant continued to experience back
pain but that she was capable of working with restrictions. Dr. Levine reviewed the position of
telephone solicitor and found that it was within the work restrictions he provided. As an
impartial medical examiner, his report was thorough and thus represents the special weight of the
medical evidence.
Appellant offered no new evidence to establish the November 22, 2006 wage-earning
capacity decision was erroneous. She therefore did not establish that the November 22, 2006
wage-earning capacity decision should be modified
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation.14 Under section 8106(c)(2) of FECA, OWCP may terminate the compensation
of a partially disabled employee who refuses or neglects to work after suitable work is offered to,
procured by or secured for the employee.15 To justify termination, OWCP must show that the
work offered was suitable and must inform appellant of the consequences of refusal to accept
such employment.16 Section 8106(c) will be narrowly construed as it serves as a penalty

14

N.M., Docket No. 08-2081 (issued September 8, 2009); A.W., 59 ECAB 593 (2008); Kelly Y. Simpson, 57
ECAB 197 (2005).
15

5 U.S.C. § 8106(c)(2); see also L.C., Docket No. 08-1923 (issued May 13, 2009); M.M., 59 ECAB 680 (2008);
Mary E. Woodard, 57 ECAB 211 (2005); Geraldine Foster, 54 ECAB 435 (2003).
16

T.S., 59 ECAB 490 (2008); Bryan O. Crane, 56 ECAB 713 (2005); Ronald M. Jones, 52 ECAB 190 (2000).

6

provision, which may bar an employee’s entitlement to compensation based on a refusal to
accept a suitable offer of employment.17
Regulations implementing FECA provide that, if possible, the employer should offer
suitable reemployment in the location where the employee currently resides. If this is not
practical, the employer may offer suitable reemployment at the employee’s former duty station
or other location.18
ANALYSIS -- ISSUE 2
On March 5, 2008 the employing establishment offered appellant a sedentary position in
Northport, New York, which accommodated the work restrictions given by the impartial medical
examiner, Dr. Levine. OWCP reviewed the position and found it to be suitable for her. After
appellant refused the position on the grounds that it was not suitable or within her commuting
area, OWCP terminated her compensation for refusing suitable work.
To properly terminate compensation under section 8106(c), OWCP must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.19 By letter dated July 9, 2009, OWCP
advised her that the position was suitable and provided her 30 days to accept the position or
provide reasons for her refusal. OWCP further notified appellant that the position remained
open, that she would be paid for any difference in pay between the offered position and her dateof-injury job, that she could still accept without penalty and that a partially disabled employee
who refused suitable work was not entitled to compensation.
By July 23, 2009 letter, appellant’s counsel refused the position because the position was
not located near her current residence.
The Board notes that OWCP did not make an attempt to determine whether suitable
employment was possible or practical in or around Fountain Hill, Arizona, the location where
appellant, resided at the time of the job offer. By regulation, when an employee would need to
move to accept an offer of reemployment, the employing establishment should, if possible, offer
suitable reemployment in the location where the employee resided at the time of the job offer.
The record contains no evidence that the employing establishment made any effort to determine
whether such reemployment was possible in or around Fountain Hill, Arizona other than noting
that it contacted two locations and received no response. OWCP should have developed this
aspect of the case before finding the offer suitable. Its regulations state that the employer should
offer suitable reemployment where the employee currently resides, if possible.20 In this case,
17

E.M., Docket No. 09-39 (issued March 3, 2009); Karen M. Nolan, 57 ECAB 589 (2006); Richard P. Cortes, 56
ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).
18

20 C.F.R. § 10.508.
175 (2004).

See T.S., supra note 16; T.T., 58 ECAB 296 (2007); Sharon L. Dean, 56 ECAB

19

See T.T., supra note 18; Maggie L. Moore, 42 ECAB 484 (1991), reaff d on recon., 43 ECAB 818 (1992).

20

20 C.F.R. § 10.508. See T.S., supra note 16; T.T., supra note 18; Sharon L. Dean, supra note 18.

7

appellant would have needed to move from Fountain Hill, Arizona to accept the offered position
in Northport, New York. OWCP, therefore, should have developed the issue of whether suitable
reemployment was possible in the Fountain Hill, Arizona area. The Board finds that OWCP
erred in terminating appellant’s compensation benefits without positive evidence showing that
such an offer was not possible or practical.21
Under the circumstances of this case, OWCP did not properly find that appellant refused
suitable work.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that a
modification of the loss of wage-earning capacity determination was warranted. The Board
further finds that OWCP failed to meet its burden of proof to terminate appellant’s compensation
effective September 13, 2009 on the grounds that she refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2010 concerning modification of a loss of wageearning capacity is affirmed. OWCP’s decision dated November 29, 2009 regarding the
termination of compensation pursuant to section 8106(c) is reversed.
Issued: November 9, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

21

Id.

8