United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 17-0616
Issued: August 4, 2017

Case Submitted on the Record

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

JURISDICTION
On January 25, 2017 appellant filed a timely appeal from a November 21, 2016 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 appellant has met her burden of proof to establish more than four
percent binaural hearing loss, for which she previously received a schedule award.
On appeal appellant contends that the date of maximum medical improvement (MMI)
and period of her schedule award are incorrect. She questions how an OWCP district medical
adviser (DMA) and an OWCP referral physician determined the information that was relied on
by OWCP.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 23, 2015 appellant, then a 62-year-old weapon systems mechanic, filed an
occupational disease claim (Form CA-2) alleging hearing loss as a result of noise at work. She
claimed that she had a constant hum in her ears and was unable to understand what was being
said unless there was no background noise and/or she could see someone talking. Appellant first
became aware of her condition and its relationship to her federal employment on
January 6, 2014. She noted that it was hard to tell what was being said at her nephew’s birthday
celebration. Appellant compared a March 2, 2005 audiogram to a 2014 audiogram and noticed a
definite change in the audiograms findings. She maintained that she was only around noise at
work.
By letter dated November 30, 2015, OWCP informed appellant of the deficiencies in her
claim and requested that she respond to its inquiries within 30 days. It also requested that the
employing establishment submit information including the job sites where appellant worked, the
sources of noise appellant was exposed to, the period of exposure, and the decibel and frequency
of the exposure.
OWCP received audiograms performed by the employing establishment as part of a
hearing conservation program dated March 2, 2005 through November 18, 2015.
In a December 4, 2015 statement, appellant related that she was exposed to hazardous
noise in the employing establishment’s rubber shop from 1978 to 1979, 1980, 1983; fire control
from 1984 to 1993; and combat division from 2005 to 2015. She noted that she was removed
from the noise area in June 2015.2 Appellant indicated that she had not previously filed a claim
for hearing loss or an ear condition. She claimed that she had a constant hum/ringing in her ears.
Appellant reiterated that it was hard for her to hear what was being said if there was background
noise. She maintained that she had no hobbies that involved exposure to loud noise.
By letters dated February 3, 2016, OWCP referred appellant, together with a statement of
accepted facts (SOAF) and the medical record, to Thomas D. Burns, Au.D., an audiologist, and
Dr. Charles E. Hollingsworth, a Board-certified otolaryngologist, for an audiological evaluation
and otologic examination, respectively.
On February 22, 2016 Dr. Burns performed an audiogram which demonstrated testing at
500, 1,000, 2,000, and 3,000 hertz (Hz) and revealed decibel (dB) losses of 50, 35, 20, and 10,
respectively in appellant’s right ear. On the left, appellant’s dB losses at the above levels were
45, 35, 20, and 10, respectively.
In a February 22, 2016 medical report, Dr. Hollingsworth noted findings on physical
examination and diagnosed bilateral moderate low frequency, very mild mid frequency, and very
mild high frequency sensorineural hearing loss. He reviewed Dr. Burns’ February 22, 2016
audiogram and determined that appellant had 5.6 percent right monaural impairment, 3.8 percent
left monaural impairment, and 4.1 percent binaural impairment based on the sixth edition of the

2

On November 30, 2015 appellant retired from the employing establishment.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment,3 (A.M.A.,
Guides). Dr. Hollingsworth opined that her hearing loss was at least partially due to noise
exposure in her federal civilian employment. He reasoned that progressive loss was documented
on serial audiograms. Dr. Hollingsworth recommended proper ear protection as necessary and
hearing aids.
On February 26, 2016 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss.
On March 15, 2016 an OWCP DMA reviewed the reports of Dr. Burns and
Dr. Hollingsworth. She agreed with Dr. Hollingsworth that appellant had noise-induced
moderate low frequency and very mild mid and high frequency hearing loss. The DMA also
agreed that she had 5.6 percent monaural hearing loss in the right ear, 3.8 percent monaural
hearing loss in the left ear, equating to 4.1 percent binaural hearing loss under the sixth edition of
the A.M.A., Guides. She determined that appellant had reached MMI on February 22, 2016, the
date of Dr. Hollingsworth’s examination. The DMA related that hearing aids should be
authorized.
On May 11, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a May 23, 2016 decision, OWCP granted appellant a schedule award for four percent
binaural hearing loss. It determined that the date of MMI was February 22, 2016. The period of
the award ran from November 30, 2015 to January 24, 2016, a total of 56 days.
In an appeal request form and letter dated May 25, 2016, appellant requested a review of
the written record by an OWCP hearing representative. In the May 25, 2016 letter, she disagreed
with the findings regarding when her hearing impairment began and the percentage used to
calculate her schedule award. Appellant noted that Dr. Hollingsworth reported that she had 9.4
percent monaural hearing impairment and four percent binaural hearing impairment. She
believed that her schedule award should begin on August 9, 2010, the date of an accompanying
audiogram that revealed significant hearing loss.
Appellant resubmitted employing establishment audiograms dated August 9, 2010,
February 24, 2014, and November 18, 2015.
She submitted employing establishment
audiograms dated June 18, 2007, June 23, 2010, and March 19, 2014.
By decision dated November 21, 2016, an OWCP hearing representative found that
appellant had no more than four percent binaural hearing loss for which she previously received
a schedule award. He modified the May 23, 2016 decision to reflect that the period of the
schedule award was from February 22 to April 17, 2016 as the DMA had found that the date of
MMI was February 22, 2016.

3

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

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LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.8 Then, the fence of 25 dBs is deducted
because, as the A.M.A., Guides points out, losses below 25 dBs 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
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP DMA for an opinion concerning the nature and percentage of
binaural hearing loss in accordance with the A.M.A., Guides with the DMA providing rationale
for the percentage of impairment specified.13

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

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

7

A.M.A., Guides 250 (6th ed. 2009).

8

Id.

9

Id.

10

Id.

11

Id.

12

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted ( modifying prior decision), Docket No.
01-1570 (issued August 13, 2002); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

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ANALYSIS
The Board finds that appellant has failed to establish more than four percent binaural
hearing loss, for which she previously received a schedule award.
OWCP accepted appellant’s claim for bilateral sensorineural hearing loss based on the
February 22, 2016 medical opinion of Dr. Hollingsworth, an OWCP referral and Board-certified
otolaryngologist. Dr. Hollingsworth reviewed an audiogram performed on that date by
Dr. Burns, an OWCP referral audiologist, which revealed dB losses of 50, 35, 20, and 10 at 500,
1,000, 2,000, and 3,000 Hz, respectively, for the right ear. Testing of the left ear at the above
levels revealed dB losses of 45, 35, 20, and 10, respectively. Dr. Hollingsworth found that
appellant had 5.6 percent monaural hearing impairment of the right ear, 3.8 percent monaural
hearing impairment of the left ear, and 4.1 percent binaural hearing impairment based on the
sixth edition of the A.M.A., Guides.
Consistent with its procedures, OWCP properly referred the file to its DMA for a rating
of permanent impairment in accordance with the sixth edition of the A.M.A., Guides. On
March 15, 2016 OWCP’s DMA reviewed Dr. Collingsworth’s report and agreed that appellant
had moderate low frequency and very mild mid and high frequency hearing loss and 4.1 percent
binaural hearing impairment in accordance with the sixth edition of the A.M.A., Guides. Using
Dr. Burns’ February 22, 2016 audiogram to calculate appellant’s hearing loss in accordance with
the A.M.A., Guides, she averaged appellant’s right hearing levels of 50, 35, 20, and 10 dB at
500, 1,000, 2,000, and 3,000 Hz, which then averaged to total 28.75. The DMA subtracted the
25-dB fence and multiplied the remaining balance of 3.75 by 1.5 to calculate 5.6 percent
monaural hearing loss for the right ear. Appellant’s left ear hearing levels of 45, 35, 20, and 10
dB at 500, 1,000, 2,000, and 3,000 Hz were then averaged to total 27.5. The DMA subtracted
the 25-dB fence and multiplied the remaining balance of 2.5 by 1.5 to calculate 3.75 percent
monaural hearing loss for the left ear. She calculated 4.1 percent binaural hearing loss by
multiplying the lesser left ear loss of 3.8 percent by five, adding the greater 5.6 percent right ear
loss and dividing this sum by six. The DMA determined that appellant sustained a total 4.1
percent binaural hearing loss. She also determined that appellant had reached MMI on
February 22, 2016.
The Board finds that the weight of the medical evidence establishes that appellant has no
more than four percent binaural hearing loss.14
Although appellant submitted results from the employing establishment’s annual
audiometric testing from March 2, 2005 to November 18, 2015, these audiograms are insufficient
to establish her burden of proof as they do not comply with the requirements set forth by OWCP
to access permanent hearing loss. They lack proper certification of calibration, speech testing,
and bone conduction scores and were not prepared or certified as accurate by a physician as
defined under FECA. It is appellant’s burden of proof to submit a properly prepared and
14

The policy of OWCP is to round the calculated percentage of impairment up or down to the nearest whole
number. J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See also
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b)
(September 2010).

