United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
G.T., Appellant
and
DEPARTMENT OF THE ARMY, DEFENSE
LANGUAGE INSTITUTE, Monterey, CA,
Employer
_________________________________________

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

Docket No. 15-1314
Issued: September 9, 2016

Case Submitted on the Record

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

JURISDICTION
On May 26, 2015 appellant filed a timely appeal from a March 24, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $39,608.74 for the period June 1, 2009 to October 18, 2014 because he concurrently
received FECA and Social Security Administration (SSA) benefits without an appropriate
retirement benefit offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether it properly found that the overpayment should be recovered by
deducting $300.00 from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 22, 2002 appellant, then a 55-year-old language instructor, injured his knees
at work. OWCP initially accepted left knee sprain and internal derangement of the left knee.
Later, the claim was expanded to include consequential aggravation of right knee arthritis.
Appellant stopped work on April 28, 2008. He received disability compensation on the
supplemental rolls beginning January 23, 2007 and on the periodic rolls effective June 8, 2008.
On June 23, 2008 appellant was provided a Form EN1049 which explained that appellant needed
to report any retirement income he received from any federal agency.
On May 5, 2009 OWCP further advised appellant that FECA requires that a claimant’s
continuing compensation benefits be reduced if he begins to receive SSA retirement benefits
based upon age and federal service. It noted that a failure to report receipt of such benefits to
OWCP could result in an overpayment of compensation. OWCP requested that appellant advise
it immediately upon being approved for or receiving SSA retirement benefits.
A December 23, 2009 letter from SSA reflected that appellant had applied for SSA
benefits and that he had requested benefits beginning June 2009. A January 8, 2010 letter from
SSA further advised that appellant had retired in June 2009 and noted his monthly SSA
retirement benefit. Appellant provided a copy of the January 8, 2010 SSA letter with a
Form EN1032 that he had completed on June 10, 2010, in which he answered OWCP’s questions
about his employment, dependents, and income over the previous 15 months. He responded
“no” to the question of whether he received benefits from SSA as part of an annuity for federal
service.2 Appellant subsequently submitted annual EN1032 forms. By signing the forms, he
certified that all the statements made in response to the questions on the form were true,
complete, and correct to the best of his knowledge and belief.
On July 1, 2014 OWCP requested that SSA provide information regarding appellant’s
SSA rate with FERS and without FERS. On July 30, 2014 SSA provided the requested
information.
Using this information, OWCP on October 15, 2014 performed a FERS offset calculation
which reflected a $39,608.74 overpayment of compensation for the period June 1, 2009 to
October 18, 2014 due to the failure to offset SSA benefits.3
2

Each form covered the 15-month period preceding the date appellant signed each form. In Form EN1032 signed
on July 22, 2011 appellant responded “yes,” to the question of whether he received benefits from SSA as part of an
annuity for federal service. In EN1032 forms signed on June 2012, June 15, 2013, and June 7, 2014 appellant
responded “no,” to the question of whether he received benefits from SSA as part of an annuity for federal service.
3

OWCP determined that there was FERS offset every 28 days of $534.00 from June 1 to November 30, 2009,
resulting in a $3,490.07 overpayment; a $534.00 offset every 28 days from December 1 to 31, 2009, resulting in a
$591.21 overpayment; a $550.43 offset every 28 days from January 1, 2010 to November 30, 2011, resulting in a
$13,741.11 overpayment; a $570.28 offset every 28 days from December 1, 2011 to November 30, 2012, resulting
in a $7,454.33 overpayment; a $580.06 offset from December 1, 2012 to November 30, 2013, resulting in a
$7,561.52 overpayment; and a $588.74 offset from December 1, 2013 to October 18, 2014, resulting in a $6,770.49
overpayment. It totaled these amounts to equal a $39,608.74 overpayment. The Board notes that the total amount
calculates to $39,608.73 rather than $39,608.74.

2

On November 3, 2014 OWCP made a preliminary determination that appellant was
overpaid in the amount of $39,608.74 because he received FECA benefits concurrently with SSA
retirement benefits from June 1, 2009 through October 18, 2014 without deduction of the FERS
offset. It made a preliminary determination that he was not at fault in the creation of the
overpayment. OWCP gave appellant the opportunity to respond to the determination, informed
him that he could request waiver of the overpayment, and advised him to submit an OWCP-20
with supporting financial documents. It advised that effective October 19, 2014 it would reduce
ongoing OWCP benefits by $588.74 every four weeks. In an accompanying November 3, 2014
memorandum, it set forth its overpayment calculation for the period at issue.
On November 20, 2014 appellant contended that the overpayment occurred through no
fault of his own and requested a waiver. He argued that he reported all his income and that many
years passed without OWCP saying anything. Appellant advised that he could not pay back the
overpayment because he and his wife were both disabled and had many expenses. He advised
that his total expenses included: $1,800.00 for rent; $400.00 for food; $200.00 for clothes;
$500.00 for bills; and $800.00 for other expenses. Appellant further advised that he had a total
of $1,822.37 in funds including: $20.00 in cash; $1,602.37 in his checking account; and $200.00
in personal property and other funds. He listed monthly income that included $725.00 SSA and
provided a benefit statement from OWCP noting a net payment of $2,655.18 from October 19 to
November 15, 2014 reflecting a net income of $3,380.18. Supporting his request, appellant
submitted a garbage services bill for $61.68, covering almost two months; a water bill for
$136.48 covering over two months; a $41.05 monthly electric and gas bill; an $11.81 monthly
telephone bill; a monthly bank statement listing a $2,985.89 balance; automobile insurance
documents listing annual premiums for four vehicles that totaled $2,802.00; and an October 30,
2014 receipt indicating that he paid $1,800.00 in rent.
By decision dated March 24, 2015, OWCP found that appellant received an overpayment
of compensation in the amount of $39,607.74. It determined that he was not at fault in the
creation of the overpayment. However, it further found that waiver of recovery was not
warranted. OWCP determined that appellant’s total monthly income was $3,380.18; including
$2,655.18 in FECA benefits and $725.00 in social security benefits. Based on the financial
documentation provided by appellant, it determined that his monthly expenses totaled $2,653.00
including: $1,800.00 for rent; $400.00 for food; $200.00 for clothing; $155.00 for utilities;
$86.00 for auto expenses; and $12.00 for telephone. OWCP advised that the $500.00 for bills
and $800.00 for other expenses reported by appellant were disallowed as he failed to provide
documentation. It determined that appellant had $727.18 in excess monthly expenses. OWCP
determined that he had failed to provide information to support a finding that the recovery would
defeat the purpose of FECA or would be against equity and good conscience. It directed
repayment by deducting $300.00 from appellant’s continuing compensation every 28 days
effective April 5, 2015.
On appeal appellant argues that having $300.00 deducted from his continuing
compensation would cause significant hardship. He updated his monthly expenses to include:
$500.00 for a home keeper and $100.00 for over-the-counter medications. Appellant noted that
his dentist recently informed him that he needed dental work which would incur expenses of
$5,000.00 out of pocket. He also indicates that he consulted with an attorney who advised that

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he required $10,000 00 to take his case. Appellant reiterates that he had been transparent to both
SSA and OWCP.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits that are attributable to federal service and that, if an employee receives SSA
benefits based on federal service, his or her compensation benefits shall be reduced by the
amount of SSA benefits attributable to his or her federal service.4
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.5 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.6
ANALYSIS -- ISSUE 1
The record establishes that appellant received wage-loss compensation under FECA and
benefits under SSA beginning June 1, 2009. The portion of the SSA benefits appellant received
as a federal employee as part of his FERS retirement package concurrently with the benefits he
received under FECA is a prohibited dual benefit.7 OWCP requested, and SSA provided,
information regarding appellant’s applicable SSA rates and their effective dates. Based on
information provided by SSA, it calculated a required offset of $39,608.74 for the period June 1,
2009 through October 18, 2014, which it properly declared an overpayment.

4

5 U.S.C. § 8116(d). See D.S., Docket No. 12-689 (issued October 10, 2012).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000(e)(2) (February 1995). OWCP does not require an election between FECA benefits and SSA
benefits except when they are attributable to the employee’s federal service. See R.C., Docket No. 09-2131 (issued
April 2, 2010).
6

FECA Bulletin No. 97-09 (issued February 3, 1997); E.C., Docket No. 14-1743 (issued December 4, 2014).

