United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, DALLAS NETWORK
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1122
Issued: July 26, 2021

Case Submitted on the Record

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

On May 4, 2020 appellant filed a timely appeal from a December 5, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-1122.
On February 12, 2019 appellant, then a 58-year-old maintenance custodian, filed a
traumatic injury claim (Form CA-1) alleging that on December 26, 2018 he injured his left knee
when he pivoted while descending steps to lift a trash can into a gondola while in the performance
of duty.
Initially, the employing establishment submitted an occupational disease claim (Form
CA-2) on appellant’s behalf dated January 3, 2019, signed by S.J., an employing establishment
manager. OWCP assigned File No. xxxxxx700. Following preliminary development, appellant
contended that the employing establishment had filed the occupational disease claim in error. He
then filed the February 12, 2019 traumatic injury claim (Form CA-1). Thereafter, OWCP
developed the claim as a traumatic injury claim.
By decision dated April 3, 2019, OWCP denied the claim, finding that appellant had not
established that the December 26, 2018 employment incident occurred as alleged, or that he had
sustained a left knee injury causally related to his work duties.

On November 1, 2019 appellant requested reconsideration and submitted additional
evidence.
By decision dated December 5, 2019, OWCP denied reconsideration, finding that
appellant’s November 1, 2019 letter neither raised substantive legal questions, nor included new
and relevant evidence. It was, therefore, insufficient to warrant a review of OWCP’s prior decision
on the merits.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files or when two
or more injuries occur to the same part of the body.1 For example, if a new injury is reported for
an employee who previously filed an injury claim for a similar condition or the same part of the
body or when two or more separate injuries have occurred on the same date, doubling is required.2
The employing establishment filed a Form CA-2 on appellant’s behalf on January 3, 2019
regarding the December 2018 left knee injury to which OWCP assigned File No. xxxxxx700. The
Board notes that the medical record in OWCP File No. xxxxxx700 contains extensive reports and
diagnostic studies regarding the left knee.
For a full and fair adjudication, the Board finds that the case must be returned to OWCP to
administratively combine the current case record with OWCP File No. xxxxxx700 so it can
properly determine whether it properly denied appellant’s November 1, 2019 request for
reconsideration. Following this and other such further development as OWCP deems necessary,
it shall issue an appropriate decision. Accordingly,

1

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

Id.; W.H., Docket No. 20-0986 (issued April 27, 2021); L.H., Docket No. 18-1777 (issued July 2, 2019).

2

IT IS HEREBY ORDERED THAT the December 5, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: July 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Miami, FL, Employer
__________________________________________

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Appearances:
Edward Daniel, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1257
Issued: July 14, 2020

Case Submitted on the Record

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

JURISDICTION
On May 13, 2019 appellant, through his representative, filed a timely appeal from a
November 15, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 15, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include the additional condition of post-traumatic
stress disorder (PTSD) as causally related to his accepted February 26, 2007 employment injury;
(2) whether OWCP has met its burden of proof to terminate appellant’s wage-loss compensation
and medical benefits, effective September 1, 2017, as he no longer had residuals or disability
causally related to his accepted February 26, 2007 employment injury; and (3) whether appellant
has met his burden of proof to establish continuing disability or residuals on or after
September 1, 2017 due to the accepted February 26, 2007 employment injury.
FACTUAL HISTORY
On March 9, 2007 appellant, then a 57-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that, on February 26, 2007, he sustained a stress-related
condition when observing aircraft while in the performance of duty. He stopped work on March 9,
2007, and did not return. OWCP accepted the claim for adjustment disorder with anxiety. It paid
appellant wage-loss compensation on the supplemental rolls as of May 13, 2007, and on the
periodic rolls as of July 8, 2007.
On July 9, 2008 OWCP referred appellant, the case record, and a list of questions to
Dr. David M. Tobolowsky, a Board-certified psychiatrist, for a second opinion examination. The
questions included whether appellant had an emotional condition due to the work injury and
whether he was mentally capable of returning to work as an air traffic controller. In a July 20,
2008 report, Dr. Tobolowsky diagnosed PTSD and opined that it was “due to the work injury of
February 26, 2007.” He explained that, while working, appellant “was exposed to a situation in
which he believed that loss of life was likely and developed in reaction symptoms of hyper-arousal,
re-experiencing, and withdrawal.” Dr. Tobolowsky further noted that pharmacologically,
appellant would benefit from a medication approved for treating PTSD. He stated that appellant
was not able to return to work as an air traffic controller because he remained emotionally unstable
and was taking medication which medically disqualified him. Dr. Tobolowsky noted that
appellant was able to perform work of a lower stress level and referred him to a vocational
rehabilitation program.
On June 24, 2009 OWCP referred appellant, along with a statement of accepted facts
(SOAF), to Dr. David Flaherty, a Board-certified psychiatrist, for a second opinion examination
to determine the degree and extent of his current condition. In a report dated July 13, 2009,
Dr. Flaherty noted his review of appellant’s history and findings on examination. He diagnosed
PTSD “proximately caused by the 2007 work injury.” Dr. Flaherty noted that appellant’s
symptoms were “clinically significant as evidenced by marked distress that is in excess of what
would be expected from exposure to the stressor.” He indicated that appellant would benefit from
vocational rehabilitation services “to explore adequate career paths that accommodate his
psychiatric needs as returning to work as an Air Traffic Controller is not an option.”
Appellant continued to seek medical treatment for his psychiatric conditions.
In a report dated June 19, 2016, Dr. Stephen L. Kaplan, a Board-certified psychiatrist, noted
that appellant continued to suffer from the accepted condition of adjustment disorder with anxiety.
He also indicated that appellant had bi-polar affective disorder with manic depressive illness and
2