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certified audiogram to OWCP.15 OWCP was not required to rely on this evidence in determining
the degree of her hearing loss as it failed to constitute competent medical evidence.16
On appeal, appellant contends that the date of MMI and period of her schedule award are
incorrect. The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one which depends upon the medical findings in the record. The determination of such
date is to be made in each case upon the basis of the medical evidence in that case.17 The date of
MMI is usually considered to be the date of the medical examination that determined the extent
of the impairment.18 OWCP used February 22, 2016 as the date of MMI in its May 23, 2016
schedule award decision. OWCP’s hearing representative modified this decision to reflect that
the period of the award was from February 22 to April 17, 2016 rather than November 30, 2015
to January 24, 2016.
February 22, 2016 was the date Dr. Hollingsworth, the referral
otolaryngologist, conducted a second opinion evaluation. That was also the date Dr. Burns, the
referral audiologist, performed an audiogram. On March 15, 2016 an OWCP DMA confirmed
that the date of MMI was February 22, 2016, the date of Dr. Hollingsworth’s report and the
audiologic examination. For these reasons, the Board finds that OWCP properly identified the
date of MMI as February 22, 2016 and that the period of appellant’s schedule award should
begin on that date.19
Appellant questions how the DMA and Dr. Hollingsworth determined the information
relied on by OWCP. As discussed above, OWCP evaluates industrial hearing loss in accordance
with the standards contained in the A.M.A., Guides. Both the DMA and Dr. Hollingsworth
properly applied the standards of the sixth edition of the A.M.A., Guides to the February 22,
2016 audiogram to find that she has four percent binaural hearing loss. Appellant has not
submitted any medical evidence in conformance with the standards set forth in the A.M.A.,
Guides establishing that she is entitled to a schedule award greater than that which she received.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

15

See R.B., Docket No. 10-1512 (issued March 24, 2011); Robert E. Cullison, id.; Vincent Holmes, 53 ECAB 468
(2002) (OWCP does not have to review audiograms not certified by a physician and it is the claimant’s burden to
submit a properly certified audiogram for review if he objects to the audiogram selected by OWCP for determining
the degree of hearing loss).
16

Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued
December 6, 2012).
17

See Marie J. Born, 27 ECAB 623 (1976).

18

See Richard Larry Enders, 48 ECAB 184 n.12 (1996) (date of the audiologic examination).

19

Cf. K.M., Docket No. 12-1137 (issued October 19, 2012) (where the Board found that OWCP improperly
identified the date of MMI and, thus, modified the date to be when the referral physician examined appellant for the
purpose of evaluating permanent impairment, not the date he recalculated his rating under the sixth edition of the
A.M.A., Guides).

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CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained more than four percent binaural hearing loss for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2017
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Conway, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq. for the appellant
Office of Solicitor, for the Director

Docket No. 13-1561
Issued: November 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 19, 2013 appellant, through his attorney, filed a timely appeal from the June 10,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than a 25 percent impairment of his left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On January 8, 2010 appellant, a 52-year-old regular carrier, sustained a traumatic injury
in the performance of duty when he hyperextended his left knee while walking up some snowy

1

5 U.S.C. § 8101 et seq.

steps. OWCP accepted his claim for left knee sprain and, later, for acceleration of preexisting
left knee osteoarthritis.
OWCP authorized a left total knee replacement, which was performed on
January 13, 2011. Dr. Andrew S. Kaye, the Board-certified orthopedic surgeon, saw appellant
on January 24, 2011 and noted 0 to 110 degrees of motion and no instability. On May 18, 2011
Dr. Kaye found a little bit of laxity medially and laterally, “but certainly he has got stability.”
There was no anterior or posterior instability. Dr. Kaye did not feel any give on rotation, but in
full extension appellant had a millimeter or two of give medially and laterally, though it was
equal. Motion was 0 to 120 degrees.
On June 20, 2011 Dr. Kaye noted 0 to 130 degrees of motion. He did not feel any
instability at 0 to 30 degrees of flexion and extension. Dr. Kaye saw no signs of loosening or
abnormality from x-rays obtained that day. He offered much the same findings on August 26
and December 12, 2011.
On September 11, 2012 appellant saw Dr. Richard L. McGough III, a Board-certified
orthopedic surgeon with associate professor status who took over appellant’s care.
Dr. McGough found “a lot of sagittal instability.” Radiographic examination of plain films
showed a perfectly seated knee. Dr. McGough diagnosed flexion instability. On October 11,
2012 he clarified that appellant’s diagnosis was failed knee arthroplasty. Appellant had perfect
alignment of his components, but his knee was too loose in flexion, moving abnormally when he
walked. By “a lot of sagittal motion,” Dr. McGough meant that when he pulled appellant’s knee
forward, it moved to an abnormal degree. “This is one cause of pain and disability in a patient
with a knee that looks perfect on radiographs, and can only be remedied by revision surgery. It
was not tested by [other physicians] as per the notes.”
On December 3, 2012 Dr. McGough found that appellant was “grossly loose in flexion.”
Dr. S. Joshua Szabo, a Board-certified orthopedic surgeon and OWCP second opinion
physician, examined appellant on December 20, 2012. He found the left knee to be well aligned
with motion from 0 to 120 degrees. Anterior drawer did not demonstrate significant excursion.
Dr. Szabo stated: “It is Dr. McGough’s belief that [appellant’s] present symptoms are due to
flexion instability of his present knee arthroplasty however by subjective history and objective
findings, I am unable to support this finding.”
Dr. McGough examined appellant on February 4, 2013. On physical examination he
stated he could sublux appellant’s knee anteriorly at least 12 to 14 millimeters. Dr. McGough
diagnosed mid flexion instability and told appellant that he thought his knee was too loose in
flexion and was causing a lot of his symptoms.
In an April 8, 2013 narrative report, Dr. McGough noted that appellant had complained
of a sensation of instability, and upon evaluation, he felt that appellant did have a substantial
amount of instability in his prosthetic.
“Since that point in time [appellant] has had multiple other evaluations of his
knee, and some of his examiners have been able to find this instability, some have
not. In examining him by sagittal motion I can nearly dislocate his knee, I think
2