7

See P.G., Docket No. 13-589 (issued July 9, 2013).

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The Board has reviewed OWCP’s calculations of benefits appellant received for the
period June 1, 2009 through October 18, 2014 and finds that appellant received an overpayment
in the amount of $39,608.74.8
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.9 These statutory
requirements are found in section 8129(b) of FECA which states: “Adjustment or recovery [of
an overpayment] by the United States may not be made when incorrect payment has been made
to an individual who is without fault and when adjustment or recovery would defeat the purpose
of this subchapter or would be against equity and good conscience.”10 If OWCP finds a claimant
to be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determines that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.11 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.12 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.13

8

See supra note 3. The one cent error is harmless error. C.N., Docket No. 16-0134 (issued March 8, 2016).

9

See Robert Atchison, 41 ECAB 83, 87 (1989).

10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his or her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse
or dependent plus $960.00 for each additional dependent. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009); B.F., Docket No. 13-785 (issued
September 20, 2013).
12

Id. at § 10.437(a), (b).

13

Id. at § 10.437(b)(1).

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Section 10.438 of OWCP’s regulations provides:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”14
ANALYSIS -- ISSUE 2
The fact that appellant is without fault in creating the overpayment does not mean that
OWCP cannot collect the overpayment. Appellant is still required to repay the debt unless:
(1) recovery of the overpayment would defeat the purpose of FECA; or (2) recovery of the
overpayment would be against equity and good conscience. OWCP properly determined that
appellant failed to establish waiver of recovery of the $39,608.74 overpayment under the
relevant standards. Appellant did not provide sufficient financial information to establish that he
was entitled to waiver of recovery of the overpayment.
In determining that appellant was not entitled to a waiver of the recovery of the
overpayment, OWCP reviewed appellant’s income, expenses, and assets. In an OWCP-20 form
appellant alleged that his total monthly expenses totaled $3,700.00 including: $1,800.00 for rent,
$400.00 for food, $200.00 for clothes, $500.00 for bills, and $800.00 for other expenses. As
noted, appellant submitted some documentation of his expenses, but these documents do not
fully support the overall expenses claimed by appellant on his OWCP-20 form. OWCP properly
found that his monthly expenses listed as $500.00 for bills and $800.00 for other expenses were
not supported by documentation.15 Based on the financial documentation supplied by appellant,
it found that appellant had a household income of $3,380.18 and total monthly expenses of
$2,653.00. As the household income exceeded his listed expenses by $727.18, OWCP properly
determined that recovery of the overpayment was not against equity and good conscious. Its
procedures provide that an individual is deemed to need substantially all of his or her current
income to meet current ordinary and necessary living expenses if monthly income does not
exceed monthly expenses by more than $50.00,16 which is not the case here. Thus, appellant did
not submit sufficient financial information to establish that recovery of the overpayment would
defeat the purpose of FECA. Because appellant has not met the first prong of the two-prong test
14

Id. at § 10.438.

15

Appellant also provided documentation for automobile insurance for four cars. OWCP properly reduced this
amount as OWCP procedures provide that insurance expense is only allowed for up to two vehicles. See Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)(3)(a)
(June 2009).
16

See supra note 10.

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of whether recovery of the overpayment would defeat the purpose of FECA, it is unnecessary for
OWCP to consider the second prong of the test, i.e., whether appellant’s assets do not exceed the
allowable resource base.17
Further, there is no evidence in this case that appellant relinquished a valuable right or
changed position for the worse in reliance on the excess compensation she received. The Board
therefore finds that OWCP properly denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made by decreasing later
payments to which the individual is entitled.18
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the financial information appellant
submitted as well as the factors set forth in section 10.441. As appellant’s monthly household
income was $3,380.18 and his monthly household expenses were $2,653.00, OWCP did not
abuse its discretion in setting the rate of recovery as $300.00 from each of appellant’s continuing
compensation payments. The Board will affirm its decision with regard to rate of recovery.
On appeal appellant reiterated that recovery of the overpayment would cause significant
hardship, updated his monthly expenses, and noted that his dentist advised him that he required
dental work that would cost him $5,000.00. However, the Board lacks jurisdiction to review
new evidence for the first time on appeal.20 As explained, the Board finds that OWCP properly
denied waiver and properly set the rate of repayment.
CONCLUSION
The Board finds that OWCP properly found a $39,608.73 overpayment of compensation
for the period June 1, 2009 to October 18, 2014 as he received a prohibited dual benefit and for
which he was found without fault and the Board finds that OWCP properly denied waiver of
17

Desiderio Martinez, 55 ECAB 245 (2004).

18

Id. at § 10.436.

19

Id. at § 10.441(a).

20

See 20 C.F.R. § 501.2(c).

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recovery of the overpayment. The Board further finds that it properly required repayment of the
overpayment by deducting $300.00 every four weeks from appellant’s continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.21
Issued: September 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

21

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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

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

Docket No. 17-0520
Issued: April 23, 2018

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 January 9, 2017 appellant filed a timely appeal from a November 22, 2016 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the accepted March 17, 2016 employment incident.
FACTUAL HISTORY
On March 21, 2016 appellant, then a 39-year-old painter, filed a traumatic injury claim
(Form CA-1) alleging that on March 17, 2016 she injured her right wrist while in the performance

1

5 U.S.C. § 8101 et seq.

of duty. She noted that she was painting inside a tank and felt a pop in her right wrist. Appellant
did not stop work.
An authorization for examination and/or treatment, Form CA-16, was issued by the
employing establishment on March 21, 2016.
On March 21, 2016 a physician assistant indicated that appellant was seen in June 2015
and diagnosed with tenosynovitis, but never followed up with orthopedics. He noted the history
of the March 17, 2016 employment incident and diagnosed radial styloid tenosynovitis
(de Quervain’s) injury. Appellant was released to work with restrictions. The report was later
cosigned by Dr. Aatif M. Hayat, Board-certified in occupational medicine, on March 24, 2016.
In a March 29, 2016 report, Dr. Michael R. Wiedmer, a Board-certified orthopedic
surgeon, indicated that appellant felt a pop at the base of the thumb while working about two weeks
ago. Prior to that, her hand had been going numb and waking her up at night. An assessment of
right de Quervain’s tendinitis and right carpal tunnel syndrome was provided. Dr. Wiedmer
released appellant to light duty for three days. He opined, in a March 29, 2016 attending
physician’s report, by checking a box marked “yes” that the diagnosed right de Quervain’s
tendinitis and right carpal tunnel syndrome conditions were caused or aggravated by her
employment activity. Dr. Wiedmer released appellant to work with no restrictions on
May 20, 2016.
On May 10, 2016 Dr. Anthony J. Esposito, a Board-certified neurologist, indicated that the
nerve conduction studies revealed evidence of a moderate right carpal tunnel syndrome. He
released appellant to work without restrictions on May 11, 2016.
Forms CA-7 (claim for compensation) and CA-7a (time analysis form) for the intermittent
period May 10 to 20, 2016 were also submitted.
By development letter dated May 26, 2016, OWCP advised appellant that the evidence of
record was insufficient to support her claim. It indicated that a physician’s opinion supported by
a medical explanation as to how the reported work incident caused or aggravated the claimed injury
was needed. OWCP afforded appellant 30 days to submit the requested information.
In response, OWCP received: a duplicative copy of the May 10, 2016 electrodiagnostic
report; a June 9, 2016 Form CA-3 (report of work status); and clinic passes dated June 16 and
August 24, 2016 from the employing establishment which noted Dr. Wiedmer had released
appellant to light duty with no use of right hand. The provider who signed the June 16, 2016 clinic
pass is unknown, while the August 24, 2016 clinic pass was signed by a registered nurse.
In a May 20, 2016 note, Dr. Wiedmer noted that appellant had elbow pain and the
electromyogram (EMG) revealed significant carpal tunnel at the wrist. An assessment of right
carpal tunnel syndrome and lateral epicondylitis was provided. Dr. Wiedmer recommended right
carpal tunnel release and injection of the elbow. A May 31, 2016 request for authorization was
attached. Dr. Wiedmer released appellant to light duty in a note dated June 8, 2016.
By decision dated July 6, 2016, OWCP denied appellant’s claim for compensation. It
found that the incident occurred as alleged, but that appellant had not submitted medical evidence
2

establishing that the accepted employment incident of March 17, 2016 caused or aggravated her
diagnosed conditions of right carpal tunnel and right de Quervain’s tendinitis.
On July 12, 2016 OWCP received appellant’s July 11, 2016 request for an oral hearing
before an OWCP hearing representative.2 On August 29, 2016 it received appellant’s July 11,
2016 request for reconsideration.
In letters dated August 9 and 10, 2016, appellant advised that she was requesting
reconsideration. Multiple copies of her July 28, 2016 statement discussing her work injury were
submitted, along with copies her July 11, 2016 request for reconsideration.
By letter dated September 12, 2016, OWCP informed the employing establishment of
appellant’s reconsideration request. In response, a representative from the employing
establishment submitted a September 20, 2016 letter indicating that appellant’s physician had
indicated in an August 22, 2016 report that she was capable of working light duty with no use of
the right hand. A copy of Dr. Wiedmer’s August 22, 2016 note was attached, which indicated that
appellant was released to light duty with no use of the right hand.
By decision dated November 22, 2016, OWCP denied modification of its July 6, 2016
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component is whether the