PTSD. Dr. Kaplan explained that appellant was unable to return to work in any capacity as the
“work[-]related conditions” had not resolved and due to the chronicity of the conditions, it was
impossible to predict when recovery should be expected.
On August 23, 2016 OWCP referred appellant, along with a SOAF, the case file, and a set
of questions, to Dr. Jared T. Ritter, a Board-certified psychiatrist, for a second opinion evaluation
regarding the status of appellant’s February 26, 2007 employment injury and his work capacity.
In a September 17, 2016 report, Dr. Ritter reviewed appellant’s psychiatric history,
examined appellant, provided findings, and concluded that appellant no longer had residuals of the
accepted condition and was no longer disabled from work as a result of the February 26, 2007
employment injury. He related that appellant’s preexisting bipolar disorder appeared to be the
most conclusive and severe current psychiatric disorder. Dr. Ritter explained that appellant did
not appear to be anxious, fearful or nervous on mental status examination. He noted that more
than nine years had passed since the removal of that stressor that caused the accepted adjustment
disorder and appellant no longer met the criteria for this diagnosis.
OWCP determined that a conflict of medical opinion existed between Dr. Kaplan and
Dr. Ritter as to whether appellant continued to have residuals and/or disability causally related to
the accepted February 26, 2007 employment injury. On April 7, 2017 it referred appellant to
Dr. Harish Kher, a Board-certified psychiatrist, for an impartial medical examination.
In a report dated April 28, 2017, the impartial medical examiner (IME) Dr. Kher, noted
appellant’s history of injury and extensive psychiatric treatment. He reviewed the SOAF,
examined appellant, provided findings, and concluded that appellant’s accepted condition of
adjustment disorder with anxiety had resolved. Dr. Kher explained that, by definition, adjustment
disorder was an individual’s response to an identified stressor and was expected that, with or
without treatment, the individual was expected to return to baseline functioning within six months.
He noted that appellant had received psychiatric/psychological treatment for more than 10 years.
Dr. Kher explained that appellant still had other conditions including bipolar disorder, and PTSD.
He also related that appellant’s residual disabling symptoms were due to nonwork-related
conditions of bipolar affective disorder, possible neurocognitive disorder, and head injuries.
Dr. Kher opined that appellant no longer had residuals and was no longer disabled from work due
to his work-related injury of February 26, 2007.
In a June 4, 2017 report, Dr. Kaplan reiterated that appellant suffered from adjustment
disorder with anxiety, along with bipolar affective disorder, manic depressive illness, and PTSD.
He indicated that the work-related conditions were still active and causing symptoms. Dr. Kaplan
noted that appellant also suffered from anger issues and had frequent mood swings from
excitement and euphoria to irritability. He opined that appellant’s work-related conditions had not
resolved and that “[d]ue to the chronicity of the conditions it is impossible to predict when recovery
should be expected.” Dr. Kaplan indicated that appellant was unable to work either part time or
full time. He noted that the present level of disability was a “direct result of the work[-]related
conditions.”
On July 27, 2017 OWCP provided appellant with a notice of proposed termination of his
wage-loss compensation and medical benefits, finding that the medical evidence of record
established that he no longer had residuals or continuing disability from his work injury. It
3

determined that the weight of the medical evidence rested with the April 28, 2017 report from
Dr. Kher. OWCP afforded appellant 30 days to submit additional evidence or argument.
In letters dated August 25 and 29, 2017, counsel argued that Dr. Kher’s report was
equivocal and required clarification. He also argued that it was unclear if appellant’s PTSD was
work related and caused disability from work. Counsel further argued that the PTSD was a
consequence of the primary work injury and should be an accepted condition.
By decision dated August 30, 2017, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective September 1, 2017. It found that the special
weight of the medical evidence rested with the IME, Dr. Kher, who concluded in his April 28,
2017 report that appellant had no residuals or disability due to his accepted February 26, 2007
employment injury.
On August 24, 2018 appellant, through counsel, requested reconsideration arguing that
Dr. Kher’s opinion was based upon an inaccurate SOAF.
In a report dated August 5, 2018, Dr. Kaplan noted appellant’s history of injury and
treatment and explained that the accepted condition had developed into PTSD as a consequential
condition. He noted appellant’s air traffic controller-related dreams and that the events of
February 2007 kept playing out in appellant’s head for weeks to months at a time. Dr. Kaplan
related that while appellant was initially diagnosed with adjustment disorder with anxiety as a
result of the February 26, 2007 employment injury, within a year appellant was referred by OWCP
to Dr. Tobolowsky for a second opinion evaluation and was diagnosed with PTSD, causally related
to the accepted employment injury. He opined that appellant’s PTSD arose from the original
diagnosis of adjustment disorder with anxiety, and was a consequential injury. Dr. Kaplan noted
that appellant had a history of motorcycle accidents and a head injury; however, he explained that
because they did not affect his ability to perform his duties at work, they did not cause appellant’s
PTSD.
By decision dated November 15, 2018, OWCP denied modification of the August 30, 2017
decision. It found that appellant no longer had residuals or disability due to the accepted condition
of adjustment disorder with anxiety. OWCP also found that Dr. Kher provided sufficient medical
rationale to support that appellant’s additional diagnosed conditions were not related to the
accepted employment injury.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and

4

See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018);
Jaja K. Asaramo, 55 ECAB 200 (2004).

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medical background, supporting such a causal relationship.5 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.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include PTSD as causally related to his accepted February 26,
2007 employment injury.
On July 30, 2008 appellant was evaluated by second opinion physician, Dr. Tobolowsky,
who diagnosed PTSD and opined that it was “due to the work injury of February 26, 2007.” He
explained that, while working, appellant “was exposed to a situation in which he believed that loss
of life was likely and developed in reaction symptoms of hyper-arousal, re-experiencing, and
withdrawal.” On July 13, 2009 appellant was evaluated by second opinion physician, Dr. Flaherty,
who also diagnosed PTSD “proximately caused by the 2007 work injury.” He noted that
appellant’s symptoms were “clinically significant as evidenced by marked distress that is in excess
of what would be expected from exposure to the stressor.” Both physicians opined that appellant
could not perform the duties of his regular position as an air traffic controller and indicated that he
would instead benefit from vocational rehabilitation services.7
As OWCP undertook development of the issue of expansion by referring appellant to
Drs. Tobolowsky and Flaherty to determine the nature and extent of his condition, and both referral
physicians opined that appellant’s PTSD was employment related, the Board finds that the weight
of the evidence of record establishes that appellant sustained PTSD causally related to his accepted
employment injury. The case shall therefore be remanded to determine the extent and degree of
any employment-related disability.
LEGAL PRECEDENT -- ISSUE 2
According to FECA,8 once OWCP accepts a claim and pays compensation, it has the
burden of proof to justify termination or modification of an employee’s benefits.9 OWCP may not
5

See T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

6

See M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).
7

The Board notes OWCP referred appellant to IME, Dr. Kher, to resolve a conflict in the medical opinion evidence
between Drs. Kaplan and Ritter on the issue of whether appellant remained disabled from work due to appellant’s
accepted adjustment disorder with anxiety. Dr. Ritter did not provide an opinion on whether appellant’s previously
diagnosed PTSD condition was causally related to the accepted employment injury. Therefore, while Dr. Kher opined
appellant’s PTSD to be nonwork related, he is not considered an IME on this issue. As his report lacks rationale it is
not of equal weight with the reports of second opinion physicians Drs. Tobolowsky and Flaherty on the issue of
expansion.
8

Supra note 2.