that it is substantially loose in flexion. … I noted that many of the secondary
examiners did not choose to perform this exam[ination].”
***
“In my most recent physical examination which was dated [February 4, 2013] I
noted that I could sublux him anteriorly approximately 12 [to] 14 millimeters -this is far looser than one should have, and would produce a knee that has the
anterior pain and instability that he describes as he puts undue tension on his
patellofemoral mechanism.”
In examining appellant’s knee currently, Dr. McGough found to a reasonable degree of
medical certainty that “this is a knee that is too loose in flexion” and would benefit from revision
surgery.
Appellant filed a schedule award claim. He submitted an April 25, 2013 impairment
evaluation from Dr. Michael J. Platto, a Board-certified physiatrist, who related appellant’s
history and complaints. Findings on physical examination included left knee flexion to 113
degrees and extension lacking 8 degrees. It was Dr. Platto’s opinion that under Table 16-3, page
511 of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(6th ed. 2009), the most appropriate classification for appellant’s left total knee replacement was
class 3 or a fair result from his total knee replacement: fair position, mild instability and/or mild
motion deficit. This gave appellant a default impairment rating of 37 percent for his left lower
extremity. Dr. Platto reduced the rating to 31 percent, given appellant’s moderate functional
history and moderate physical examination.
On the issue of preexisting conditions, Dr. Platto noted that appellant did mention left
ankle pain and arthritis. An x-ray on April 26, 2013 showed an ankle joint space interval of
greater than three millimeters. “These mild findings on x-ray would not meet any of the criteria
for receiving an impairment according to Table 16-2, page 506, i.e., there is no evidence of
impingement, full-thickness articular cartilage defect, cystic changes, focal area of avascular
necrosis or ununited osteochondral fracture.” Dr. Platto concluded that appellant’s final
impairment rating remained at 31 percent for the left leg.
On May 8, 2013 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and OWCP
medical adviser, reviewed the record to determine whether Dr. Platto’s rating was in accordance
with the A.M.A., Guides. He noted that Dr. Kaye, the operating surgeon, found full range of
motion and no instability on December 12, 2011. On the basis of that examination, therefore,
appellant’s total knee replacement fell into class 2, or a good result with good position, stability
and function. Dr. Berman found Dr. Platto’s class 3 rating for a fair result to be incorrect:
“indicating that it was a fair result rather than a good result with fair position, which is incorrect,
mild instability, which according to his treating physician, is incorrect, and mild motion deficit is
also incorrect since it was documented that he had 120 degrees of flexion by his treating
physician.” The medical adviser concluded that appellant had a final impairment rating of 25
percent.

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On June 10, 2013 OWCP granted appellant a schedule award for a 25 percent impairment
of his left lower extremity.
On appeal appellant’s representative argues two errors. First, the medical adviser used
Dr. Kaye’s out-of-date findings from 2011 instead of Dr. Platto’s more recent findings. He
stated that Dr. Kaye’s later reports documented the deterioration of appellant’s condition.
Second, although it did not appear to change the rating, the medical adviser did not consider
appellant’s preexisting ankle condition.
LEGAL PRECEDENT
The schedule award provisions of FECA2 and the implementing regulations3 set forth the
number of weeks of compensation payable to employees who sustain permanent impairment of a
scheduled member, function or organ of the body. FECA, however, does not specify the manner
in which the percentage of loss shall be determined. The method used in making such a
determination is a matter that rests within the sound discretion of OWCP.4
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6
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.7
ANALYSIS
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment: no objective problem, mild problem, moderate problem, severe problem,
very severe problem approaching total function loss. This provides a default impairment rating,

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
7

5 U.S.C. § 8123(a).

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which can be adjusted slightly up or down using grade modifiers or nonkey factors, such as
functional history, physical examination and clinical studies.8
The impairment values for a total knee replacement are found in Table 16-3, page 511 of
the A.M.A., Guides or the Knee Regional Grid. A good result -- good position, stable, functional
-- has a default impairment value of 25 percent. A fair result -- fair position, mild instability
and/or mild motion deficit -- has a default impairment value of 37 percent.
The proper classification of appellant’s left total knee replacement thus depends on how
the medical evidence documents position, stability and motion following the January 13, 2011
surgery. Dr. Berman reviewed the record and relied on the findings of Dr. Kaye, the operating
orthopedic surgeon, who found no instability on December 12, 2011. Nine months later,
Dr. McGough, the treating orthopedic surgeon, found sagittal instability. When he pulled
appellant’s knee forward, a maneuver other physicians did not perform, it moved to an abnormal
degree. On December 3, 2012 Dr. McGough found that appellant’s knee was grossly loose in
flexion.
Dr. Szabo, the orthopedic surgeon and OWCP second opinion physician, examined
appellant on December 20, 2012. He was unable to support Dr. McGough’s findings of flexion
instability. An anterior drawer pull did not demonstrate significant excursion.
Dr. McGough reexamined appellant on February 4, 2013 and found that he could sublux
appellant’s knee anteriorly at least 12 to 14 millimeters. On April 8, 2013 he explained that he
could almost dislocate appellant’s left knee with sagittal motion. Appellant’s prosthetic, he
found, was far looser than one should have and was consistent with appellant’s complaint of
anterior pain and instability.
The Board finds a conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a), between
Dr. McGough and Dr. Szabo on the extent of any instability following appellant’s left total knee
replacement. There is also a conflict between Dr. Platto, appellant’s Board-certified physiatrist,
and Dr. Szabo on the extent of any loss of motion. Consistent with the findings of other
physicians, Dr. Szabo found full range of motion. Dr. Platto, however, found extension lacking
eight degrees. As the extent of any instability and the extent of any motion deficit directly bear
on the proper classification of appellant’s surgical result under Table 16-3 of the A.M.A.,
Guides,9 the Board will set aside OWCP’s June 10, 2013 decision and remand the case for an
impartial medical evaluation to resolve the conflict.
Following such further development of the evidence as may be necessary, OWCP shall
issue a de novo decision on appellant’s schedule award claim.

8

A.M.A., Guides 497 (6th ed. 2009).

9

There is no conflict on the positioning of appellant’s prosthetic, which all agree is good.

5

CONCLUSION
The Board finds that this case is not in posture for decision. Referral to an impartial
medical specialist, pursuant to 5 U.S.C. § 8123(a), is warranted to resolve a conflict on the extent
of any instability and motion deficit in appellant’s left knee.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: November 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF DEFENSE,
New Cumberland, PA, Employer
__________________________________________

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

Docket No. 10-130
Issued: September 22, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant, through counsel, filed a timely appeal from the
September 15, 2009 merit decision of the Office of Workers’ Compensation Programs’ finding
that he did not sustain an injury while in the performance of duty. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained back and neck injuries on November 28, 2008,
as alleged.
On appeal, counsel contends that the Office hearing representative’s decision was
contrary to fact and law.
FACTUAL HISTORY
On December 11, 2008 appellant, then a 39-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that on November 28, 2008 he sustained a midback and neck strain when he twisted his back while lifting a box that weighed over 40 pounds

and placed it into a tri-wall container.1 He stopped work on that date. On the CA-1 form the
employing establishment stated that it received notice of the claimed injury on
December 16, 2008. A September 12, 2008 hospital record advised that appellant sustained a
thoracic myofascial strain.
By letter dated December 29, 2008, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It addressed the factual and medical evidence
that he needed to submit.
The employing establishment controverted appellant’s claim. In correspondence dated
December 2 and 8, 2008, Ronald L. Smith, a safety specialist, stated that on November 28, 2008
appellant became upset and asked to go home after being assigned to work in a different area.
Valarie Dickerson, a supervisor, sent appellant to Rodney Owens, a manager, because appellant
did not have any leave. Mr. Owens denied appellant’s request for leave and advised him to
return to work. Mr. Smith stated that after lunch, appellant claimed that he sustained a
recurrence of a June 2008 employment-related injury and a new right shoulder injury while
processing a package. Appellant rated his back pain as 12 on a scale of 1 to 10. He requested
permission to seek medical treatment at a hospital and assignment of a claim number to his
injury. After appellant completed a CA-1 form, he moved around in a chair, leaned forward and
stood up once without showing any signs of being in pain. On December 2, 2008 he advised the
employing establishment that he could not obtain a medical appointment until
December 24, 2008. Mr. Smith did not prepare a mishap report regarding appellant’s claimed
incident because he did not believe an injury had occurred.
In correspondence dated December 3 and 16, 2008, Ms. Dickerson stated that on
November 28, 2008 appellant related that he experienced pain that fell within the range of 7 to 8.
She assigned him to the Fed-Ex Air line where he would lift jiffy bags rather than boxes within
his 20-pound restriction. Prior to lunch, appellant informed Ms. Dickerson that he experienced
further pain after lifting a box. He requested permission to leave work. Ms. Dickerson referred
appellant to Mr. Owens because she could not approve leave without pay. She did not witness
the claimed lifting incident and was unable to determine the weight of any box. Ms. Dickerson
stated that, although appellant’s injury could have constituted a recurrence, she gave him a CA-1
form and instructed an employee to take him to a hospital.
In a November 28, 2008 statement, appellant contended that he experienced pain as a
result of lifting a 20-pound box into a tri-wall container. He rated his pain as 10 out of 10.
Appellant noted that he tried to continue work but, he was unable to do so due to pain.
In a November 28, 2008 work restriction evaluation, Pam Darden, a nurse, advised that
appellant could work eight hours a day with restrictions. In a January 5, 2009 medical report, a
physician whose signature is illegible, advised that appellant sustained a thoracic herniated
nucleus pulposus at T8 and T9. Appellant was found unable to work since December 31, 2008.