2
On July 21, 2016 appellant requested authorization to see a Dr. Sauer. In an August 19, 2016 letter, OWCP
advised appellant that it was unable to authorize any treatment at this time and that she could follow her appeal rights
attached to the July 6, 2016 decision.
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

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employment incident caused a personal injury and generally can be established only by medical
evidence.6
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7
ANALYSIS
The Board finds that appellant has not submitted sufficient medical evidence to establish
that the March 17, 2016 accepted employment incident caused or aggravated her diagnosed
conditions.
In a March 21, 2016 report, later cosigned by Dr. Hayat, a physician assistant noted the
history of the March 17, 2016 employment incident and diagnosed radial styloid tenosynovitis
(de Quervain’s) injury. He released appellant to work with restrictions. However, Dr. Hayat
offered no opinion regarding the cause of appellant’s diagnosed condition and resultant disability.
Medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value.8
In a March 29, 2016 report, Dr. Wiedmer noted the history of the March 17, 2016
employment incident and that her hand had been going numb and waking her up at night before
the reported incident. He provided an assessment of right de Quervain’s tendinitis and right carpal
tunnel syndrome and released her to light duty for three days. Dr. Wiedmer opined, in a March 29,
2016 attending physician’s report, by checking a box marked “yes” that the diagnosed right
de Quervain’s tendinitis and right carpal tunnel syndrome conditions were caused or aggravated
by her employment activity. A report that addresses causal relationship with a check mark, without
medical rationale explaining how the employment incident caused or aggravated the alleged injury,
is of diminished probative value and insufficient to establish causal relationship.9 Dr. Wiedmer
failed to provide a rationalized opinion explaining the causal relationship between the diagnosed
conditions and the accepted employment incident.10

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

7

Solomon Polen, 51 ECAB 341 (2000).

8

M.M., Docket No. 16-1180 (issued October 26, 2016).

9

See R.U., Docket No. 17-0168 (issued January 9, 2018).

10

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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In a May 20, 2016 note, Dr. Wiedmer provided an assessment of right carpal tunnel
syndrome and lateral epicondylitis and recommended right carpal tunnel release and injection of
the elbow. In numerous notes, he also released appellant to light duty either with or without
restrictions. However, Dr. Wiedmer did not offer any medical opinion addressing whether the
diagnosed conditions or her disability were caused or aggravated by the accepted March 17, 2016
employment incident.11 Therefore, his reports are insufficient to meet appellant’s burden of proof.
On May 10, 2016 Dr. Esposito indicated that the nerve conduction studies revealed
evidence of a moderate right carpal tunnel syndrome. He released appellant to work with no
restrictions on May 11, 2016. However, Dr. Esposito offered no opinion regarding the cause of
appellant’s diagnosed condition and resultant disability. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value.12
The August 24, 2016 report from a registered nurse is of no probative medical value.
Registered nurses are not considered physicians as defined under FECA.13
The diagnostic testing of record is of diminished probative value and is insufficient to
establish appellant’s claim as it does not provide a physician’s explanation regarding the causal
relationship between appellant’s diagnosed conditions and the March 17, 2016 employment
incident.14
The Board notes that a Form CA-16, authorization for examination and/or treatment, was
issued by the employing establishment on March 21, 2016. When the employing establishment
properly executes a Form CA-16 which authorizes medical treatment as a result of an employee’s
claim for an employment-related injury, the Form CA-16 creates a contractual obligation, which
does not involve the employee directly, to pay for the cost of the examination or treatment
regardless of the action taken on the claim. The period for which treatment is authorized by a
Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.15
Therefore, the Board finds that the medical evidence of record is insufficient to establish
that appellant’s diagnosed conditions are causally related to the accepted March 17, 2016
employment incident.

11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
12

M.M., Docket No. 16-1180 (issued October 26, 2016).

13

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
E.B., Docket No. 17-1862 (issued January 12, 2018) (a nurse is not considered a physician under FECA); see also
G.A., Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse has no probative medical value
as a nurse is not a physician as defined under FECA).
14

See K.E., Docket No. 17-1216 (issued February 22, 2018); see also C.P., Docket No. 15-0600 (issued
June 2, 2015).
15

See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608, 610 (2003).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted March 17, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated November 22, 2016 is affirmed.
Issued: April 23, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Honolulu, HI, Employer
__________________________________________

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

Docket No. 07-1243
Issued: October 9, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed a timely appeal from Office of Workers’ Compensation
Programs’ decisions dated December 15, 2006 and March 7, 2007. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability as of May 24,
2006 due to her accepted left knee condition; and (2) whether the Office properly denied her
request for an oral hearing before an Office hearing representative.
FACTUAL HISTORY
On October 27, 2005 appellant, a 50-year-old letter carrier, injured her left knee while
squatting to pick up mail tubs in a truck. She filed a claim for benefits, which the Office
accepted for left knee strain, partial quadriceps tear, aggravation of degenerative left posterior
medical meniscus and aggravation of chondromalacia of the left knee. Appellant returned to

work for intermittent periods. On April 10, 2006 she returned to part-time light duty for four
hours per day, three times per week. Appellant stopped working on May 26, 2006.
On June 9, 2006 appellant filed a Form CA-7 claim for compensation for wage loss from
May 26 to June 9, 2006.
In a May 26, 2006 report, Dr. Darryl M. Kan, Board-certified in orthopedic surgery,
stated:
“[Appellant] returns after the functional capacity evaluation. I reviewed this in
detail. She is very limited with her lifting and carrying and even with sitting.
[Appellant] lifts 20 pounds infrequently versus her lifting 15 pounds occasionally,
carrying 15 pounds occasionally and sitting is frequent but her job requires
constant sitting.
“[Appellant] has had considerable weakness as well after not going to physical
therapy. She still has marked crepitus through the knee. [Appellant] has pain
over the superior pole.
“Based on [her] functional capacity evaluation with all the limitations present, it
is my opinion that [appellant] will not return to work in her present capacity and
my recommendation would be for medical retirement. Due to the restrictions
with even sitting I think that a modified position will be difficult for her [to]
negotiate.”
By letter to appellant dated June 14, 2006, the Office stated that it had received notice
that she was claiming a recurrence of disability. The Office asked appellant to submit medical
evidence indicating that a material change had occurred which prevented her from doing her
light-duty job.
In a work capacity evaluation dated July 17, 2006, Dr. Kan indicated that appellant could
work a six-hour day, with restrictions of frequent but not constant sitting, occasional walking and
standing, occasional lifting not exceeding 15 pounds, and no squatting, kneeling or climbing. In
a report dated July 24, 2006, he stated:
“[Appellant] underwent a functional capacity evaluation on May 16, 2006. In that
evaluation, the physical therapist, Lynette Masuda, opined that the patient could
perform sedentary physical demand level for an eight-hour day with back lift
capacity of 15 pounds; however, in the functional capacity evaluation results
Ms. Masuda noted [that appellant] could not do constant sitting which the job
required and was limited to frequent sitting. It does not appear that the patient
would be able to perform sedentary duty as outlined by Ms. Masuda as sedentary
duty would require constant sitting. Thus, it appears the patient is totally
disabled based on her current medical condition and functional capacity
evaluation results.” (Emphasis added.)

