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

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

Docket No. 13-320
Issued: January 29, 2014

Case Submitted on the Record

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

JURISDICTION
On November 26, 2012 appellant, through counsel, timely appealed from the July 30,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than a 15 percent impairment of her left lower
extremity for which she received a schedule award.
On appeal, appellant’s counsel contends that as appellant provided a new report
indicating that she was entitled to a greater schedule award, OWCP erred in failing to forward
this report to OWCP’s medical adviser or further develop the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the Board’s
prior decision are hereby incorporated by reference.2
On March 9, 2009 appellant filed a claim for a schedule award.
In a report dated December 16, 2008, Dr. Arthur Becan, an orthopedic surgeon,3 listed
appellant’s diagnoses as: (1) status post displaced lateral tibial plateau of the left knee; (2) status
post avulsion fracture of medial tibial spine of the left knee; (3) post-traumatic tricompartmental
osteoarthritis of the left knee; (4) chronic post-traumatic cervical strain and sprain; (5) left upper
extremity radiculitis; and (6) myofascial pain syndrome. He determined that under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (2001) (A.M.A., Guides), she had a 23 percent impairment of the left lower
extremity. OWCP referred the case to its medical adviser, who determined that appellant had a
15 percent impairment under the A.M.A., Guides.
In a decision dated April 8, 2009, OWCP issued a schedule award for a 15 percent
impairment of the left lower extremity, the impairment rating assigned by OWCP’s medical
adviser.
On April 14, 2009 appellant requested a hearing before an OWCP hearing representative,
which was held on July 23, 2009.
By decision dated October 15, 2009, OWCP’s hearing representative found that OWCP’s
medical adviser’s report was not sufficiently rationalized to be considered the weight of the
medical opinion, but that it was sufficient to require referral for a second opinion examination.
Accordingly, he set aside the April 8, 2009 schedule award decision and remanded the case for
further processing.
By letter dated October 27, 2009, counsel stated that he would like to participate in the
selection of an impartial specialist, should such referral become necessary. He stated that the
reason for this request was an attempt to assure that the claimant receives an impartial
examination.
On November 12, 2009 OWCP referred appellant to Dr. Robert Draper, a Board-certified
orthopedic surgeon, for a second opinion. In a December 3, 2009 report, Dr. Draper applied the
sixth edition of the A.M.A., Guides and determined that appellant had a 13 percent impairment
of the left lower extremity. In reaching this conclusion, he applied Table 16-3 of the sixth
2

Docket Nos. 11-1379 and 12-1308 (issued September 26, 2012). OWCP accepted that on November 5, 2007
appellant, then a 58-year-old letter carrier, was hit by a car and sustained a closed fracture of the upper end of her
left tibia as well as traumatic arthropathy of the left lower leg. The Board remanded the case to OWCP for further
consideration and to apply the guidelines of FECA Bulletin No. 09-05 with regards to appellant’s claim for
intermittent periods of disability and loss of wage-earning capacity.
3

The Board cannot confirm that Dr. Becan is Board-certified. Dr. Becan did not treat appellant but evaluated her
for a determination as to her percentage of permanent impairment.

2

edition of the A.M.A., Guides4 and found that based on the Regional Grid -- Lower Extremity
Impairment, the diagnostic criteria was tibial plateau fracture, class 1,with angulation of less than
nine degrees. The default impairment rating pursuant to Table 16-3 was 10 percent for class 1
using grade C. Dr. Draper calculated the grade modifier for Functional History (GMFH) of 2,
grade modifier for Physical Examination (GMPE) of 2 and grade modifier for Clinical Studies
(GMCS) of 2.5 He applied the formula as set forth in the A.M.A., Guides of (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX) = 1+1+1 = 3.6 Utilizing the net adjustment formula,
Dr. Draper selected grade E under class 1, which amounted to a 13 percent impairment of the left
lower extremity. In a December 30, 2009 report, OWCP’s medical adviser, utilizing the same
calculations as Dr. Draper, agreed that appellant was entitled to a 13 percent impairment.
In a January 12, 2010 decision, OWCP denied appellant’s request for an increased
schedule award. It determined that as the previous schedule award was for 15 percent
impairment, the evaluations under the sixth edition of the A.M.A., Guides indicated that she was
not entitled to a greater award.
On January 11, 2010 appellant requested a hearing before an OWCP hearing
representative, which was held on May 18, 2010.
On May 10, 2010 Dr. Becan updated his report of December 16, 2008 to apply the sixth
edition of the A.M.A., Guides. He also found that pursuant to Table 16-3 of the sixth edition of
the A.M.A., Guides, appellant was entitled to a 10 percent impairment for a class 1 left
comminuted fracture tibial plateau (less than nine degrees angulation).7 Dr. Becan found grade
modifiers of 2 for GMFH due to difficulty with personal care, 2 for GMPE for range of motion,
and that GMCS was not applicable.8 Applying the formula set forth in the A.M.A., Guides, he
determined that appellant had a net adjustment of 2, which yielded a left lower extremity
impairment after a net adjustment of 13 percent. Dr. Becan then noted that pursuant to Table 163, appellant had class 1 left collateral ligament laxity of 10 percent, which was adjusted by 2,
which yielded a lower extremity impairment after adjustment of 24 percent.
Three separate decisions were issued by OWCP’s hearing representatives with regard to
this hearing request. In a July 22, 2010 decision, the hearing representative found that as the
weight of the evidence failed to establish that appellant was entitled to a schedule award for
greater than a 15 percent impairment of the left lower extremity, he affirmed the April 8, 2009
decision.9 In an amended decision dated August 10, 2010, he vacated the decision of
January 12, 2010. The hearing representative remanded the case to apply the fifth edition of the
4

A.M.A., Guides 510.