1

Prior to the instant claim, appellant filed a CA-1 form, File No. xxxxxx822, for a back injury he sustained on
June 6, 2008. The Office accepted his claim for thoracic strain.

2

In a decision dated February 2, 2009, the Office denied appellant’s claim, finding that the
factual evidence failed to establish that the November 28, 2008 incident occurred as alleged. It
also found that the medical evidence failed to establish that he sustained a back injury causally
related to the claimed incident.
In a February 18, 2009 letter, appellant, through counsel, requested a telephonic hearing
with an Office hearing representative. In hospital reports dated November 28, 2008, Ms. Darden
and other registered nurses addressed his back pain and medications. The history reflects that
after appellant moved a box at work on November 28, 2008 he had trouble moving his back.
Ms. Darden listed her findings on physical examination and diagnosed acute thoracic myofascial
strain and chronic low back pain.
By decision dated September 15, 2009, an Office hearing representative affirmed the
February 2, 2009 decision. She found that the factual evidence was insufficient to establish that
the November 28, 2008 incident occurred as alleged. The hearing representative reviewed the
medical evidence in File Nos. xxxxxx390 and xxxxxx822 and found Ms. Darden’s
November 28, 2008 report in File No. xxxxxx390 and a December 24, 2008 report from
Dr. Allen Kao, an attending physiatrist, and Dr. William J. Rolle, Jr., an attending Boardcertified physiatrist in File No. xxxxxx822 addressed appellant’s cervical condition.2 This
evidence was insufficient to establish that he sustained a back or neck injury causally related to
the November 28, 2008 incident.3
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.5 These are the essential elements of each

2

In the December 24, 2008 report, Dr. Kao and Dr. Rolle noted that they were performing a follow-up evaluation
of appellant regarding his June 6, 2008 employment injury. During his last visit in November 2008, appellant
related to the physicians that his pain had improved which enabled him to return to light-duty work. Dr. Kao and
Dr. Rolle obtained a history that on November 28, 2008 appellant reinjured himself while trying to lift an object
weighing approximately 40 pounds with a twisting motion of his thoracic area while performing his light-duty work
duties. The physicians listed essentially normal findings on physical examination with tenderness to palpation over
the cervical paraspinal muscles bilaterally and thoracic paraspinal muscles on the right side at the middle and lower
thoracic levels. Dr. Kao and Dr. Rolle opined that appellant likely sustained a thoracic and cervical sprain/strain
following a work-related injury.
3

The remaining medical evidence reviewed by the Office in File No. xxxxxx822 is relevant to appellant’s
accepted thoracic condition.
4

5 U.S.C. §§ 8101-8193.

5

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

3

and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. An employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.7 The employee must also
submit medical evidence to establish that the employment incident caused a personal injury.8 An
employee may establish that the employment incident occurred as alleged, but fail to show that
his or her disability and/or condition relates to the employment incident.9
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.10 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.11 An employee
has not met his or her burden of proof in establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.12
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.13 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.14

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 5.
7

Delphyne L. Glover, 51 ECAB 146 (1999).

8

Donna A. Lietz, 57 ECAB 203 (2005); Alvin V. Gadd, 57 ECAB 172 (2005); David Apgar, 57 ECAB
137 (2005).
9

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

See Louise F. Garnett, 47 ECAB 639 (1996); Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803(2)(a) (June 1995).
11

See Betty J. Smith, 54 ECAB 174 (2002).

12

Id.

13

Linda S. Christian, 46 ECAB 598 (1995).

14

Gregory J. Reser, 57 ECAB 277 (2005).

4

The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.15 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.16 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.17
ANALYSIS
Appellant alleged that he sustained back injuries in the performance of duty on
November 28, 2008. The Board finds that he established that the employment incident occurred
on November 28, 2008, as alleged.
The Board finds that there are no such inconsistencies in the evidence as to cast serious
doubt upon the validity of appellant’s claim that he experienced the lifting incident on
November 28, 2008. Appellant consistently claimed that he sustained injury on November 28,
2008 while lifting a box at work. He received medical treatment contemporaneous to the
November 28, 2008 incident and related a history of injury to health care providers consistent
with his claim. On November 28, 2008 Ms. Darden, a nurse, recorded that appellant experienced
trouble with moving his back after moving a box at work on that date. She diagnosed an acute
thoracic myofascial strain and chronic low back pain. The December 24, 2008 report from
Dr. Kao and Dr. Rolle recorded a history that on November 28, 2008 appellant reinjured himself
while lifting a 40-pound object. The physicians opined that he likely sustained a work-related
thoracic and cervical sprain/strain. Although Ms. Dickerson contended that appellant did not
sustain the November 28, 2008 lifting incident, she acknowledged that he reported the incident to
her on the date of injury. Mr. Smith contended that the lifting incident did not occur as appellant
wished to go home after being assigned to work in a different area and did not exhibit any signs
of pain. This evidence is not sufficient to establish that the incident did not occur as alleged.
The Board finds that the reports from Ms. Darden, Dr. Kao and Dr. Rolle provide a
consistent history of incident and appellant received medical treatment for his back
contemporaneous with the November 28, 2008 incident. Accordingly, the Board finds that the
evidence supports that the November 28, 2008 incident occurred as alleged.18
The Board finds, however, that appellant did not submit sufficient medical evidence to
establish that he sustained a back injury due to the accepted November 28, 2008 employment
incident. Ms. Darden is a nurse practitioner. A nurse practitioner is not a physician as defined

15

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
16

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

17

Charles E. Evans, 48 ECAB 692 (1997).

18

Louise F. Garnett, 47 ECAB 639, 643-44 (1996); Constance G. Patterson, 41 ECAB 206 (1989); Julie B.
Hawkins, 38 ECAB 393 (1987).

5

under the Act.19 Registered nurses, licensed practical nurses, physician’s assistants and physical
therapists are not “physicians” as defined under the Act and their opinions are of no probative
medical value. The nurse reports of record are not sufficient to establish appellant’s claim.20
The December 24, 2008 report from Dr. Kao and Dr. Rolle described the November 28,
2008 employment incident and found that appellant “likely” sustained a work-related thoracic
and cervical sprain/strain. The physicians did not provide a firm diagnosis regarding his thoracic
and cervical conditions. Moreover, Dr. Kao and Dr. Rolle did not provide medical rationale
explaining how these conditions were caused by the November 28, 2008 employment incident.21
The opinion expressed is speculative, at best. The Board finds that this evidence is of diminished
probative value.
A September 12, 2008 hospital record found that appellant sustained a thoracic
myofascial strain; however, it is not relevant in establishing causal relation as it predates the
November 28, 2008 employment incident.
The Board finds that there is insufficient rationalized medical evidence to establish that
appellant sustained a back injury causally related to the accepted November 28, 2008
employment incident. Appellant did not meet his burden of proof. For this reason, the Board
finds no error of fact or law as argued on appeal. The decisions below will be modified to reflect
that appellant established the November 28, 2008 lifting incident.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a back injury on
November 28, 2008, as alleged.

19

See 5 U.S.C. § 8101(2) which provides: “physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law;” see also Roy L. Humphrey, 57 ECAB 238 (2005); Jennifer L. Sharp, 48 ECAB 209 (1996).
20

Id.

21

Daniel Deparini, 44 ECAB 657, 659 (1993).