9

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

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terminate compensation without establishing that the disability had ceased or that it was no longer
related to the employment.10 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.11 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.12 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.13
Section 8123(a) of FECA provides in pertinent part: “If there is 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.”14 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 1, 2017.
As found above, the weight of the medical evidence as represented by second opinion
physicians Drs. Tobolowsky and Flaherty establishes that appellant’s diagnosed PTSD was
causally related to his accepted employment injury. Both physicians opined that appellant could
not perform the duties of his regular position as an air traffic controller and indicated that he would
instead benefit from vocational rehabilitation services. Although OWCP undertook development
by referring appellant to Drs. Tobolowsky and Flaherty to determine the nature and extent of his
condition, that development resulted in PTSD being accepted as an additional condition causally
related to the February 26, 2007 employment injury. As OWCP has not resolved the issue of
whether appellant’s residuals and/or disability due to all of his accepted conditions had ceased, the
Board finds that it has not met its burden of proof to terminate appellant’s wage-loss compensation
and medical benefits.16

10

A.G., Docket No. 18-0749 (issued November 7, 2018); see I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
11

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

12

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

13

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

14

5 U.S.C. § 8123(a).

15

G.T., Docket No. 18-1302 (issued October 22, 2019); D.M., Docket No. 18-0746 (issued November 26, 2018);
R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB 1010 (1980).
16

In light of the Board’s disposition herein, Issue 3 is rendered moot.

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CONCLUSION
The Board finds that appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include PTSD as causally related to his accepted February 26,
2007 employment injury. The Board further finds that OWCP has not met its burden of proof to
terminate his wage-loss compensation and medical benefits, effective September 1, 2017.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2018 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 14, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF HOMELAND SECURTY,
U.S. SECRET SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 19-1317
Issued: May 1, 2020

Case Submitted on the Record

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

JURISDICTION
On May 29, 2019 appellant filed a timely appeal from a March 22, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1

Appellant’s AB-1 Form indicates that he is also appealing from a purported May 21, 2019 OWCP decision.
However, no such decision is found in the case record. The Board notes that appellant is also seeking review of
OWCP’s handling of his other claims. However, the only other OWCP decision within the Board’s jurisdiction is a
January 4, 2019 decision contained in File No. xxxxxx615. The Clerk of the Appellate Boards will docket the appeal
of that claim separately.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 22, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted December 27, 2013 employment incident.
FACTUAL HISTORY
On December 31, 2013 appellant, then a 59-year-old telecommunications specialist, filed
a traumatic injury claim (Form CA-1) alleging that on December 27, 2013 he injured his right
shoulder, upper arm, forearm, hand, and neck while in the performance of duty. He explained that
as he was loading 12 fifty-pound battery boxes onto a cart, he felt a slight pull in his right shoulder.
As the day progressed the pain in his shoulder increased and radiated into his upper arm, forearm,
and hand. On the reverse side of the claim form, the employing establishment acknowledged that
appellant was injured in the performance of duty.
January 10, 2014 hospital records indicated that appellant was seen in the emergency room
by Dr. Yolanda Haywood, an emergency medicine specialist, for neck and arm pain. The records
noted that appellant may have a slipped disc in his back, and that he should avoid lifting objects
over five pounds until seen by an orthopedist. Dr. Haywood diagnosed acute neck pain provided
with educational materials about back pain, neck pain, and herniated intervertebral discs and gave
appellant a work release form indicating that prior to returning to work he should be cleared by an
orthopedic surgeon. Appellant was advised to follow up with an orthopedist and prescribed pain
medication.
Additional January 10, 2014 hospital records signed by Dr. Haywood and Dr. Rory
Merritt, an emergency medicine specialist, indicated that appellant presented with neck pain that
radiated to his right shoulder and down his right arm, which began on December 27, 2013 when
he was lifting 50-pound boxes while at work and had a sudden onset of right arm pain. Appellant
stated that he came to the hospital because his pain was not improving. He noted that his pain was
worse with neck extension, which also caused tingling and numbness in his hands and decreased
strength in his right arm. The records noted a history of low back sciatica. A physical examination
revealed mild paraspinal tenderness upon palpation in the right lateral low cerebral spine and
otherwise normal results.
January 20, 2014 notes by Dr. Charles Wilson, a family medicine and urology specialist,
indicated that appellant pulled his shoulder on December 27, 2013 and planned to get a magnetic
resonance imaging (MRI) scan. These notes were otherwise illegible.
Additional January 20, 2014 notes from Dr. Wilson stated that appellant was lifting 60pound batteries for a couple of hours when he first noted pulling and then pain in his right neck,
shoulder, and forearm. Appellant then noted weakness in his right forearm and shoulder muscles.
He went to the emergency room and was given medication which helped with the pain, but he still
had right arm weakness and he additionally experienced tingling in the index and middle fingers
of his right hand and on the extensor surface of his right forearm and lateral aspect of his arm.
Appellant reported diminished range of motion in his neck and neck pain when he looked up,
turned his head from right to left, and lifted heavy objects. He additionally noted that when he
abducted he heard a popping sound in his shoulder. Dr. Wilson conducted a physical examination
of appellant which revealed tenderness in his medial scapular spine in his right shoulder and 10 to
20 degrees less abduction on his right side compared to his left. When his right arm was raised
2

above 90 degrees appellant experienced pain and there was a popping sound, which could be
replicated with abduction and external rotation of appellant’s right shoulder. Dr. Wilson diagnosed
appellant with acute neck and shoulder pain with radiculopathy to the right arm and a herniated
disc. He advised appellant on his treatment options, and appellant chose to get an MRI scan and
noted that he already had an appointment with Dr. Paul Smucker, a physical medicine and
rehabilitation specialist. Dr. Wilson noted that appellant should not return to work until after his
appointment with Dr. Smucker.
A February 5, 2014 narrative medical report by Dr. Smucker indicated that appellant had
previously had issues with his lower back, but that his cervical spine problem was a new issue.
Dr. Smucker noted that appellant stated that while at work he was moving 50-pound boxes on
December 27, 2013 and felt a pain in his neck which intensified after a few hours and radiated
down his right arm. Appellant presented with pain which radiated down the outer aspect of his
upper arm and crossed over his elbow to the ulnar aspect of his forearm in addition to pain and
numbness in his thumb, first, and index fingers on his right hand. Dr. Smucker noted that
appellant’s pain interfered with his sleep and rendered him unable to perform many of his usual
tasks due to a loss of strength in his right arm. Appellant’s symptoms manifested when he turned
his head to the left and looked upwards. He noted that he could not work, as he had difficultly
working at a computer due to the cervical positioning required. Dr. Smucker conducted a physical
examination which revealed weakness in appellant’s right triceps, but otherwise normal results.
He noted that he presumed appellant had acute cervical radiculopathy and recommended
diagnostic imaging and work restrictions including avoiding prolonged static activity, lifting no
more than five pounds, and physical therapy.
A February 5, 2014 work status form signed by Dr. Smucker indicated that appellant could
return to work on February 5, 2014 with restrictions including no lifting over five pounds, limited
typing and computer use, and an option to sit or stand.
A March 5, 2014 letter from appellant requested to change doctors.
A March 24, 2014 medical report by Dr. Corey Wallach, an orthopedic surgeon, indicated
that appellant presented with pain in his neck and right arm from a December 27, 2013 injury
which occurred while lifting 50-pound boxes of batteries at work. A physical examination
revealed spasms of appellant’s paracervical muscle on the right and left and an abnormal cervical
spine rotation to the right. A foraminal compression test caused pain to radiate to appellant’s right
arm, and when his head was rotated to the right he experienced pain in his right shoulder. The
physical examination revealed otherwise normal results.
Dr. Wallach obtained x-rays of appellant’s cervical spine and diagnosed decreased disc
height at C5-6 and C6-7. His assessment noted that on December 27, 2013 while appellant was at
work lifting 50-pound boxes of batteries and stacking them into a pile he felt an immediate pulling
sensation in his neck and right shoulder, which developed into shooting pain radiating down the
back of his right arm and into his hand. Dr. Wallach stated that in the past three months appellant’s
pain slightly improved, but still bothered him daily, and he diagnosed cervicalgia, cervical
degenerative disc disease, and cervical radiculopathy. He discussed treatment options and
recommended that appellant try physical therapy for his neck and right shoulder.