2

In order to determine appellant’s current condition, the Office referred appellant for a
second opinion examination with Dr. Robert S. Harvey, Board-certified in orthopedic surgery.
In a report dated September 22, 2006, Dr. Harvey noted that his August 31, 2006 examination
had demonstrated objective findings of palpable defect in the quadriceps tendon which were
supported by findings from a magnetic resonance imaging scan. Appellant also had objective
findings of chondromalacia of the patellar and arthritic changes in the joint. Dr. Harvey advised
that appellant’s diagnosed left knee conditions resulted in limited mobility of the knee, decreased
strength, pain with motions causing traction of the quadriceps mechanism, and restricted ability
to stand and sit. However, he disagreed with Dr. Kan’s opinion that appellant was totally
disabled. In a work restriction evaluation dated August 31, 2006, Dr. Harvey indicated that
appellant could work a six-hour day, with restrictions of sitting and standing not exceeding two
hours, lifting not exceeding 15 to 20 pounds, pushing and pulling not exceeding 40 pounds, and
no bending, squatting, kneeling or climbing. He also recommended that appellant take a 10minute break every hour, sit with her leg straight on occasion and make frequent position
changes.
By letter dated October 31, 2006, the Office asked Dr. Kan to comment on Dr. Harvey’s
September 22, 2006 second opinion report, which accompanied the letter. Dr. Kan did not
respond to this letter.
By decision dated December 15, 2006, the Office denied appellant’s claim for benefits
based on a recurrence of disability. The Office found that Dr. Harvey’s referral opinion
represented the weight of the medical evidence.
In a form request postmarked January 23, 2007, appellant requested an oral hearing.
By decision dated March 7, 2007, the Office denied appellant’s request for an oral
hearing. The Office stated that appellant’s request was postmarked July 14, 2006, which was
more than 30 days after the issuance of the Office’s March 30, 2006 decision, and that she was
therefore not entitled to a hearing as a matter of right. The Office nonetheless considered the
matter in relation to the issue involved and denied appellant’s request on the grounds that the
issue was factual and medical in nature and could be addressed through the reconsideration
process by submitting additional evidence.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements.1

1

Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

ANALYSIS
The Board finds that the case is not in posture for decision.
In the instant case, there is a conflict in the medical evidence. Dr. Kan opined in his
July 24, 2006 report that appellant was totally disabled based on her current medical condition
and the functional capacity evaluation results. He noted that the functional capacity evaluation
indicated she could not perform constant sitting required by her light-duty job, as she was
restricted from frequent sitting. In a September 22, 2006 referral report, Dr. Harvey stated that
appellant’s diagnosed left knee conditions resulted in limited mobility, decreased strength, pain
and restrictions on standing and sitting, but disagreed with Dr. Kan’s opinion that appellant was
totally disabled. When such conflicts in medical opinion arise, 5 U.S.C. § 8123(a) requires the
Office to appoint a third or “referee” physician, also known as an “impartial medical examiner.”2
Accordingly, the Board will set aside the Office’s December 15, 2006 decision and remand the
case to the Office for referral to an impartial medical specialist to resolve the conflict in medical
evidence regarding whether appellant sustained a recurrence of disability causally related to her
accepted left knee conditions as of May 26, 2006. After such development as it deems
necessary, the Office shall issue a de novo decision.
The Board finds that the Office’s decision must be set aside and remanded to resolve the
conflict in medical evidence.3
CONCLUSION
The Board finds that the case is not in posture for decision.

2

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part, “ [i]f there is a
disagreement between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.” See Dallas E. Mopps, 44
ECAB 454 (1993).
3

In light of the Board’s decision to remand the case to the Office to adjudicate the recurrence issue, the Board
need not consider the Office’s March 7, 2007 nonmerit decision.

4

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2007 and December 15, 2006
decisions of the Office of Workers’ Compensation Programs be set aside and the case remanded
to the Office for further action consistent with this decision.
Issued: October 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 10-1613
Issued: March 24, 2011

Case Submitted on the Record

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

JURISDICTION
On June 2, 2010 appellant timely appealed the April 28, 2010 merit decision of the Office
of Workers’ Compensation Programs, which denied her request for a schedule award. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over this decision.
ISSUE
The issue is whether appellant has a ratable permanent impairment of the right or left
upper extremity.
FACTUAL HISTORY
On November 22, 2002 appellant, a 47-year-old distribution clerk, filed an occupational
disease claim alleging that she sustained injuries to her upper extremities as a result of repetitive

1

5 U.S.C. § 8101 et seq.

employment activities.2 The Office accepted her claim for bilateral tendinitis of the wrists and
bilateral carpal tunnel syndrome. Appellant underwent right carpal tunnel release surgery on
February 11, 2004 and returned to full duty on September 2, 2004.
In a May 3, 2006 decision, the Office denied appellant’s request for a schedule award,
finding that she had no residual impairment under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment. It found that the date of
maximum medical improvement (MMI) was September 2, 2004, the date she returned to fulltime employment.
On February 2, 2007 appellant filed a separate occupational disease claim under File No.
xxxxxx304. The claim was accepted for bilateral carpal tunnel syndrome. Appellant stopped
work on August 14, 2007. The Office combined the File Nos. xxxxxx850 and xxxxxx304, with
File No. xxxxxx850 serving as the master file.3
On January 24, 2008 the Office authorized carpal tunnel release surgery. Appellant did
not undergo carpal tunnel release surgery due to the occurrence of a rash at the surgery site.
On February 19, 2008 Dr. Victor Romano, a Board-certified orthopedic surgeon, released
appellant to return to limited duty. She was restricted from performing any repetitive activities,
typing and lifting more than five pounds.
On December 12, 2008 appellant requested a schedule award.
Appellant was also treated for chronic lower back pain. On February 11, 2009 Dr. Alan
Wilson, a treating physician, opined that she was totally disabled and completely incapacitated
due to her lumbar condition as of July 19, 2007.
On February 24, 2009 Dr. Romano reported that appellant was experiencing persistent
pain and weakness in both hands due to her diagnosed carpal tunnel syndrome. He referred to a
February 5, 2009 functional capacity evaluation, which reflected her ability to lift no more than
10 pounds.
The Office referred appellant to Dr. David Trotter, a Board-certified orthopedic surgeon,
for a second opinion evaluation and an opinion as to whether she had any permanent impairment
due to her accepted upper extremity conditions.4 Dr. Trotter was instructed to provide a full
description of any permanent impairment, including any decrease in strength, atrophy of
muscles, changes in sensation. He was also asked to describe any subjective complaints of a
chronic nature, such as pain and weakness. Dr. Trotter was advised to provide range of motion

2

Appellant initially filed a claim for a recurrence of disability. The Office developed her claim as one for a new
occupational disease.
3

Appellant’s 1995 traumatic injury claim (File No. xxxxxx235) was accepted for spinal stenosis and sciatica.

4

On February 25, 2009 the Office informed appellant that she should provide an impairment rating from her
physician. On May 8, 2009 appellant informed the Office that Dr. Romano did not conduct impairment ratings.