6

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: September 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, MOUNTAIN
STATION, Killeen, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0255
Issued: July 2, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 16, 2017 appellant, through counsel, filed a timely appeal from a
September 14, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
period September 19, 2015 through January 8, 2016 causally related to a September 16, 2015
employment injury.
On appeal counsel asserts that OWCP’s decision ignored clinical findings.
FACTUAL HISTORY
On September 17, 2015 appellant, then a 39-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her head on a mailbox while delivering mail on
September 16, 2015. She stopped work on the date of injury. On January 5, 2016 OWCP accepted
appellant’s claim for concussion with loss of consciousness of 30 minutes or less.
An emergency responder report dated September 16, 2015 noted a history that appellant
hit the back of her head on a mailbox when she rose from picking up something she had dropped,
that she had a short loss of consciousness, and that she complained of continued dizziness and
nausea. A small laceration was noted on the posterior side of her head. Neurological status was
assessed as normal. Appellant was transported to Seton Medical Center emergency department.
On a September 16, 2015 emergency department report, Dr. Jared R. Kennedy, an
emergency medicine physician, reported a history that appellant hit her head on a mailbox. He
described physical examination findings and advised that a computerized tomography (CT) scan
of the head was normal. Dr. Kennedy diagnosed minor closed head injury. Appellant was
discharged home in stable condition with pain medication. She was again seen in the emergency
department on September 17, 2015. Dr. Kennedy noted a complaint of an intense headache.
Medication was administered. Appellant was discharged with a diagnosis of headache.
In a treatment note dated September 25, 2015, Dr. Don Michael Thompson, a Boardcertified internist, reported a history of closed head injury and appellant’s continued complaint of
pressure to the base of her skull, difficulty with thought processes, insomnia, and occasional
dizziness, worsened by exertion. Neurological examination demonstrated intact cranial nerves, no
sensory-motor dysfunction, and no dysmetria. Dr. Thompson recommended evaluation by a
neurologist. He also submitted an attending physician’s report (Form CA-20) and a duty status
report (Form CA-17) dated September 25, 2015 indicating that appellant could not work due to a
diagnosed concussion.
In a September 30, 2015 statement, L.B., an employing establishment supervisor, noted
that she went to the incident location, after appellant reported her injury. She related that appellant
was sitting in the postal vehicle when she arrived. L.B. indicated that she called 911 because
appellant felt she would pass out, and that another supervisor, A.F., came to prepare an accident
report.
On October 1, 2015 Dr. Thompson reported that appellant was on daily medication and
continued to experience functional deficits including difficulty with thought processes, occasional

2

dizziness, and insomnia, and a feeling of pressure at the base of her skull. He advised that she
could not return to work.
In an undated statement received by OWCP on November 9, 2015, appellant reported that
she hit her head when she stood up after picking up a piece of dropped mail. She indicated that
she felt sharp pain, her head was bleeding, and she believed she passed out. Appellant called her
husband and L.B., who came and moved her to her vehicle. Emergency responders arrived, and
she was transported to the hospital. Appellant related that she continued to have headaches,
nausea, difficulty with thought processes, and insomnia, and had not returned to work. Appellant’s
husband also submitted a statement describing the event that occurred on September 16, 2015.
In reports dated October 23 and 27, 2015, Dr. Thompson advised that appellant was unable
to work. He diagnosed concussion with loss of consciousness of 30 minutes or less. On a duty
status report dated December 8, 2015, Dr. Thompson advised that appellant could return to
modified duty for six hours daily. On a duty status report dated December 15, 2015, he advised
that she could not work.
On January 8, 2016 appellant filed a claim for compensation (Form CA-7) for the period
November 3 to December 29, 2015. The employing establishment indicated that she had been on
leave without pay (LWOP) status for this period and had returned to work for six hours daily on
December 12, 2015.
By report dated January 14, 2016, Dr. Thompson indicated that since the injury appellant
had been treated with medication, physical rehabilitation, and had undergone diagnostic studies.
He noted that she reported that her concussion symptoms had resolved and that she denied nausea,
insomnia, dizziness, or any additional symptom other than pain at the base of her cervical spine
which had become worse. Dr. Thompson related that appellant had an appointment with a
neurologist on December 13, 2015 and with an orthopedic surgeon on January 4, 2016. He
reported that a cervical spine magnetic resonance imaging (MRI) scan had been performed on
December 14, 2015 and requested that an additional condition of osseous and subluxation stenosis
of intervertebral foramina of cervical region also be accepted, based on the MRI scan findings.3
Dr. Thompson maintained that the September 16, 2015 employment injury aggravated appellant’s
cervical spine causing consequential stenosis.
By development letter dated January 25, 2016, OWCP informed appellant that additional
medical evidence was needed to support her disability claim. Appellant was afforded 30 days to
submit the necessary evidence.
In a February 1, 2016 report, Dr. Thompson indicated that appellant had documented
measurable physical disability which resulted in incapacitation from September 25 through
December 7, 2015. Appellant’s findings included decreased muscle strength, decreased range of
motion, decreased overall function, and signiﬁcant increase of pain. Dr. Thompson opined that
appellant continued to have ongoing physical findings related to progressive degeneration of her
head and neck caused by the employment injury which impacted her work and activities of daily
living. He noted that appellant required the daily use of pain medication, that she was not
3

A copy of a December 14, 2015 cervical spine MRI scan is not found in the record before the Board.

3

improving, and that she could not return to full duty due to the nature and severity of the
September 16, 2015 employment injury. Dr. Thompson recommended orthopedic evaluation. In
a letter dated February 17, 2016, he reiterated his conclusions.
On February 17, 2016 appellant filed a CA-7 claim for the period September 19, 2015 to
January 8, 2016. The employing establishment indicated that appellant had received continuation
of pay for the period September 19 to October 31, 2015. An accompanying time analysis form
(Form CA-7a) indicated that she worked eight hours each day from December 26, 2015 through
January 2, 2016 with the exception of 16 hours LWOP on December 30 and 31, 2015, indicating
that this was “per her doctor.”4
A July 15, 2016 MRI scan of the brain was negative.
By decision dated December 28, 2016, OWCP denied appellant’s claim for disability
compensation for the period September 19, 2015 to January 8, 2016. It found the medical evidence
insufficient to establish that she was disabled due to the accepted condition.
On January 3, 2017 counsel requested a hearing before an OWCP hearing representative.
In a January 4, 2017 report, Dr. Alina Sholar, a Board-certified plastic surgeon and an
associate of Dr. Thompson, noted the history of injury. She indicated that appellant had
documented measurable physical disability which resulted in incapacitation from September 25
through December 8, 2015 and was again taken off work from December 15, 2015 through
January 28, 2016. Dr. Sholar noted appellant’s complaints of ongoing memory loss, headaches,
and lack of balance related to the progressive degeneration of her head that was a result of the
employment injury and reiterated Dr. Thompson’s findings and conclusions.
At the hearing, held on July 11, 2017, it was determined that the dates of claimed disability
were September 19, 2015 to January 8, 2016. Appellant described the employment injury. She
testified that she had not seen a neurologist and had progressively improved over time. Counsel
argued that Dr. Thompson’s reports were sufficient to establish total disability for the period
claimed due to the accepted concussion.
By decision dated September 14, 2017, an OWCP hearing representative found that
appellant failed to provide sufficient medical evidence to support the claimed period of disability
and affirmed the December 28, 2016 decision.5

4

Appellant also noted that she did not work on January 1, 2016, a federal holiday. On March 11, 2016 OWCP
asked that its medical adviser, Dr. Morley Slutsky, Board-certified in occupational medicine, provide an opinion to
determine if the consequential injury of osseous and subluxation stenosis of intervertebral foramina of cervical region
should be accepted as a result of the September 16, 2015 employment injury. In a March 18, 2016 report, Dr. Slutsky
indicated that he had only been furnished a statement of accepted facts and one report by Dr. Thompson. OWCP’s
medical adviser requested that additional medical reports, including diagnostic studies be forwarded. No further
development is found in the case record.
5
The Board notes that the hearing representative indicated that the claimed period of disability was for the period
from September 19, 2015 through January 7, 2016.