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A March 24, 2014 certificate of disability signed by Dr. Wallach noted that he diagnosed
cervical strain and indicated that his prognosis was good. Dr. Wallach also indicated that appellant
had no restrictions and could return to work on March 24, 2014.
A March 24, 2014 physical therapy prescription from Dr. Wallach indicated that appellant
should attend physical therapy for his cervical strain condition two to three times a week for four
weeks.
In an April 23, 2014 letter, OWCP informed appellant that it could not authorize his request
for a change of physicians because he did not provide a specific name, address, and telephone
number for the physician he would like authorization for. It requested that he resubmit his request
with the aforementioned information. OWCP also noted that when appellant’s claim was received,
it appeared to be a minor injury that resulted in minimal or no lost time from work and was
administratively handled to allow for payment of a limited amount of medical expenses. The
merits of the claim, however, had not been formally considered. It noted that appellant could
submit a claim for compensation (Form CA-7) and a time analysis form (Form CA-7a) for a
maximum of four hours per visit for missed work due to treatment for a work-related injury.
A May 27, 2015 medical report by Dr. Barry Werries, an orthopedic surgeon, indicated
that appellant’s chief complaint was left knee pain, but noted that neck pain was still an active
problem.4
In a November 17, 2017 development letter, OWCP noted that additional factual and
medical evidence was required in support of appellant’s claim. It noted, among other things, that
the evidence was insufficient to establish that appellant actually experienced the employment
incident alleged. OWCP requested that appellant submit a comprehensive narrative medical report
from a qualified physician that included a diagnosis and an opinion, supported by medical
rationale, addressing how the claimed employment incident caused or aggravated a medical
condition. It also provided a questionnaire for his completion and afforded appellant 30 days to
submit the requested factual and medical evidence.
By decision dated December 27, 2017, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between his diagnosed medical conditions and the accepted December 27, 2013 employment
incident.
A June 20, 2018 letter provided by Dr. Wilson indicated that he examined appellant on
January 20, 2014 and consulted with Dr. Smucker. Appellant explained his job duties and how he
injured himself to Dr. Wilson, and Dr. Wilson noted that the type of injury sustained by appellant
is consistent with the type of injury he observed and documented in his notes. He also indicated
that as it had been four years since he conducted his examination of appellant, appellant reached
his point of maximum medical improvement (MMI).
On December 24, 2018 appellant requested reconsideration.

4

On August 14, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule award for permanent
impairment due to his claimed December 27, 2013 injury.

4

An accompanying December 4, 2018 narrative medical report by Dr. Wilson indicated that
appellant had experienced intermittent pain and weakness in his right neck, shoulder, and arm
since December 2013 when he was lifting a box of batteries at work. Dr. Wilson noted that
physical therapy improved appellant’s condition, but he still had residual upper extremity pain and
weakness and experienced episodes of severe pain at times, including an episode where he dropped
a chainsaw. He also noted appellant’s arm strength was so impaired that while prior to his injury
he could pull a 50-pound bow, he currently could not shoot a bow. Dr. Wilson pointed out that
appellant’s condition has not improved since 2015. A physical examination of appellant revealed
similar results to Dr. Wilson’s January 20, 2014 examination aside from decreased strength and
decreased range of motion in appellant’s right upper extremity and right shoulder pain with right
arm elevation under load. Dr. Wilson diagnosed cervical disc disease with radiculopathy from his
work injury and intermittently severe chronic shoulder and brachial plexus pain due to his 2013
work injury. He recommended avoiding lifting heavy weights, an MRI scan, and scheduling an
appointment with a neurologist.
Undated photographs of large boxes labeled “handle with care,” “lift with care,” and
“heavy” were also provided to OWCP.
By decision dated March 22, 2019, OWCP denied modification of its December 27, 2017
decision, finding that the medical evidence of record failed to establish a causal relationship
between appellant’s diagnosed medical conditions and his accepted December 27, 2013
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 timely filed within the applicable
time limitation of FECA,6 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.9 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the

5

Supra note 2.

6
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).

5

employment incident at the time, place, and in the manner alleged.10 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.11
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.12
Any case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted December 27, 2013 employment incident.
January 10, 2014 hospital records signed by Dr. Haywood and Dr. Merritt noted that
appellant presented with neck pain that radiated to his right shoulder and down his right arm which
began on December 27, 2013 when he was lifting 50-pound boxes while at work. The records
noted that appellant may have a slipped disc in his back, and contained a diagnosis of acute neck
pain. The Board has consistently held that a diagnosis of “pain” does not constitute the basis for
payment of compensation, as pain is a symptom rather than a specific diagnosis.14 Additionally,
as stated above, the opinion of the physician must be one of reasonable medical certainty.15 Due
to these deficiencies, the hospital records are insufficient to establish appellant’s claim.
January 20, 2014 notes from Dr. Wilson indicated that appellant was lifting 60-pound
batteries when he noted pulling and then pain in his right neck, shoulder, and forearm. Dr. Wilson
conducted a physical examination and diagnosed appellant with acute neck and shoulder pain with
radiculopathy to the right arm and a herniated disc. In his June 20, 2018 letter, he stated that the
type of injury sustained by appellant is consistent with the type of injury he observed and
documented in his notes. In his December 4, 2018 medical report, Dr. Wilson indicated that
appellant has experienced intermittent pain and weakness in his right neck, shoulder, and arm since
December 2013 when he was lifting a box of batteries at work. He conducted a physical
10
S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB
137 (2005).
11

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 9.
12

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

13
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
14

J.P., Docket No. 19-0303 (issued August 13, 2019).

15

See supra note 12.