2

measurements, expressed in degrees. Finally, all findings were to be correlated with the
provisions of the sixth edition of the A.M.A., Guides.
In an August 7, 2009 report, Dr. Trotter noted appellant’s reports of persistent symptoms
at both the right and left wrist and hands, with multiple fingers going numb and tingling. His
gross neurologic evaluation of both the upper and lower extremities revealed 5/5 motor power;
and completely intact subjective sensation has also been documented. Dr. Trotter found full
range of motion of the shoulders, elbows and wrists. Appellant had negative Phalen’s maneuver
of the wrists bilaterally, as well as no apparent tenderness or swelling. There was good color,
capillary refill and temperature of the digits of the upper extremities were noted with excellent
function of the median, ulnar and radial nerve innervated digits/dermatomes and the
corresponding motor power at the ulnar nerve in particular along the palmar side. The examinee
had no tenderness volarly or dorsally at the level of the flexor or extensor tendons and negative
Finkelstein’s maneuver bilaterally at the wrist along with no tenderness at the first dorsal
compartment.
Dr. Trotter’s review of the medical records included reference to an April 25, 2007
electromyogram (EMG), “which was read as negative ...” and a February 5, 2009 functional
capacity evaluation. He noted that appellant returned to full duty on September 2, 2004
following carpal tunnel release surgery, with no evidence of complications and minimal residual
complaints. Dr. Trotter reviewed October 9, 2008 records from Trinity Orthopedics and
February 11, 2009 records from Dr. Wilson regarding appellant’s lumbar condition.
Dr. Trotter opined that appellant had no permanent impairment to her bilateral upper
extremities due to her accepted November 10, 2002 injury. He stated that her intermittent mild
and highly subjective complaints of numbness, tingling, and/or pain appeared to be
disproportionate to the unremarkable examination findings and were consistent with symptom
magnification. Dr. Trotter found no evidence of any significant motion deficit. Appellant had
approximately 40 degrees of flexion/extension of both wrists, 10 degrees of ulnar and radial
deviation and 85 degrees of supination/pronation at the wrists and no evidence of any deficit of
any motion in the fingers and hands bilaterally. Dr. Trotter assigned a Grade Modifier 0 under
Table 15-23 on page 449 of the sixth edition of the A.M.A., Guides, entrapment/compression
neuropathy impairment. Based on appellant’s sensory/subjective complaints and unremarkable
examination findings and postoperatively normal electrodiagnostics, he concluded that appellant
had zero percent upper extremity impairment. Dr. Trotter opined that appellant reached MMI as
early as September 2, 2004, the date of her release to full duty. He stated: “Subsequent to that
date there has been no reasonable and/or credible documentation that would support that this
individual has sustained any recurrent or residual bilateral carpal tunnel syndrome.”
In a report dated October 19, 2009, the district medical adviser (DMA) determined that
appellant had no ratable impairment of either upper extremity due to wrist tendinitis and carpal
tunnel syndrome. He based his determination on Dr. Trotter’s August 7, 2009 report, which
reflected full strength in both upper and lower extremities; completely intact sensation; full ROM
of the shoulders, elbows, and wrists; negative Finklestein’s test bilaterally; and no tenderness
along the first dorsal compartment. The DMA noted a reference to “an EMG which apparently
was read as ‘negative.’” Noting the “highly subjective complaints which are disproportionate to
the completely normal physical examination as well as electrical studies,” the he indicated that

3

there was no objective basis for a schedule award. The DMA opined that the date of MMI
remained September 2, 2004, when appellant was released back to work full duty.
By decision dated November 10, 2009, the Office denied appellant’s request for a
schedule award. On November 10, 2009 appellant requested a telephonic hearing, which was
conducted on February 17, 2010. She testified that she experienced significant pain due to her
accepted carpal tunnel syndrome. Appellant stated that she had been unable to attend an
appointment with her physician for another impairment rating due to her inability to drive.
By decision dated April 28, 2010, an Office hearing representative affirmed the Office’s
November 10, 2009 decision, finding that the weight of the medical evidence was represented by
Dr. Trotter’s August 7, 2009 report.
LEGAL PRECEDENT
Section 8107 of the Act sets forth the number of weeks of compensation to be paid for
the permanent loss of use of specified members, functions and organs of the body.5 The Act,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.6 Effective May 1, 2009, schedule awards are determined in
accordance with the A.M.A., Guides (6th ed. 2008).7
ANALYSIS
The Board finds that this case is not in posture for a decision as to whether appellant has
a ratable permanent impairment of the right or left upper extremity.
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Entrapment neuropathy, such as carpal tunnel syndrome, is addressed at
section 15-4f.8 Having established the diagnosis of carpal tunnel syndrome, the next step in the
rating process is to consult Table 15-23, entitled Entrapment/Compression Neuropathy
Impairment.9 The table provides a series of grade modifiers from zero to four and a range of
corresponding upper extremity impairments from zero to nine percent. Grade modifiers are

5

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1)
(2006).
6

20 C.F.R. § 10.404 (2009).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
8

A.M.A., Guides 432.

9

Id. at 448-49.

4

assigned based on a combination of factors including test findings, history and physical
findings.10
Citing Table 15-23, Dr. Trotter indicated that he had assigned appellant a Grade 0
modifier. Based on appellant’s sensory/subjective complaints and unremarkable examination
findings and postoperatively normal electrodiagnostics, he concluded that appellant had zero
percent upper extremity impairment. Dr. Trotter did not adequately explain, however, how he
arrived at a Grade 0 modifier. The Board notes that, according to Table 15-23, a Grade 0
modifier is appropriate in the presence of normal test findings and where the patient is
asymptomatic. Where the patient’s history includes mild intermittent symptoms, a Grade 1
modifier is appropriate. Dr. Trotter noted that appellant’s complaints were highly subjective.
The Board notes, however, that complaints of pain and weakness are necessarily subjective.
Moreover, the medical history reflects repeated complaints of pain, which would qualify as a
Grade Modifier 1. Dr. Trotter did not address reports from appellant’s treating physician,
Dr. Romano, which documented her complaints of pain and weakness. Further, his findings of
“normal electrodiagnostics,” were based on an April 25, 2007 EMG report, which predated the
Office’s acceptance of appellant’s second occupational disease claim (File No. xxxxxx304) on
August 14, 2007 and the Office’s authorization for carpal tunnel release surgery on
January 24, 2008.11 Therefore, Dr. Trotter’s reliance on the April 25, 2007 test results was
inappropriate. The Board finds that his explanation as to how he arrived at a Grade Modifier 0 is
inadequate.
Finally, Dr. Trotter opined that appellant reached MMI as early as September 2, 2004, the
date of her release to full duty, stating that subsequent to that date there had been no reasonable
and/or credible documentation that would support any recurrent or residual bilateral carpal tunnel
syndrome. He failed to address appellant’s 2007 occupational disease claim, which was also
accepted for carpal tunnel syndrome, and the Office’s authorization for carpal tunnel release
surgery on January 28, 2008, nor did he explain why the February 24, 2009 report from
Dr. Romano and the February 5, 2009 functional capacity evaluation, both of which supported
appellant’s continuing carpal tunnel syndrome symptoms, were not credible. The determination
of whether MMI has been reached is based on the probative medical evidence of record and is
usually considered to be the date of the evaluation by the attending physician which is accepted
as definitive by the Office.12 The Board, therefore, requires persuasive evidence of MMI for
selection of a retroactive date of MMI.13 The opinion of Dr. Trotter dated August 7, 2009
identifies a date of MMI, September 2, 2004 and an inference concerning an event five years
earlier requires significant, well-rationalized support. In this case, neither Dr. Trotter nor the
Office medical adviser provided the persuasive proof necessary to support a retroactive date of
MMI.
10

Id.

11

It is on the date of examination that a physician has the best opportunity to examine the patient. Where there is
significant medical evidence in the record to support an earlier date of MMI, the physician should identify that
evidence and explain its significance to his or her opinion that an earlier date is appropriate.
12

Mark A. Holloway, 55 ECAB 321 (2004).

13

Id.

5

Without adequate explanation, the medical adviser agreed with Dr. Trotter’s opinion on
the absence of a ratable impairment and the date of MMI. As he failed to provide rationale for
his opinion or to properly address the provisions of the A.M.A., Guides, his report is also
deficient. Accordingly, the Board finds that the case is not in posture for decision. The matter
will be remanded to the Office for further development. After such development as it deems
necessary, the Office will issue an appropriate decision regarding appellant’s entitlement to
schedule award compensation.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant has a
ratable permanent impairment of either upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the April 28, 2010 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action
consistent with this decision.
Issued: March 24, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY,
Mare Island, CA, Employer
__________________________________________

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

Docket No. 10-1512
Issued: March 24, 2011

Case Submitted on the Record

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

JURISDICTION
On May 13, 2010 appellant filed a timely appeal from the January 21, 2010 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award in this case.
ISSUE
The issue is whether appellant has more than a two percent monaural hearing loss of the
right ear for which he received a schedule award.
FACTUAL HISTORY
On August 9, 1985 appellant, then a 43-year-old pipefitter, filed a claim alleging that he
sustained permanent hearing loss while in the performance of duty. He became aware of his
hearing loss and realized it was related to his employment in 1973. Appellant retired on
March 31, 1996.
On December 24, 1985 the Office referred appellant to Dr. Sheldon S. Kabaker, a Boardcertified otolaryngologist, for an otologic examination and an audiological evaluation. In an