4

LEGAL PRECEDENT
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.6 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative, and substantial medical
evidence.7
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 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 employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that the medical evidence of record is insufficient to establish disability
for the period September 19, 2015 through January 8, 2016. The accepted condition is concussion
with loss of consciousness of 30 minutes or less.
The Board initially notes that appellant received continuation of pay for the period
September 19 to October 31, 2015. Section 8118(c) of FECA provides that compensation for
disability does not begin until termination of continuation of pay or the use of annual or sick leave
ends.11 As appellant received continuation of pay for a portion of her claimed disability, the Board
finds that the period of claimed disability would thus be November 1, 2015 through
January 8, 2016.
Regarding the period of claimed disability beginning on November 1, 2015, in his reports
dated February 1 and 17, 2016, Dr. Thompson advised that appellant was totally disabled from
September 25 through December 7, 2015 due to decreased muscle strength, decreased range of
6

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

7

Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

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

11

5 U.S.C. § 8118(c); see L.C., 59 ECAB 569 (2008).

5

motion, decreased overall function, and significant increase of pain. As noted, the accepted
condition is concussion, and Dr. Thompson did not explain how these findings were caused by this
condition other than generally opining that her physical findings were related to progressive
degeneration of her head and neck due to the employment injury. Dr. Thompson expressed no
specific knowledge of appellant’s job duties. He did not specifically address whether appellant
had any employment-related disability beginning November 1, 2015 causally related to her
accepted condition.12 Dr. Thompson did not fully address why appellant required work restrictions
or how these restrictions were attributable to the September 16, 2015 employment injury. The
Board has found that vague medical opinions which do not explain causal relationship are of
diminished probative value.13 In his report dated January 14, 2016, Dr. Thompson indicated that
appellant reported that her concussion symptoms had resolved. While he noted that appellant had
a December 18, 2015 appointment with a neurologist on December 18, 2015, appellant testified
that she had not seen a neurologist, and there is no evidence of record to indicate that she was
examined by a neurologist. Dr. Thompson also indicated that appellant had an appointment with
an orthopedic surgeon on January 4, 2016. Again, there is no evidence that appellant was seen by
an orthopedic surgeon.
In her January 4, 2017 report, Dr. Sholas, who expressed agreement with Dr. Thompson’s
findings and conclusion, reported that appellant had functional deficits in addition to physical
symptomatology that caused her total disability from September 25 through January 8, 2015. The
record, however, does not contain any test results that demonstrate specific functional deficits.
The issue of disability from work can only be resolved by competent medical evidence.14
Whether a claimant’s disability is related to an accepted condition is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.15 A physician’s opinion on causal
relationship between a claimant’s disability and an employment injury is not dispositive simply
because it is rendered by a physician. To be of probative value, the physician must provide
rationale for the opinion reached. Where no such rationale is present, the medical opinion is of
diminished probative value.16 In the absence of sufficient medical evidence, the Board finds that
the medical evidence of record is insufficient to establish that appellant was totally disabled from
work during the claimed period. Neither Dr. Thompson nor Dr. Sholar explained with sufficient
rationale why she could not perform her job duties due to the accepted concussion.26
Thus, contrary to counsel’s assertion on appeal, appellant did not submit sufficient
rationalized medical opinion evidence to establish that she was unable to work for the period
November 1, 2015 through January 8, 2016 due to accepted condition. She, therefore, failed to
12

See K.C., Docket No. 17-0379 (issued November 9, 2017).

13

See A.D., 58 ECAB 149 (2006); Mary E. Marshall, 56 ECAB 420 (2005).

14

R.C., 59 ECAB 546 (2008).

15

See Sandra D. Pruitt, 57 ECAB 126 (2005).

16

Thaddeus J. Spevack, 53 ECAB 474 (2002).

6

establish that the claimed disability was employment related and was thus not entitled to wageloss compensation for this period.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
totally disabled for the period November 1, 2015 through January 8, 2016 causally related to the
accepted concussion with loss of consciousness of 30 minutes or less.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2018
Washington, DC

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

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

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

17

N.R., Docket No. 14-114 (issued April 28, 2014).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 16-1247
Issued: November 21, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 25, 2016 appellant filed a timely appeal from a May 6, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $9,563.93 from October 30, 2015 through
March 5, 2016; and (2) whether OWCP properly found that appellant was at fault in the creation
of the overpayment and therefore not entitled to waiver of the recovery.
On appeal, appellant argues that the amount of overpayment is incorrect and that she was
not at fault in the creation of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 15, 2015 appellant, then a 21-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging neck sprain as a result of a vehicular incident on
April 14, 2015. On June 18, 2015 OWCP accepted her claim for neck sprain, disorder of the
bursae and tendons in the left shoulder region, and sprain of the left elbow and forearm.
Appellant was placed on the periodic rolls for compensation payments. Her first payment
for the dates May 30 through July 25, 2015 in the net amount of $4,258.94 was paid on
July 31, 2015. Thereafter, appellant was paid a net amount of $2,092.11 every 28 days on the
periodic rolls until her last payment on March 5, 2016.
On June 18, 2015 OWCP notified appellant that her claim had been accepted. Appellant
was advised that she was expected to return to work as soon as she was able, and it was her
responsibility to advise her employing establishment once her physician found her capable of
returning to work. She was also advised that once she returned to work she should notify OWCP
immediately and return a payment for a period worked to prevent an overpayment of
compensation. Appellant was also advised that if she received compensation via electronic funds
transfer she should monitor her bank statements carefully, at least every two weeks, and if she
had worked for any portion of the period for which payment was made, she would advise OWCP
immediately so that the overpayment could be collected.
In a record of a telephone conversation dated June 18, 2015, an OWCP representative
noted that appellant had stated that she had been released to work by her physician, but had been
unable to return because there was no work available within her restrictions.
In a form dated September 8, 2015, appellant signed up for direct deposit of her
compensation payments. On July 22, 2015 OWCP acknowledged receipt of this form.
In a workers’ compensation status report dated October 29, 2015, Dr. David G.
Vanderweide, a Board-certified orthopedic surgeon, stated that appellant was able to return to
work without restrictions as of October 29, 2015.
In a record of a telephone conversation dated March 17, 2016, a supervisor spoke to an
OWCP representative and informed her that appellant had returned to work at full duty on
October 30, 2015.
By notice dated March 28, 2016, OWCP advised appellant of its preliminary
determination that an overpayment of compensation in the amount of $9,563.93 occurred from
October 30, 2015 through March 5, 2016, as she returned to work on October 30, 2015 but
continued to receive wage-loss compensation through March 5, 2016. It made the preliminary
finding that appellant was at fault in the creation of the overpayment, as she accepted payments
she knew or should have known to be incorrect. OWCP afforded appellant 30 days to submit
additional evidence and argument and to request a hearing.
On April 4, 2016 appellant contested the overpayment as she believed the overpayment
occurred through no fault of her own, and requested a waiver. She stated that she did not know
she was supposed to report the overpayment, as she thought the reporting was her manager’s
responsibility. Appellant also provided financial information.
2

In an investigative report dated April 6, 2016, the Office of the Inspector General for the
employing establishment provided the results of an investigation into appellant’s overpayment.
During an interview, appellant confirmed she had returned to work for the relevant period and
stated, “I’m not saying I didn’t know it didn’t happen, because I had money to pay my bills.”
By decision dated May 6, 2016, OWCP finalized appellant’s overpayment of
compensation in the amount of $9,563.93 for the period October 30, 2015 through
March 5, 2016. It found that she was at fault in the creation of the overpayment and requested
payment of the full amount within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA2 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.3 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.4
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.5 OWCP regulations provide that compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP correctly determined that appellant received an overpayment
of compensation in the amount of $9,563.93. Appellant was placed on the periodic rolls for
compensation subsequent to July 31, 2015. Her continuing payment every four weeks was a net
amount of $2,092.11. The evidence reflects that appellant returned to work on October 30, 2015.
However, she continued to receive wage-loss compensation between October 30, 2015 and
March 5, 2016. On appeal appellant contests the amount of the overpayment.
The Board finds that OWCP correctly calculated the amount of appellant’s overpayment.
The periodic rolls cycle net payment was $2,092.11. Each periodic rolls cycle consists of 28
days. Two-thousand ninety-two dollars and eleven cents divided by 28, and multiplied by the
number of days between October 30, 2015 and March 5, 2016, 128 days, equals $9,563.93. As
this figure, $9,563.93, is the correct amount of overpayment, OWCP correctly calculated the
amount of appellant’s overpayment. Appellant has not submitted any evidence demonstrating
2

Id.