6

examination and diagnosed cervical disc disease with radiculopathy from his work injury and
intermittently severe chronic shoulder and brachial plexus pain due to his 2013 work injury. In all
of these documents, Dr. Wilson does not explain how appellant’s lifting of the battery boxes
caused his diagnosed neck conditions. To be of probative medical value, a medical opinion must
explain how physiologically the movements involved in the employment incident caused or
contributed to the diagnosed conditions.16 As such, Dr. Wilson’s reports are insufficient to
establish appellant’s claim.
Dr. Smucker’s February 15, 2014 narrative medical report and work status form noted that
appellant stated that while at work he was moving 50-pound boxes on December 27, 2013 and felt
a pain in his neck which intensified after a few hours and radiated down his right arm. He
conducted a physical examination and noted that he “presumed appellant had cervical
radiculopathy.” As Dr. Smucker did not provide an opinion on causal relationship, his report is of
no probative value on the issue of causal relationship.17
Dr. Wallach’s March 24, 2014 medical report noted that appellant presented with pain in
his neck and right arm from a December 27, 2013 injury which occurred while lifting 50-pound
boxes of batteries at work. He obtained x-rays of appellant’s cervical spine and diagnosed him
with decreased disc height at C5-6 and C6-7. Dr. Wallach noted that appellant experienced neck
pain radiating down his right arm since his December 27, 2013 work injury, where while lifting
50-pound boxes of batteries and stacking them into a pile he felt an immediate pulling sensation
in his neck and right shoulder which developed into shooting pain radiating down the back of his
right arm and into his hand. He additionally diagnosed cervicalgia, cervical degenerative disc
disease, and cervical radiculopathy. Dr. Wallach does not explain how appellant’s injury, which
the doctor opined occurred when he was lifting heavy boxes, caused his diagnosed conditions. As
noted previously, to be of probative medical value, a medical opinion must explain how
physiologically the movements involved in the employment incident caused or contributed to the
diagnosed conditions.18 Additionally, such medical rationale is necessary in this case as
appellant’s medical findings reveal that he had a chronic medical condition (degenerative disc
disease) prior to his work injury and no physician distinguished between the effects of his
preexisting condition and his claimed work injury.19
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between appellant’s diagnosed medical conditions and the accepted December 27,
2013 employment incident. Thus, appellant has not met his burden of proof.
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

16

A.W., Docket No. 19-0327 (issued July 19, 2019).

17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

Supra note 15.

19

See S.N., Docket No. 18-1627 (issued May 15, 2019).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted December 27, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

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

Docket No. 08-1647
Issued: January 13, 2009

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 May 22, 2008 appellant filed a timely appeal from the February 12, 2008 Office of
Workers’ Compensation Programs’ hearing representative’s decision, which affirmed a July 24,
2007 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a four percent impairment of his left lower
extremity for which he received a schedule award.
FACTUAL HISTORY
On August 30, 2004 appellant, then a 55-year-old carrier, injured his left knee while
carrying a box up a flight of stairs.1 On January 5, 2005 the Office accepted the claim for left
1

The record reflects that appellant had a previous work-related arthroscopy on the left knee, the exact date is not
known. File No. xxxxxx369.

knee meniscus tear. It also approved a partial medial meniscectomy, which appellant underwent
on January 17, 2005.2 Appellant received appropriate compensation benefits. He returned to full
duty on March 2, 2005.
By letter dated November 30, 2005, appellant claimed a schedule award and submitted a
July 7, 2005 report from Dr. Nicholas Diamond, an osteopath, utilized the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001) (A.M.A., Guides)
and noted appellant’s history of injury and treatment. Dr. Diamond referred to Figure 17-8 and
noted that appellant had a grade of four out of five for motor strength deficit of the left
quadriceps for knee extension.3 Dr. Diamond referred to Table 18 and indicated that appellant
had an impairment of three percent for his pain-related impairment.4 He opined that appellant
had an impairment of 15 percent to the left lower extremity.
In a December 12, 2005 report, an Office medical adviser applied the findings of
Dr. Diamond to the A.M.A., Guides.5 He referred to Table 17-33 and noted that appellant
underwent a partial medial meniscectomy which represented two percent impairment to the left
lower extremity.6 Dr. Diamond also explained that appellant would not be entitled to an
additional 12 percent for muscle weakness based on manual muscle testing. He referred to
section 17.2p manual muscle testing, and explained that this “depends on the examinee’s
cooperation and is subject to his or her conscious or unconscious control.” Dr. Diamond referred
to section 17.2p manual muscle testing, and noted that this was not considered an objective
measurement.7 He also explained that, according to Table 17-2,8 diagnosis-based estimates
could not be combined with muscle strength testing. Additionally, the Office medical adviser
referred to Figure 18-1 and noted that appellant should receive an award of two percent for pain.9
He concluded that appellant reached maximum medical improvement on July 7, 2005 and
recommended a schedule award of four percent to the left lower extremity.
On March 1, 2006 the Office granted appellant a schedule award for four percent
permanent impairment of the left lower extremity. The award covered a period of 80.64 days
from July 7 to September 25, 2005.
On March 13, 2006 appellant’s representative requested a hearing, which was held on
July 31, 2006.
2

The Office also accepted appellant’s claim for a recurrence on January 17, 2005.

3

A.M.A., Guides 532.

4

Id. at 574.

5

He also noted that, while Dr. Diamond had provided findings for the right shoulder, this was not an accepted
condition.
6

A.M.A., Guides 546.

7

Id. at 531, 532.

8

Id. at 526.

9

Id. at 574.

2

In a November 20, 2006 decision, the Office hearing representative determined that there
was a conflict between Dr. Diamond, who indicated that appellant had an impairment of 15
percent to the left lower extremity and the Office medical adviser, who opined that appellant had
four percent impairment to the left lower extremity. The Office hearing representative remanded
the case for referral to an impartial medical examiner to resolve the conflict.
On February 6, 2007 the Office referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Jerry Case, a Board-certified orthopedic surgeon, for an
impartial medical evaluation. In a March 12, 2007 report, Dr. Case noted appellant’s history of
injury and treatment. He conducted a physical examination and noted that appellant had wellhealed scars from his surgery, walked with a normal gait and had no instability. Appellant had
negative McMurray’s, Lachman’s and anterior drawer tests and no atrophy. Dr. Case noted that
appellant had flexion to 125 degrees and full extension. He opined that no further medical
treatment was necessary and that appellant reached maximum medical improvement one year
after his January 17, 2005 surgery. Dr. Case utilized the A.M.A., Guides and advised that
appellant had two percent impairment for a partial meniscectomy and an additional two percent
impairment for the partial medial meniscectomy performed about four years earlier. He
concluded that appellant had a total four percent impairment of the left lower extremity.
In a March 21, 2007 report, the Office medical adviser agreed that appellant had four
percent impairment to the left lower extremity.
By decision dated April 4, 2007, the Office denied appellant’s claim for an additional
award.
By letter dated April 10, 2007, appellant requested a hearing.
In a July 3, 2007 decision, the Office hearing representative set aside and remanded the
April 4, 2007 decision. The Office hearing representative noted that, because the Office medical
adviser was involved in the conflict, he could not review the report of the impartial medical
examiner. The Office hearing representative indicated that the impartial medical examiner’s
report should be referred to another Office medical adviser and a de novo decision should be
issued.
In a July 17, 2007 report, the second Office medical adviser reviewed appellant’s history
of injury and treatment. He utilized the A.M.A., Guides and indicated that appellant was entitled
to an impairment of two percent for his first partial medial meniscectomy and an additional
impairment of two percent for his second partial medial meniscectomy. The medical adviser
indicated that there was no rating for pain as Dr. Case noted that appellant did not have any pain
or swelling. He concluded that appellant had no more than the four percent schedule award to
the left lower extremity.
By decision dated July 24, 2007, the Office found that the evidence was insufficient to
establish that appellant was entitled to an additional schedule award.
On July 26, 2007 appellant’s representative requested a hearing, which was held on
November 29, 2007.