April 3, 1986 report, Dr. Kabaker examined appellant and reviewed his exposure to noise
generated from heavy construction while working as a pipefitter, inspector and progressman.
Appellant reported using earplugs for hearing protection. Dr. Kabaker diagnosed bilateral
sensorineural hearing loss that was due to workplace noise exposure. He advised that appellant
would not benefit from amplification. On May 6, 1986 an Office medical adviser reviewed
Dr. Kabaker’s report and the audiometric test of March 24, 1986. He concluded that appellant’s
hearing loss was not severe enough to be ratable for a schedule award. On May 27, 1986 the
Office accepted appellant’s claim for bilateral sensorineural hearing loss due to noise exposure.
It found that, although appellant’s hearing loss was employment related, it was not ratable for
purposes of a schedule award.
On July 22, 2007 appellant filed a claim for a schedule award. He submitted an
August 29, 2007 audiogram from Christina Barboa, an audiologist, which revealed slight to
severe sensorineural hearing loss bilaterally, worse in the right ear. Ms. Barboa recommended
amplification binaurally. In an attending physician’s report, she diagnosed noise-induced
hearing loss and noted with a checkmark “yes” that the condition was caused or aggravated by an
employment activity. Ms. Barboa recommended bilateral hearing aids.
A July 9, 2008 statement of accepted facts noted that from 1961 to 1973 appellant
worked as a marine pipefitter helper, marine pipefitter, piping and mechanical inspector, nuclear
radiology technician and marine pipefitter supervisor at Hunters Point Naval Shipyard. From
1973 to 1990 he worked as a nuclear marine pipefitter, piping planner estimator, contractor
inspector, nuclear piping inspector, marine progressman and marine pipefitter supervisor at Mare
Island Shipyard. From 1990 to 1996 appellant worked for the Navy Public Works as a public
works planner and environmental planner. It is accepted that he was exposed to occupational
noise levels above 85 decibels.
On July 10, 2008 the Office referred appellant to Dr. David Keiner, a Board-certified
otolaryngologist, for an otologic examination and an audiological evaluation. In an August 6,
2008 report, Dr. Keiner noted examining appellant and reviewed his exposure to noise from
machinery while working as a pipefitter. Appellant reported using earplugs in the 1970’s and
retiring in 1996. He reported some occasionally high-pitched tinnitus. Dr. Keiner diagnosed
bilateral neurosensory hearing loss, mild to severe in the right ear and mild to moderate in the
left ear. He noted tympanic membranes were normal, no evidence of perforation, middle ear
effusion or infection and nasal examination showed a clear airway, normal mucosa and the
pharynx and neck were normal. Dr. Keiner performed an otologic evaluation of appellant on
July 29, 2008 and audiometric testing was conducted on his behalf. Testing at the frequency
levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the following: right ear 15, 25,
30 and 80 decibels; left ear 15, 25, 40 and 70 decibels. Dr. Keiner opined that appellant’s
hearing loss was related to his noise exposure at work as he had normal hearing at the time of
employment in 1961. He stated that it was unlikely that any significant additional hearing loss
occurred after appellant stopped work in 1996 and that any additional hearing loss from 1996 to
the present was due to natural aging. Dr. Keiner recommended hearing aids.
On September 25, 2008 an Office medical consultant, Dr. Brian E. Schindler, a Boardcertified otolaryngologist, reviewed the medical record. He noted that appellant was exposed to
hazardous noise while working at the employing establishment from 1961 to 1996 as a marine

2

pipefitter, inspector and planner. Dr. Schindler did not find a summary of noise exposures and
the earliest enclosed audiograms were from 2007 which showed bilateral high frequency hearing
loss at that time. He requested all prior audiograms so he could evaluate appellant’s hearing loss
at the time he retired in 1996. The employing establishment subsequently provided audiograms
dated March 7, 1961 to February 20, 1996.
On February 6, 2009 Dr. Schindler reviewed the medical record and found that
appellant’s bilateral high frequency neurosensory hearing loss was consistent with his history of
noise exposure. The earliest audiogram of record was dated March 7, 1961 which showed a
bilateral high frequency hearing loss at that time and subsequent audiograms showed
deterioration in the hearing level over the years. For schedule award purposes, Dr. Schindler
used the audiogram of February 20, 1996 which showed bilateral high frequency hearing loss.
This February 20, 1996 audiogram was obtained within a year of the time that appellant retired
and represented an accurate reflection of his hearing loss at the time he retired. Dr. Schindler
used this audiogram to calculate hearing loss caused by exposure to federal noise exposure, as
such noise exposure ceased after appellant retired in 1996. The February 20, 1996 audiogram
revealed testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second which
revealed the following: right ear 10, 10, 10 and 75 decibels; left ear 10, 15, 10 and 60 decibels.
The medical consultant noted his calculations in a February 4, 2009 worksheet in which he
concluded that, in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides), appellant had a 1.9
percent (rounded up to two percent) monaural hearing loss in the right ear and a zero percent
monaural hearing loss in the left ear. He recommended a hearing aid for the right ear.
In a decision dated March 9, 2009, the Office granted appellant a schedule award for a
two percent monaural hearing loss for the right ear. The period of the award was from March 31
to April 7, 1996.
On July 9, 2009 appellant requested reconsideration. He also requested bilateral hearing
aids as recommended by Dr. Barboa and Dr. Keiner.
In an October 13, 2009 decision, the Office denied modification of the March 9, 2009
schedule award.
On October 13, 2009 appellant requested reconsideration. He submitted a September 18,
2009 audiogram from Loveleen Sandhu, an audiologist, who noted that audiological testing
revealed hearing within normal limits at 250 to 2,000 cycles per second and precipitously sloping
to severe and moderately severe, high frequency, sensorineural hearing loss bilaterally.
Ms. Sandhu noted that compared to the 2007 audiogram, the left ear thresholds had dropped
significantly and now showed symmetrical loss to the right ear thresholds. Bone conduction
testing shows this to be permanent, sensorineural hearing loss in both ears. Ms. Sandhu
recommended amplification to both ears considering appellant’s progressive loss.
On November 4, 2009 Dr. Schindler noted that appellant retired in 1996. He again stated
that the audiogram of February 20, 1996 was closest in time to when appellant retired and
revealed a ratable hearing loss of two percent. On the basis of the audiogram, Dr. Schindler
recommended a hearing aid for the right ear. As to whether a hearing aid for the left ear was

3

related to the 1985 work-related injury, he noted that appellant had deterioration of hearing in
both ears due to aging. At the time of his retirement, appellant’s left ear hearing loss was not
sufficient to recommend a hearing aid.
In a decision dated January 21, 2010, the Office denied modification of the October 13,
2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second,
the losses at each frequency are added up and averaged.5 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.6 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.8 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.9

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

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

4

A.M.A., Guides 250 (6th ed. 2008).

5

Id.

6

Id.

7

Id.

8

Id.

9

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

4

ANALYSIS
In rating the extent of noise-induced hearing loss due to occupational exposure,
Dr. Schindler reviewed an audiogram dated February 20, 1996 obtained by the employing
establishment prior to appellant’s retirement on March 30, 1996. He advised that of the
audiograms of record, it was the best representation of the extent of loss due to appellant’s noise
exposure in his federal employment.
While noise-induced hearing loss may not typically progress after exposure to noise
ceases, an Office medical adviser or consultant will provide a well-rationalized opinion for
selecting one audiogram over another.10 The Board finds that Dr. Schindler provided rationale
for selecting the February 20, 1996 audiogram over other available audiograms.
Dr. Schindler selected the audiogram of February 20, 1996 to determine appellant’s
employment-related hearing loss because it was the most complete audiogram that was
contemporaneous with appellant’s retirement on March 31, 1996. He noted that the February 20,
1996 audiogram was obtained at the time appellant retired and was an accurate reflection of his
employment-related hearing loss. The medical consultant explained that he used this audiogram
to calculate the percent of hearing loss caused by exposure to workplace noise exposure, as
appellant’s noise exposure ceased after he retired. He explained that appellant’s hearing loss
since retirement was not the result of noise exposure in his federal employment. The Board finds
that Dr. Schindler provided sound medical reasoning for selecting the February 20, 1996
audiogram as representing appellant’s employment-related hearing loss. It was a complete
audiogram performed about a month prior to retirement. Dr. Schindler noted that the earliest
audiogram in the record was dated March 7, 1961 which showed a bilateral high frequency
hearing loss at that time and that the subsequent audiograms showed deterioration in appellant’s
hearing over the years. He addressed the reliability of the February 20, 1996 audiogram noting
that it was a complete audiogram, that it included pure tone air and bone conduction scores and
speech testing and that it was performed on a calibrated machine.11
An Office medical consultant applied the Office’s standardized procedures to the
February 20, 1996 audiogram performed for the employing establishment. Testing for the right
ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibels
losses of 10, 10, 10 and 75 respectively. These decibels were totaled at 105 and were divided by
4 to obtain an average hearing loss at those cycles of 26.25 decibels. The average of 26.25
decibels was then reduced by 25 decibels (the first 25 decibels were discounted as discussed
above) to equal 1.25, which was multiplied by the established factor of 1.5 to compute a 1.9