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

6

See C.V., Docket No. 16-0986 (issued September 1, 2016); 20 C.F.R. § 10.500.

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that she did not receive an overpayment of compensation. As such, the Board finds that OWCP
properly determined that appellant received an overpayment of compensation in the amount of
$9,563.93 for the period October 30, 2015 through March 5, 2016.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against
equity and good conscience.7 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.8
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.9
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.10
ANALYSIS -- ISSUE 2
OWCP applied the third standard in this case, finding that appellant accepted
compensation payments that she knew or should have known were incorrect. Appellant accepted
wage-loss compensation for the period October 30, 2015 through March 5, 2016 after she had
returned to work at full duty.
In cases where a claimant receives compensation through direct deposit, the Board has
held that OWCP must establish that at the time a claimant received the direct deposit in question
that he or she knew or should have known that the payment was incorrect.11 The Board has held
that an employee who receives payments from OWCP in the form of a direct deposit may not be
at fault for the first incorrect deposit into his or her account, since the acceptance of the
overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.12
7

5 U.S.C. § 8129(b).

8

Gregg B. Manston, 45 ECAB 344, 354 (1994).

9

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

10

Id. at § 10.433(b).

11

See C.K., Docket No. 12-746 (issued May 1, 2012).

12

See Tammy Craven, 57 ECAB 689, 692 (2006).

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Because the fault is defined by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that the claimant lacks the
requisite knowledge at the time of the first incorrect payment.13 Whether or not OWCP
determines that an individual is at fault with respect to the creation of an overpayment depends
on the circumstances surrounding the overpayment.14 It is not appropriate, however, to make a
finding that a claimant has accepted an overpayment by direct deposit until such time as a
reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentations such as a bank statement or notification from
OWCP or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.15
The Board finds that appellant was not at fault in the creation of the overpayment for the
period October 30 through November 14, 2015, as the check for this period, deposited on
November 14, 2015, was deposited electronically into her account and this was the first incorrect
payment made to her. There is no documentation or other evidence to demonstrate that appellant
had clear knowledge at the time she received a direct deposit from OWCP that a portion of the
payment was incorrect or that a reasonable period of time passed during which she could have
reviewed bank statements or been informed of the incorrect payment. Accordingly, the Board
finds that OWCP improperly determined that she was at fault in the creation of the portion of the
overpayment from October 30 through November 14, 2015.
The Board finds that OWCP properly determined that appellant was at fault for wage-loss
compensation payments subsequent to this first incorrect electronic deposit on
November 14, 2015. Appellant was advised on March 28, 2015 when her claim was accepted
that she should return to work as soon as her physician released her to work, that she should
notify OWCP immediately of a return to work, that receipt of compensation for a period of work
would create an overpayment of compensation; and that she should check her electronic fund
deposits carefully, at least every two weeks to prevent an overpayment of compensation.
In cases involving a series of incorrect payments, where the requisite knowledge is
established by documentation from OWCP or simply with the passage of time and opportunity
for discovery, the claimant will be at fault for accepting the payments subsequently deposited.16
Thus, by the time of the second payment appellant should have known that she was no longer
entitled to disability compensation after her return to work with no wage loss.17
The Board will set aside the portion of the May 6, 2016 decision finding appellant at fault
for the overpayment for the period October 30 through November 14, 2015, and remand the case
to OWCP to determine whether appellant is entitled to waiver of recovery for the amount paid

13

J.S., Docket No. 12-1707 (issued June 10, 2013).

14

Id., see also K.D., Docket No. 13-451 (issued April 12, 2013).

15

See K.D., id.

16

R.O., Docket No. 16-0186 (issued July 21, 2016).

17

Id.

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for that period. The Board will affirm the remainder of the May 6, 2016 decision finding that
appellant was at fault for payments subsequent to November 14, 2015.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $9,563.93 for the period October 30, 2015 through March 5, 2016. The Board further finds
that appellant was without fault for the period of the overpayment from October 30 through
November 14, 2015. The Board further finds that appellant was at fault for the period of
overpayment from November 14, 2015 through March 5, 2016. The case will be remanded for
consideration of waiver of the recovery of the overpayment from October 30 through
November 14, 2015.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2016 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further action consistent with this decision of the Board.
Issued: November 21, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 11-1538
Issued: March 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 11, 2011 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs (OWCP) dated December 16, 2010, and March 31 and
April 29, 2011. 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 appellant’s actual earnings as an office automation clerk fairly and
reasonably represented her wage-earning capacity.
On appeal she asserts that OWCP used an incorrect pay rate in determining her wageearning capacity.2
1
2

5 U.S.C. §§ 8101-8193.

Appellant referenced a second injury that occurred in September 2008, adjudicated by OWCP under file number
xxxxxx677. The instant case was adjudicated under file number xxxxxx879.

FACTUAL HISTORY
On February 16, 2000 appellant, then a 30-year-old window service technician, filed an
occupational disease claim alleging that her work duties caused pain in the right index finger and
wrist. The claim was initially accepted for right hand and finger strain, and was expanded to
include the conditions of bilateral finger/hand strains, bilateral carpal tunnel syndrome, and
bilateral index finger stenosing tenosynovitis. Dr. Gregory M. Balourdas, a Board-certified
orthopedic surgeon, performed a right carpal tunnel release on September 11, 2002, and a left
carpal tunnel release on March 25, 2003. Appellant returned to modified duty following each
surgical procedure. On August 12, 2003 Dr. Dori J. Neill Cage, a Board-certified orthopedist,
began treating appellant. Appellant accepted a full-time modified sales associate position on
March 4, 2005 with duties of processing accountables and business reply mail, delivering
express mail, accepting passport applications, checking in carriers, and processing nixie mail.
On August 23, 2005 she was granted a schedule award for a five percent loss of use of the right
arm, and a five percent loss of use of the left arm. Dr. Cage continued to submit reports.
In accordance with the National Reassessment Process (NRP), appellant was reassigned
to a different position in August 2008 when she began instruction in new job duties.3 In a
September 9, 2008 report, Dr. Cage advised that appellant had a flare of pain caused by training
in new job duties. She diagnosed recurrent right upper extremity extensor tendinitis and advised
that appellant should return to her previous position. By letter dated September 26, 2008, OWCP
advised appellant to file a new claim regarding the flare-up.4
On November 3, 2008 appellant filed a claim, indicating that she had a recurrence of
disability under the instant claim, xxxxxx879. On November 5, 2008 OWCP accepted
aggravation of other tenosynovitis of hand and wrist, bilateral. On November 14, 2008 the
employing establishment informed OWCP that the modified passport clerk position was the job
withdrawn under the NRP process. In a November 14, 2008 letter to Dr. Cage, OWCP indicated
that appellant had a new injury on September 4, 2008, filed under xxxxxx677, that was accepted
for aggravation of bilateral hand tenosynovitis. Appellant filed a claim for disability
compensation beginning November 26, 2008. The employer indicated that no work was
available because appellant’s modified job had been withdrawn. On December 2, 2008 OWCP
accepted that appellant sustained a recurrence of disability on November 26, 2008 because her
modified position had been withdrawn. Appellant was placed on the periodic compensation
rolls, and was referred for vocational rehabilitation services. Dr. Cage continued to submit
reports. Following vocational testing, appellant began training in office and accounting skills.5
She completed her training in December 2009, and then began an internship and job search. By
report dated February 11, 2010, Dr. Cage noted that appellant had finished her training program
and was looking for a job and had complaints of some stiffness in the morning but could tolerate
her symptoms. On physical examination, appellant had full range of motion of the upper
3

Appellant stopped work on September 5, 2008 due to pain and filed a traumatic injury claim. Id.

4

Id.

5

Appellant was enrolled at both San Diego Mesa College and Grossmont College for intensive training as an
office professional.