3

By decision dated February 12, 2008, the Office hearing representative affirmed the
Office’s July 24, 2007 decision.
LEGAL PRECEDENT
The schedule award provision of the Act10 and its implementing regulations11 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. 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 for all claimants under the law,
good administrative practice requires the use of uniform standards applicable to all claimants.12
The A.M.A., Guides has been adopted by the implementing regulation as the appropriate
standard for evaluating schedule losses.13
For lower extremity impairments due to meniscectomies or ligament injuries involving
the knees, Table 17-1, page 525 of the A.M.A., Guides14 directs the clinician to utilize section
17.2j, beginning at page 545,15 as the appropriate method of impairment assessment. Section
17.2j, entitled Diagnosis-Based Estimates, instructs the clinician to assess the impairment using
the criteria in Table 17-33 at page 546, entitled Impairment Estimates for Certain Lower
Extremity Impairments.16 According to Table 17-33, a partial medial meniscectomy is
equivalent to a two percent impairment of the lower extremity.17
The A.M.A., Guides provides for three separate methods for calculating the impairment
of an individual: anatomic, functional and diagnosis based.18 The anatomic method involves
noting changes, including muscle atrophy, nerve impairment and vascular derangement, as found
during physical examination.19 The diagnosis-based method may be used to evaluate
impairments caused by specific fractures and deformities, as well as ligamentous instability,
bursitis and various surgical procedures, including joint replacements and meniscectomies.20 In

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404 (1999).

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

20 C.F.R. § 10.404.

14

A.M.A., Guides 525, Table 17-1 (5th ed. 2001).

15

Id. at 545.

16

Id. at 546, Table 17-33 (5th ed. 2001).

17

Id.

18

Id. at 525.

19

Id.

20

Id.

4

certain situations, diagnosis-based estimates are combined with other methods of assessment.21
The functional method is used for conditions when anatomic changes are difficult to categorize
or when functional implications have been documented and includes range of motion, gait
derangement and muscle strength.22 The evaluating physician must determine which method
best describes the impairment of a specific individual based on patient history and physical
examination.23 When uncertain about which method to use, the evaluator should calculate the
impairment using different alternatives and choose the method or combination of methods that
gives the most clinically accurate impairment rating.24 If more than one method can be used, the
method that provides the higher impairment rating should be adopted.25
The Federal Employees’ Compensation Act26 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
Office shall appoint a third physician who shall make an examination.27 In cases where it has
referred appellant to an impartial medical examiner to resolve a conflict in the medical evidence,
the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.28
ANALYSIS
The Office accepted appellant’s claim for a left knee meniscus tear and authorized a
partial medial meniscectomy, which appellant underwent on January 17, 2005.
The Office determined that a conflict of medical opinion existed regarding the nature and
extent of appellant’s impairment due to the March 15, 2000 work injury between Dr. Diamond,
appellant’s physician, who supported an impairment of 15 percent to the left lower extremity and
the Office medical adviser, who opined that appellant had an impairment of 4 percent to the left
lower extremity. It properly referred appellant to Dr. Case, a Board-certified orthopedic surgeon,
for an impartial medical examination to resolve the conflict.
In a March 12, 2007 report, Dr. Case noted appellant’s history of injury and treatment
and conducted a physical examination. Using the diagnosis-based estimates in Table 17-33,
21

The A.M.A., Guides specifically excludes combining diagnosis-based estimates with range of motion deficits
due to ankylosis. A.M.A., Guides 526 Table 17-2.
22

A.M.A., Guides at 525, Table 17-1.

23

Id. at 548, 555.

24

Id. at 526.

25

Id. at 527, 555.

26

5 U.S.C. §§ 8101-8193, 8123(a).

27

5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

28

Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

page 546, he reported that appellant had a two percent lower extremity impairment due to a
partial meniscectomy on the left. Dr. Case utilized the A.M.A., Guides and noted that appellant
should receive an impairment of two percent for a partial meniscectomy. He also rated an
additional two percent for a prior partial medial meniscectomy four years prior. Dr. Case
examined appellant and reported essentially normal findings. He concluded that appellant four
percent impairment to the left lower extremity and had reached maximum medical improvement
one year after his January 17, 2005 surgery.
The Board finds that Dr. Case’s opinion is entitled to special weight as his report is
sufficiently well rationalized and based upon a proper factual background. The Office properly
relied upon his report in finding that appellant had no more than four percent impairment of the
left lower extremity. Dr. Case examined appellant, reviewed his medical records and reported
accurate medical and employment histories. There is no probative medical evidence of record
establishing that appellant has more than a four percent impairment of the left lower extremity.
On appeal, appellant contended that the impartial medical examiner’s report was
deficient, as he did not appear to be aware of appellant’s prior surgery. However, Dr. Case took
into account appellant’s prior surgery in rating his overall impairment. Furthermore, appellant
asserted that it was error for the first Office medical adviser, who created the medical conflict
with Dr. Diamond, to review the report of Dr. Case, the impartial specialist. However, this
procedural error was noted by the Office hearing representative in a July 3, 2007 decision.29 The
Office hearing representative remanded the use for review by having a second Office medical
adviser. This action by the hearing representative remedied the procedural error.30
CONCLUSION
The Board finds that appellant has more than four percent impairment of his left lower
extremity, for which he received a schedule award.

29

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.11(d) (April 1993).
30

See Richard R. LeMay, 56 ECAB 341 (2005) (where the same Office medical adviser who created a medical
conflict reviewed the impartial specialist’s report, the Board remanded the case for another Office medical adviser to
review the impartial specialist’s report).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated February 12, 2008 is affirmed.