10

See John C. Messick, 25 ECAB 333 (1974) (holding that when several audiograms are in the case record and all
are made within approximately two years of one another and are submitted by more than one physician, the Office
should give an explanation for selecting one audiogram over the others).
11

See Marco A. Padilla, 51 ECAB 202 (1999) (where the Office medical adviser provided sufficient rationale for
selecting an audiogram on the grounds that it was more representative of appellant’s employment-related hearing
loss than were those submitted prior to retirement and those that were incomplete and undated).

5

percent monaural loss of hearing for the right ear. This was rounded to two percent.12 Testing
for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed
decibels losses of 10, 15, 10 and 60 respectively. These decibels were totaled at 95 and were
divided by 4 to obtain the average hearing loss at those cycles of 23.75 decibels. The average of
23.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as
discussed above) to equal zero, which was multiplied by the established factor of 1.5 to compute
a zero percent monaural hearing loss for the left ear.
The Board finds that the weight of medical opinion establishes two percent loss of
hearing in appellant’s right ear based on the reports of Dr. Schindler.
Appellant asserted that the extent of his hearing loss was greater and that he be granted
two hearing aids. He submitted records from audiologists. The Board has held that reports by an
audiologist, not certified by a physician, cannot be considered as probative medical evidence.13
The audiograms submitted by appellant dated August 29, 2007 and September 18, 2009 are of no
probative value as they were not certified by a physician as accurate.14
As noted above, Dr. Schindler selected the audiogram of February 20, 1996 to determine
appellant’s employment-related hearing loss as to hearing aids, Dr. Schindler again relied on the
February 20, 1996 audiogram. He explained that appellant’s hearing loss since retirement was
not the result of noise exposure in federal employment. Dr. Schindler recommended a hearing
aid for the right ear and noted that appellant had continued deterioration in the hearing in both
ears due to aging. He opined that the hearing loss in appellant’s left ear at the time of his
retirement was not sufficient to recommend a hearing aid. Dr. Keiner, while recommending
hearing aids, did not provide any explanation as to why the left ear hearing aid would be needed
due to workplace noise exposure.
CONCLUSION
The Board finds that the Office properly determined that appellant sustained a two
percent monaural hearing loss.

12

The policy of the Office is to round the calculated percentage of impairment to the nearest whole number. J.P.,
Docket No. 08-832 (issued November 13, 2008).
13

Medical opinion, in general, can only be given by a qualified physician. E.K., Docket No. 09-1827 (issued
April 21, 2010). See 5 U.S.C. § 8101(2) (defines the term physician).
14

See Joshua A. Holmes, 42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist, it must be
certified by a physician as being accurate before it can be used to determine the percentage of hearing loss). See
also James A. England, 47 ECAB 115, 118 (1995) (finding that an audiogram not certified by a physician as being
accurate has no probative value; the Office need not review uncertified audiograms).

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, WEST TRENTON
POST OFFICE, Ewing, NJ, Employer
__________________________________________

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

Docket No. 06-1953
Issued: August 13, 2007

Case Submitted on the Record

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

JURISDICTION
On August 22, 2006 appellant filed a timely appeal from the June 5, 2006 merit decision
of the Office of Workers’ Compensation Programs terminating his compensation on the grounds
that he refused an offer of suitable work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
on the grounds that he refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On December 6, 2001 appellant, then a 57-year-old custodian (labor/maintenance), filed
an occupational disease claim alleging that he sustained pain in his left side, back and shoulders
as a result of the stress placed on his body during his federal employment. The Office accepted
the claim for aggravation of a degenerative cervical intervertebaral disc, aggravation of traumatic
arthroplasty of the lower left leg and aggravation of sprains/strains of hip and thigh. An

arthroplasty was interpreted as showing gross and microscopic changes consistent with
degenerative joint disease. Appellant moved to Florida in November 2003. He continued to
receive compensation benefits.
Appellant commenced treatment with Dr. Julio Robla, a Board-certified orthopedic
surgeon, on December 1, 2003. In a report dated February 10, 2004, Dr. Robla listed his
impression as “[l]eft total knee arthroplasty improving clinically with good range of motion and
improved functional outcomes.” On the same date, he indicated that appellant could do no
prolonged squatting or kneeling and could not lift or carry greater than 20 pounds.
On September 28, 2004 the Office referred appellant to Dr. Jerry S. Sher, a Boardcertified orthopedic surgeon, for a second opinion. In a report dated August 21, 2004, Dr. Sher
diagnosed appellant with osteoarthritis of the left knee, status post total knee replacement,
osteoarthritis of the left hip, mild and lumbar degenerative disc disease. He opined that the
work-related aggravation had resolved and that there were no objective findings to show that
appellant’s current degenerative condition continued to be related to the accepted work factors of
November 2001. Dr. Sher explained:
“[Appellant’s] occupational injury resulted in a temporary aggravation of his
preexisting degenerative conditions with regard to his hip and back. This
temporary aggravation would have ceased three months after the date of his
injury. [Appellant’s] knee reflects a permanent aggravation which required more
aggressive treatment and ultimately total knee replacement.”
He noted that appellant was capable of performing work in a modified capacity. Dr. Sher
advised that appellant was limited to squatting, kneeling and climbing for two to three hours a
day. He also noted that squatting was limited to 10 pounds and climbing of no more than 5
pounds. The Office found a conflict in medical opinion between Dr. Robla and Dr. Sher as to
whether appellant had any continuing residuals of his accepted conditions and his capacity for
work.
On November 8, 2004 the Office referred appellant to Dr. Sile Randolf Lestrange, a
Board-certified orthopedic surgeon, selected as the impartial medical specialist. In a report dated
December 7, 2004, Dr. Lestrange stated:
“[Appellant] is probably able to work as a custodian, but has some other
limitations as far as standing for long periods, climbing and squatting. He
expressed the desire to work as a security guard, for example, on a Brink’s Truck
and he understands that this would require some walking and sitting and some
climbing. [Appellant] apparently feels that he would be able to do this. He is not
working at the present time. Because of his age, physical habitus and
radiographic findings exclusive of any MRI [magnetic resonance imaging] [scan]
findings which may change the following opinion, [appellant] is probably able to
do light lifting, but unable to do repetitive heavy lifting at this time. [Appellant]
could probably work light duty and certainly part time and probably full time.