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extremities with no significant tenderness to palpation. Dr. Cage diagnosed chronic tendinitis,
stable, bilateral upper extremities.
Appellant accepted a position with the Department of Homeland Security, Immigration
and Customs Enforcement (ICE), beginning on Monday, September 27, 2010, as a GS-4, office
automation clerk, at an annual salary of $39,581.00. Appellant’s former employer informed
OWCP that the current pay rate for appellant’s former position at Level 7, Step D was
$44,951.00.
On October 5, 2010 OWCP reduced appellant’s monetary compensation to reflect her
actual earnings with ICE of $39,581.00 annually or $761.17 per week. It determined that
appellant’s weekly pay rate when disability recurred on November 3, 2008 was $1,032.08, that
the current weekly pay rate for the job and step when injured was $864.44, and that her current
weekly wages were $761.17. OWCP then applied the formula developed in the Albert C.
Shadrick decision,6 that has been codified at section 10.403 of OWCP’s regulations,7 and found
that appellant had a new wage-earning capacity of 88 percent for a loss of wage-earning capacity
of $123.85, which yielded weekly compensation of $92.89 for net compensation each four weeks
of $384.00. On December 16, 2010 OWCP confirmed that the current weekly pay rate for
appellant’s job when injured was $864.44.
By decision dated December 16, 2010, OWCP found that appellant’s employment,
effective September 26, 2010, fairly and reasonably represented her wage-earning capacity and
reduced her compensation in accordance with section 10.403 of its regulations and the Shadrick
formula. On January 2, 2011 appellant requested a review of the written record. She asserted
that the “current pay rate” used in calculating her loss of wage-earning capacity was incorrect.
In a March 31, 2011 decision, an OWCP hearing representative determined that the Shadrick
formula had been properly applied and affirmed the December 16, 2010 decision.
On April 2, 2011 appellant requested reconsideration. She stated that, as she sustained a
new injury on September 4, 2008, adjudicated under file number xxxxxx677, her weekly wage at
the time of the September 2008 injury, or $1,032.00 per week, should be used in Item 2 of the
Shadrick formula as the current pay rate when injured in calculating her wage-earning capacity.
A telephone conference regarding appellant’s pay rate was held on April 27, 2011 between an
OWCP senior claims examiner and the injury compensation specialist supervisor at the
employing establishment. The employing establishment provided a pay schedule effective
August 2010.
In a merit decision dated April 29, 2011, OWCP denied modification of the prior
decisions. It explained that, on the date of injury, November 3, 2008, appellant was at Level 6
Step D, but due to a union agreement effective March 16, 2008, the position was upgraded to a
Level 7 Step D, and this figure was used by OWCP to determine the current pay rate for the job
when injured, $44,951.00 or $864.44 a week.

6

Albert C. Shadrick, 5 ECAB 376 (1953).

7

20 C.F.R. § 10.403.

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LEGAL PRECEDENT
Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by the employee’s actual
earnings if the actual earnings fairly and reasonably represent the employee’s wage-earning
capacity.8 Generally, wages actually earned are the best measure of a wage-earning capacity,
and in the absence of showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such a measure.9 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Albert C.
Shadrick decision,10 has been codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s
wage-earning capacity in terms of percentage by dividing the employee’s earnings by the current
pay rate for the date-of-injury job.11 Its procedures provide that OWCP can make a retroactive
wage-earning capacity determination if the claimant worked in the position for at least 60 days,
the position fairly and reasonably represented his or her wage-earning capacity and the work
stoppage did not occur because of any change in his injury-related condition affecting the ability
to work.12
ANALYSIS
The Board finds that appellant’s actual earnings as an office automation clerk with ICE
represent her wage-earning capacity. After completing a vocational rehabilitation training
program, she accepted the full-time position as a GS-4, office automation clerk, on
September 27, 2010, at an annual salary of $39,581.00. In the latest medical report of record,
dated February 11, 2010, Dr. Cage, an attending orthopedist, noted that appellant had completed
a training program and was looking for a job. She advised that appellant could tolerate her
symptoms, provided physical examination findings of full upper extremity range of motion and
no significant tenderness to palpation, and diagnosed stable, chronic tendinitis, of both upper
extremities. On October 5, 2010 OWCP reduced appellant’s monetary compensation to reflect
her employment with ICE, and on December 16, 2010 OWCP issued a formal loss of wageearning capacity decision, finding that appellant’s employment effective September 26, 2010
fairly and reasonably represented her wage-earning capacity.13
The Board finds that appellant’s actual earnings as an office automation clerk with ICE
fairly and reasonably represent her wage-earning capacity. She began full-time work at this
position on September 27, 2010 and was working in this position on December 16, 2010, the
8

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

9

Lottie M. Williams, 56 ECAB 302 (2005).

10

Albert C. Shadrick, supra note 6.

11

20 C.F.R. § 10.403(c).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity
Chapter 2.814.7(a) (July 1997); Selden H. Swartz, 55 ECAB 272 (2004).
13

Appellant’s first day of work was Monday, September 27, 2010.

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date OWCP issued its wage-earning capacity determination. Appellant thus worked in the
position for more than 60 days, and there is no evidence that the position was seasonal or
temporary and no evidence to show that she was not working eight hours a day.14 There is also
no evidence that the position consisted of make-shift work designed for her particular needs.15
As there is no evidence that appellant’s wages in the clerk position at ICE did not fairly and
reasonable represent her wage-earning capacity, they must be accepted as the best measure of her
wage-earning capacity.16
As appellant’s actual earnings in the position of office automation clerk fairly and
reasonably represent her wage-earning capacity, the Board must determine whether OWCP
properly calculated her wage-earning capacity based on her actual earnings. Appellant asserted
on appeal that OWCP used an incorrect pay rate in determining her wage-earning capacity. She
stated that she sustained a new injury on September 4, 2008 under claim number xxxxxx677 that
was accepted by OWCP, and that due to this injury, she was unable to perform the light-duty job
that was withdrawn. She argued that Item 2 of the Shadrick formula should reflect her weekly
wages on the date of the new injury, or $1,032.08, rather than her wages on the date of the
original injury, February 8, 2000.
The employing establishment indicated that the job withdrawn under the NRP that led to
appellant’s recurrence of disability and resumption of wage-loss compensation was the modified
position she had been performing for a number of years. In a September 9, 2008 report,
Dr. Cage indicated that appellant had a flare of pain caused by training for new job duties and
advised that she should return to her previous, modified position. Thus, the record does not
support appellant’s assertion that she was unable to perform the duties of the modified position
that was withdrawn and led to the November 2008 recurrence of disability and resumption of
wage-loss compensation. Rather, the recurrence of disability occurred because the modified
position appellant began in 2005 was withdrawn under the NRP, and her physician Dr. Cage
clearly indicated on September 9, 2008 that appellant could perform the duties of that position
after the September 4, 2008 injury that occurred when appellant was training for a new position
because she recommended that appellant return to that position.
OWCP obtained pay rate information from appellant’s former employer and new
employer. In applying the Shadrick formula, OWCP properly found that the weekly pay rate
when the disability occurred on November 3, 2008 was $1,032.08, for Item 1. For Item 2,
OWCP properly utilized the current pay rate for the job and step when appellant was injured on
February 8, 2000, or $864.44. OWCP then properly found that appellant’s current weekly wage
in her position with ICE was $761.17 for Item 3. OWCP then properly followed the Shadrick
formula and divided Item 3 by Item 2, yielding an 88 percent wage-earning capacity, Item 4.
Item 4 was then multiplied by Item 1, for an adjusted wage-earning capacity of $908.23, Item 5.
Item 5 was then subtracted from Item 1, yielding a loss in wage-earning capacity of $123.85 per
week, Item 6. OWCP then determined that compensation at the 75 percent augmented rate
14

J.C., 58 ECAB 700 (2007).

15

Id.

16

See Loni J. Cleveland, supra note 8.

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totaled $92.89, Item 7, which was increased by cost-of-living adjustments to $96.00 a week. The
Board finds that OWCP properly applied the Shadrick formula in determining appellant’s loss of
wage-earning capacity.17
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to establish that appellant’s actual
earnings as an office automation clerk fairly and reasonably represented her wage-earning
capacity.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 29 and March 31, 2011 and December 16, 2010 are
affirmed.
Issued: March 26, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

17

Albert C. Shadrick, supra note 6.

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