Issued: January 13, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
TENNESSEE VALLEY AUTHORITY,
COLBERT FOSSIL PLANT, Tuscumbia, AL,
Employer
__________________________________________

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

Docket No. 14-691
Issued: July 16, 2014

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 February 6, 2014 appellant filed a timely appeal from a January 23, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a ratable permanent
impairment caused by the accepted noise-induced hearing loss.
FACTUAL HISTORY
On September 9, 2013 appellant, then a 55-year-old assistant unit operator, filed an
occupational disease claim alleging that noise exposure at work caused hearing loss. In letters
dated September 12, 2013, OWCP informed appellant of the evidence needed to support his

1

5 U.S.C. § 8101 et seq.

claim. It also asked the employing establishment to provide information regarding his noise
exposure and hearing conservation measures.
Appellant noted that hearing protection was required and worn at all times. He claimed
exposure to high noise levels every day, which exceeded 85 decibels. The employing
establishment advised that the locations where appellant worked had comprehensive hearing
conservation programs in place. Appellant spent the majority of his career as an assistant unit
operator (AUO) and, since approximately 1996 (17 years), worked at the Reverse Osmosis plant,
which had a time weighted average noise exposure of 82.7 decibels for a 12-hour day.
Appellant submitted audiograms dated June 1, 1978 and September 30, 2013 obtained at
the employing establishment. The September 30, 2013 audiogram reflected testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the following: right
ear, 15, 15, 15 and 15 decibels; left ear 15, 10, 10 and 20 decibels, respectively. The report
which contained the September 30, 2013 audiogram listed the results of audiogram each year
from 1999 to 2013. Copies of appellant’s medical examination records were also included.
In a November 25, 2013 report, Dr. Whitney R. Mauldin, a Board-certified
otolaryngologist, noted appellant’s history of noise exposure and opined that he had not
substantiated his claim for a work-related hearing loss. He stated that the September 30, 2013
hearing examination showed normal hearing in the left ear and normal hearing at all frequencies
in the right ear except at 6,000 Hertz.
OWCP prepared a statement of accepted facts and referred appellant, together with the
medical record, to Dr. Jack W. Aland, a Board-certified otolaryngologist. In a December 16,
2013 report, Dr. Aland reviewed the history of noise exposure at work, the statement of accepted
facts and the medical record. On examination he opined that appellant had mild right
neurosensory hearing loss which was found to be work related because of the length and severity
of workplace noise exposure. Dr. Aland recommended that appellant avoid further noise
exposure. He submitted calibration certification and results of audiometric testing performed by
a certified audiologist. The audiogram performed on December 16, 2013, reflected testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second and revealed the following:
right ear 15, 15, 15 and 15 decibels; left ear 10, 10, 10 and 20 decibels, respectively.
On January 16, 2014 Dr. Eric Puestow, an OWCP medical adviser, reviewed Dr. Aland’s
report and the December 16, 2013 audiogram. He advised that the date of maximum medical
improvement was December 16, 2013 based on Dr. Aland’s examination. Dr. Puestow
determined that appellant’s bilateral hearing loss was not severe enough to be ratable under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).2
In a January 23, 2014 decision, OWCP accepted that appellant sustained bilateral hearing
loss due to employment-related noise exposure. It found that the loss was not sufficient to
warrant a schedule award because the extent of hearing loss was not severe enough to be ratable.

2

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

2

LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition is to be used.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added and averaged.8 The fence of 25 decibels is then 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.9 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.10 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.11 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.12
ANALYSIS
The Board finds that the evidence of record does not establish that appellant has a ratable
hearing loss based on his accepted bilateral hearing loss. The December 16, 2013 audiogram
results did not demonstrate ratable values.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

Supra note 2 at 250.

9

Id.

10

Id.

11

Id. at 251.

12

Horace L. Fuller, 53 ECAB 775 (2002).

3

The December 16, 2013 audiogram is the only study that complies with OWCP
certification procedures.13 It demonstrated record values at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second of 15, 15, 15 and 15 decibels on the right for a total of 60
decibels. This figure, when divided by four, results in an average hearing loss of 15 decibels.
The average of 15 decibels, when reduced by the 25-decibel fence, results in zero percent
monaural hearing loss in the right ear. The frequency levels on the left at 500, 1,000, 2,000 and
3,000 cycles per second revealed decibel losses of 10, 10, 10 and 20, for a total of 50 decibels.
This figure, when divided by four, results in an average hearing loss of 12.5 decibels, which
when reduced by 25 decibels, also results in zero percent monaural hearing loss of the left ear.
The Board finds that the December 16, 2013 audiogram did not demonstrate that appellant’s
hearing loss was ratable. Therefore, appellant is not entitled to a schedule award for his accepted
hearing loss condition.
The other audiograms of record are of no probative value because there was no
identification or certification of the examiner. Audiologists are not included among the
healthcare professionals recognized as a physician under FECA.14
On appeal appellant asserts that as he has trouble understanding conversations with any
background noise, he has an established hearing loss with tinnitus and therefore, he is entitled to
compensation. An award up to five percent for tinnitus may be granted in the presence of
measurable hearing loss if the tinnitus impacts the ability to perform the activities of living. The
medical evidence of record does not establish that appellant has measurable hearing loss which
impacts the ability to perform daily living activities.15 Since the December 16, 2013 audiogram
did not demonstrate that appellant’s hearing loss is ratable, he is not entitled to a schedule award
for his accepted hearing loss condition.
CONCLUSION
The Board finds that appellant did not establish that he is entitled to a schedule award for
his employment-related hearing loss as his hearing loss was not ratable.
13

OWCP procedures set forth requirements for the type of medical evidence used in evaluating hearing loss.
These include that the employee undergo both audiometric and otologic examination; that the audiometric testing
precede the otologic examination; that the audiometric testing be performed by an appropriately certified
audiologist; that the otologic examination be performed by an otolaryngologist certified or eligible for certification
by the American Academy of Otolaryngology; that the audiometric and otologic examination be performed by
different individuals as a method of evaluating the reliability of the findings; that all audiological equipment
authorized for testing meet the calibration protocol contained in the accreditation manual of the American Speech
and Hearing Association; that the audiometric test results include both bone conduction and pure tone air conduction
thresholds, speech reception thresholds and monaural discrimination scores; and that the otolaryngologist’s report
include: date and hour of examination; date and hour of employee’s last exposure to loud noise; a rationalized
medical opinion regarding the relation of the hearing loss to the employment-related noise exposure; and a statement
of the reliability of the tests. Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical
Records, Chapter 3.600.8(a) (September 1995); see Vernon Brown, 54 ECAB 376 (2003).
14

Thomas O. Bouis, 57 ECAB 602 (2006). Section 8101(2) of FECA provides that physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law. 5 U.S.C. § 8101(2). See Joshua A. Holmes, 42 ECAB 231 (1990) (an
audiogram prepared by an audiologist must be certified by a physician before it can be used to determine hearing
loss).
15

See R.D., 59 ECAB 127 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2014
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1054
Issued: March 30, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

2

claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

3

to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4


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

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Appearances:
William Sims, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1561
Issued: December 28, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2012 appellant, through her attorney, filed a timely appeal from a January 25,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective June 5,
2011 on the grounds that the selected position of receptionist represented her wage-earning
capacity.
FACTUAL HISTORY
This case was previously before the Board. In an order dated June 1, 2009, the Board
remanded the case on the grounds that the March 25, 2008 OWCP wage-earning capacity
1