2

On January 25, 2005 Dr. Lestrange noted that appellant’s MRI scan showed bulging discs
at multiple levels, particularly at L5-S1 and L4-5, but no definite herniated discs. On
February 22, 2005 he noted that appellant’s MRI scan of his left hip was normal.
On April 22, 2005 the Office received a letter from the branch of the employing
establishment in south Florida stating that it was unable to identify a modified-job assignment
within appellant’s physical restrictions.
On May 9, 2005 the employing establishment offered appellant a position as a modified
custodian laborer in West Trenton, New Jersey, the branch where he was injured. The physical
requirements of the position included intermittent walking and standing (up to four hours),
bending/stooping, kneeling and climbing (up to two hours) and pushing, pulling and lifting six
hours a day up to 20 pounds.
By letter dated May 23, 2005, the Office informed appellant that the position offered by
the employing establishment as a modified custodian in Trenton, New Jersey was considered
suitable and that he had 30 days to either accept the position or provide reasons for refusing it.
On June 1, 2004 appellant retired from the Federal Government. On June 10, 2005 he rejected
the modified assignment. Appellant explained that he now lived in Florida had a home there and
had gone to college to get his license as a security officer.
By letter dated June 16, 2005, the Office informed appellant that his relocation and
attending college were not acceptable reasons for refusing suitable work. Appellant was advised
that, if he elected not to accept the job offer, he would not be entitled to any further
compensation, including a schedule award. The letter did note that he would still be entitled to
medical benefits.
Appellant commenced employment with State Security Service on May 20, 2005 earning
$8.39 per hour. He worked 80 hours biweekly.
On June 29, 2005 the Office informed appellant that he had not provided a valid excuse
for refusing to accept the offered position and provided him 15 extra days to accept the position.
The Office noted that the job offer included relocation expenses.
In a July 18, 2005 decision, the Office terminated appellant’s compensation benefits
because he refused suitable employment. It noted that the security guard position paid less than
appellant could earn in the position offered by the employing establishment.
On July 9, 2005 appellant requested an oral hearing before an Office hearing
representative.
At a hearing held on April 26, 2006, appellant testified that he went to school at Miami
Dade College to become a licensed security officer. He noted that he understood that, when he
went back to work, he would no longer receive compensation benefits but that he did expect to
receive his schedule award.
In a decision dated June 5, 2006, the hearing representative affirmed the Office’s July 18,
2005 decision.
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LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work or refuses or neglects to work after suitable
work is offered to, procured by or secured for him is not entitled to compensation.1 The Board
has found that a refusal to accept suitable work constitutes a bar to the receipt of a schedule
award for any impairment which may be related to the accepted injury.2 The Office has the
authority under this section to terminate compensation for any partially disabled employee who
refuses or neglects suitable work when it is offered. Before compensation can be terminated,
however, the Office has the burden of demonstrating that the employee can work, setting forth
the specific restrictions, if any, on the employee’s ability to work and has the burden of
establishing that a position has been offered within the employee’s work restrictions, setting
forth the specific job requirements of the position.3 In other words, to justify termination of
compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.4
An employee who refuses or neglects to work after suitable work has been offered to him has the
burden of showing that such refusal to work was justified.5
The implementing regulation provides that an employee, who refuses or neglects to work
after suitable work has been offered or secured for the employee has the burden of showing that
such refusal or failure to work as reasonable or justified and shall be provided with the
opportunity to make such a showing before entitlement to compensation is terminated.6 To
justify termination, the Office must show that the work offered was suitable and that appellant
was informed of the consequences of his refusal to accept such employment.7
The issue of whether an employee has the physical ability to perform a modified position
offered by the employing establishment is primarily a medical question that must be resolved by
medical evidence.8 In assessing medical evidence, the number of physicians supporting one
position or another is not controlling, the weight of such evidence is determined by its reliability,
its probative value and its convincing quality. The factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
1

5 U.S.C. § 8106(c)(2).

2

See Stephen R. Lubin, 43 ECAB 564, 573 (1992).

3

Frank J. Sell, Jr., 34 ECAB 547 (1983).

4

Glen L. Sinclair, 36 ECAB 664 (1985).

5

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

6

20 C.F.R. § 10.517(a) (1999); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(a)(5) (July 1997).
7

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

8

See Marilyn D. Polk, 44 ECAB 673 (1993).

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care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.9
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background, must be given special weight.10
ANALYSIS
To terminate appellant’s compensation benefits due to refusal to accept suitable work, the
Office has the burden of establishing that the offered position was suitable and that appellant was
informed of the consequences of failing to accept this work. The position offered was that of
modified custodian. The physical requirements were intermittent walking and standing; no more
than two hours of bending/stooping, kneeling and climbing; and pushing, pulling and lifting
limited to six hours a day and no more than 20 pounds. The impartial medical examiner,
Dr. Lestrange, who was selected to resolve a conflict in medical opinion between appellant’s
attending physician, Dr. Robla, and the second opinion specialist, Dr. Sher, regarding appellant’s
wage-earning capacity, indicated that appellant could “probably work as a custodian with
limitations as far as standing for long periods, climbing and squatting.” He indicated that
appellant was “probably able to do some light lifting” and could “probably work light duty” on a
part-time and full-time basis.
The Board finds that Dr. Lestrange’s report is not well rationalized as to appellant’s
capacity for work. His reports do not form a valid basis for the work suitability determination.
Dr. Lestrange consistently used the term “probably” to describe appellant’s ability to perform the
work of a modified-duty custodian, concluding that he “probably” could do light work. The
Board has held that medical opinion evidence which is couched in speculative language is of
diminished probative value.11 The Board, therefore, finds that the Office improperly relied on
Dr. Lestrange’s report because of its speculative nature.
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits based on his refusal to accept suitable work due to an unresolved conflict
in the medical evidence. Accordingly, the Board will reverse the Office’s June 5, 2006 decision.
CONCLUSION
The Board finds that the opinion of Dr. Lestrange was too speculative to constitute the
special weight of the medical evidence. Therefore, there remains an unresolved conflict of
medical opinion evidence preventing the Office from meeting its burden of proof to terminate
appellant’s compensation benefits.

9

See Connie Johns, 44 ECAB 560 (1993).

10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

11

Kathy A. Kelley, 55 ECAB 206, 211 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 5, 2006 is reversed.
Issued: August 13, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MARTINSBURG VETERANS MEDICAL
CENTER, Martinsburg, WV, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-1658
Issued: April 21, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 1, 2010 appellant filed an application for review of a May 14, 2010 decision of
the Office of Workers’ Compensation Programs, claim number xxxxxx415, which denied
modification of a February 25, 2010 decision finding that appellant did not sustain a workrelated lumbar injury. The appeal was docketed as number 10-1658. The May 14, 2010 decision
referenced another back injury claim filed by appellant, claim number xxxxxx866, which is not
before the Board.1 On appeal, appellant asked that claims for work-related back injuries be
consolidated as both cases pertain to the same condition.
In the May 14, 2010 decision, the Office noted reviewing the other claim file and quoted
from the March 4, 2009 decision, in claim number xxxxxx866, regarding certain findings. The
Office indicated that in the present claim appellant asserted that he was “informed by his
employing agency that he needed to submit a CA-2a, Notice of Recurrence of Disability, under a
previous OWCP claim established under file xxxxxx866, rather than file a new CA-1.”2
1

The record reflects that appellant filed a claim for a back injury which occurred on June 4, 2008 and which the
Office accepted acute lumbar sprain.
2

The Office stated that appellant’s claim for recurrence of disability was denied by Office decision dated May 27,
2009, claim number xxxxxx866.

Appellant contended that the information required to establish his claim under the present claim,
number xxxxxx415, was submitted by his employer under claim number xxxxxx866. The Office
noted that appellant’s supervisor confirmed that “the mix-up of correct filing of workers’
compensation claims” caused “hardship” for appellant.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, number xxxxxx415, involves appellant’s claim for a
work-related lumbar injury. In the May 14, 2010 decision, the Office noted reviewing evidence
and findings made in claim number xxxxx866 in reaching its decision. The evidence also
indicates that file number xxxxxx866 may have evidence germane to claim number xxxxxx415.
Claim number xxxxxx866 is not presently before the Board. Pursuant to Office procedures, the
Office has determined that cases should be combined where correct adjudication depends on
cross-referencing between files. In the instant appeal, it appears that, for a full and fair
adjudication, the Office claims pertaining to appellant’s lumbar conditions should be combined
pursuant to Office procedures.3 This will allow the Office to consider all relevant claim files in
developing appellant’s claim. Moreover, to consider appellant’s appeal at this stage would
involve a piecemeal adjudication of the issues in this case and raise the possibility of inconsistent
results. It is the Board’s policy to avoid such an outcome.4
The case will be remanded to the Office to combine case file numbers xxxxxx415 and
xxxxxx866. Following this and such other development as deemed necessary, the Office shall
issue an appropriate merit decision on appellant’s claim.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

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

2

IT IS HEREBY ORDERED THAT the May 14, 2010 decision be set aside and the
matter remanded to the Office of Workers’ Compensation Programs for further proceedings
consistent with this order of the Board.
Issued: April 21, 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

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