5 U.S.C. § 8101 et seq.

decision was not properly issued.2 The Board noted that appellant had an authorized
representative, but the March 25, 2008 decision was not sent to the representative as required by
OWCP regulations. In a decision dated June 3, 2010, the Board reversed a June 17, 2009 OWCP
decision.3 The Board noted that, when a claimant has actual earnings, OWCP must determine
whether such earnings fairly and reasonably represent her wage-earning capacity. The
March 25, 2008 OWCP decision had reduced appellant’s compensation based on the selected
position of receptionist, without making findings as to why the actual earnings did not fairly and
reasonably represent her wage-earning capacity. The history of the case as provided in the
Board’s prior decision is incorporated herein by reference.
In a letter dated September 7, 2010, appellant’s representative stated that appellant
worked approximately 23 hours per week from September 4, 2007 to January 19, 2008. The
representative included time sheet records.
In a report dated September 13, 2010, Dr. Andre Eglevsky, a Board-certified orthopedic
surgeon, stated that appellant was still having problems with carpal tunnel. He indicated that she
was showing signs of arthritis with some joint swelling and subluxation about the base of the
thumbs bilaterally. Dr. Eglevsky submitted a duty status report dated September 13, 2010 which
indicated that appellant could work eight hours with restrictions that included five minutes of
keying each hour.
By letter dated November 26, 2010, OWCP advised appellant of a proposal to reduce her
compensation for wage loss. It stated that she had the capacity to perform the position of
receptionist, Dictionary of Occupational Titles No. 237.367-038 at $536.00 per week.4 A
worksheet indicated that the current pay rate for the date-of-injury position was $915.52.5 These
figures were the same as provided in OWCP’s December 14, 2007 notice of proposed reduction.
With respect to actual earnings, it found that appellant had worked part time and her date-ofinjury position was full time and, therefore, her actual earnings did not represent her wageearning capacity.
In a report dated April 19, 2011, Dr. Eglevsky stated that there was evidence of a
borderline right carpal tunnel syndrome and that appellant definitely had arthritis. He diagnosed
arthritis/tendinitis about the hands.
In a decision dated June 7, 2011, OWCP reduced appellant’s compensation effective
June 5, 2011. It found that she had the capacity to earn $536.00 in the selected position of
receptionist. The date-of-injury pay rate was reported as $915.52 as of March 1, 2007. In
2

Docket No. 08-2167 (issued June 1, 2009).

3

Docket No. 09-2160 (issued June 3, 2010).

4

As the Board noted in its prior decision, a rehabilitation counselor had submitted an October 22, 2007 report
stating that anticipated wages for receptionist position in appellant’s area was $21,424.00 per year. An OWCP
rehabilitation specialist, asserted in an October 29, 2007 report that the evidence from the rehabilitation counselor
established weekly wages of $536.00 (27,872.00 annually) for the receptionist position.
5

This pay rate was based on a date of injury pay rate as of March 1, 2007.

2

response to the argument from appellant’s representative that the vocational information was
dated, OWCP stated “the provenance of the decision stems from the original proposed
reduction.” As to medical evidence, OWCP stated that the April 19, 2011 report did not show
appellant was incapable of working.
On June 29, 2011 appellant requested a hearing before an OWCP hearing representative.
A hearing was held on October 21, 2011. Appellant submitted a September 26, 2011 report from
Dr. Eglevsky regarding continuing treatment.
By decision dated January 25, 2012, the hearing representative affirmed the June 7, 2011
decision.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.6
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if
the employee has no actual earnings, his or her wage-earning capacity is determined with due
regard to the nature of his or her injury, his or her degree of physical impairment, his or her usual
employment, his or her age, his or her qualifications for other employment, the availability of
suitable employment, and other factors and circumstances which may affect his or her wageearning capacity in his disabled condition.7
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.8 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.9

6

Carla Letcher, 46 ECAB 452 (1995).

7

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

8

See Dennis D. Owen, 44 ECAB 475 (1993).

9

5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

3

ANALYSIS
In the present case, the Board had directed OWCP to consider the issue of whether actual
earnings fairly and reasonably represented wage-earning capacity, prior to a determination based
on a selected position. With respect to actual earnings, the record indicated that appellant had
part-time earnings at approximately 23 hours per week. According to OWCP procedures, parttime earnings are not appropriate for a wage-earning capacity determination unless the claimant
was a part-time employee at the time of injury.10 Since there was no indication that appellant
was a part-time employee on the date of injury, a part-time position would not be appropriate for
a wage-earning capacity determination.
Having determined that actual earnings did not fairly and reasonably represent
appellant’s wage-earning capacity, OWCP proceeded to reissue its prior findings with respect to
the position of receptionist and reduce appellant’s compensation effective June 5, 2011. The
Board finds several deficiencies in OWCP’s determination as to wage-earning capacity.
As a preliminary matter, the Board notes that OWCP found that appellant was capable of
earning $536.00 per week in the selected position. The wage information was provided by an
OWCP rehabilitation specialist on October 29, 2007, who stated that the wage information came
from the rehabilitation counselor. The evidence of record from the rehabilitation counselor
stated that receptionist wages were $21,424.00 annually, which is $412.00 per week. The
rehabilitation counselor provided this information on a May 23, 2007 CA-66 form as well as an
October 22, 2007 report. If OWCP’s rehabilitation specialist had contrary evidence, it is not
evident from the record and the specialist provided no explanation as to how the specific wage
information was established.
In addition, the vocational rehabilitation evidence on which OWCP relied was not
current. The June 7, 2011 decision relied on evidence from 2007 as to wages and reasonable
availability of the selected position. This is not a retroactive wage-earning capacity
determination, but a determination that as of June 7, 2011 the selected position of receptionist
represented wage-earning capacity.11 Office procedures indicate that a proposed wage-earning
capacity determination based on a constructed position should be issued within 30 days of
vocational rehabilitation reports from the counselor and specialist.12 In this case, the information
from the rehabilitation counselor was provided more than three years prior to the proposed
reduction on compensation dated November 26, 2010. The Board finds OWCP’s decision was
not based on current vocational information.
A proper wage-earning capacity determination must be based on an adequate review of
the medical evidence to determine if the selected position is within appellant’s work restrictions.
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
11

A retroactive wage-earning capacity determination would not be appropriate as appellant was being paid
compensation for total disability. See id. at Chapter 2.814.8(f).
12

Id. at Chapter 2.814.8(e).

4

Preexisting conditions as well as employment-related conditions must be considered.13 In this
case, OWCP did not discuss the duty status report from Dr. Eglevsky dated September 13, 2010
which outlined appellant’s work restrictions and included restrictions on keying activity. Unless
the evidence is clear and unequivocal, it should secure medical evidence that specifically
addresses whether a claimant could perform the duties of the selected position.14 OWCP did not
make adequate findings with respect to the medical evidence of record.
It is OWCP’s burden of proof to reduce compensation. For the above reasons, the Board
finds that OWCP did not meet its burden to reduce appellant’s compensation as of June 5, 2011.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation effective June 5, 2011 on the grounds that the selected position of receptionist
represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2012 is reversed.
Issued: December 28, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

13

William Ray Fowler, 31 ECAB 1817, 1822 (1980).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (October 2009).

5