5

Id. at 516, Table 16-6; 517, Table 16-7; 519, Table 16-8.

6

Id. at 521.

7

Id.

8

Supra note 4.

9

The Board notes that, although OWCP’s hearing representative actually noted a 10 percent impairment, this is a
typographical error.

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A.M.A., Guides. However, in a September 16, 2010 decision, the Chief of the Branch of
Hearings and Review vacated the July 22, 2010 decision and modified the August 10, 2010
decision to reflect that there was a conflict in the medical evidence between Drs. Becan and
Draper, instructed OWCP to refer appellant for an impartial medical examination and noted that
a decision should be issued based on the sixth edition of the A.M.A., Guides.
On December 10, 2010 OWCP referred appellant to Dr. Andrew Collier, a Boardcertified orthopedic surgeon, for an impartial medical examination. With regards to this referral,
the record contains a Form ME-M Memorandum of Referral to Specialist, a copy of the ME023
Appointment Schedule Notification, a record of the telephone call to Dr. Collier to schedule the
examination and a screen shot of a bypass of Dr. Rekant for the reason that he treated hands
only. In an opinion dated January 5, 2011, Dr. Collier noted that appellant sustained an acute
lateral tibial plateau fracture on the left-hand side which was minimally displaced. He also noted
that she had a fracture of the tibial spine. Dr. Collier indicated that there were no injuries to the
medial collateral ligament or the anterior cruciate ligament. He stated that at the present time
appellant’s fracture had healed and that she had no angular deformity. Dr. Collier did note some
post-traumatic arthritis of the knee. He calculated an impairment rating utilizing Table 16-3 of
the A.M.A., Guide for regional grid for lower extremity/knee, tibial plateau fracture
nondisplaced with less than 9 percent angulation and abnormal findings which was class 1 with a
default of C or 10 percent. Dr. Collier then found a GMFH of two, and a GMCS for two. For
GMPE, he noted that observed and palpatory finders modifier was two for moderate, stability
modifier was zero, alignment deformity was zero, range of motion was moderate loss of 2,
muscle atrophy was zero and limb length discrepancy was zero. Dr. Collier determined that this
amounted to a GMPE of 4/6 or 2/3. He determined that, after applying the adjustments for grade
modifiers, utilizing Table 16-3, the default of C under class 1 goes from 10 to E or plus 2 which
is a 13 percent permanent impairment of the left lower extremity.
On January 13, 2011 OWCP referred Dr. Collier’s report to OWCP’s medical adviser for
comments, but none were received.
In an April 11, 2011 decision, OWCP found that the opinion of the impartial medical
examiner represented the weight of the medical evidence with respect to the level of permanent
partial and causal relationship, and that accordingly, entitlement to an additional schedule award
was denied.
On April 14, 2011 appellant requested a hearing.
Following a preliminary review, by decision dated July 13, 2011, OWCP’s hearing
representative set aside the April 11, 2011 decision and remanded the case as OWCP failed to
obtain an opinion from its medical adviser evaluating Dr. Collier’s report.
On remand, OWCP referred appellant’s case to its medical adviser. In an August 29,
2011 report, OWCP’s medical adviser indicated that he agreed with Dr. Collier’s report,
indicated that Dr. Collier’s finding of 13 percent impairment of the left lower extremity under the
sixth edition of the A.M.A., Guides was correct, and that as the 13 percent impairment rating for
the left lower extremity impairment did not exceed the prior award of 15 percent left lower
extremity impairment, there is no incremental impairment due at this time.

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In a decision dated August 29, 2011, OWCP determined that appellant was not entitled to
an additional schedule award.
On September 7, 2011 appellant requested a hearing which was held on
November 5, 2011. At the hearing, counsel contended that there was no snapshot of the
Physicians Directory System screen selecting Dr. Collier as an impartial medical examiner. He
also contended that Dr. Collier did not rate any ligament laxity, which she contended was
inappropriate under the A.M.A., Guides and was rated by Dr. Becan. Counsel also argued that as
appellant’s condition was expanded to include left knee post-traumatic osteoarthritis, the x-ray
films are crucial to the proper evaluation of appellant’s impairment. He asked that the record be
left open for a supplemental report by Dr. Becan.
In a December 5, 2011 report, Dr. Becan stated that his examination did reveal a gap with
valgus and varus stress testing which would correspond with collateral ligament laxity. He also
noted a separate issue from comminuted fracture of the tibial plateau. Dr. Becan noted that both
Dr. Collier and he agreed that appellant is entitled to a 13 percent left lower extremity
impairment from the comminuted tibial plateau fracture. However, he opined that due to his
examination findings, appellant did have a collateral ligament laxity which entitled her to an
additional 13 percent impairment for a final combined left lower extremity impairment of 24
percent.
On January 10, 2012 OWCP received a copy of a report by Dr. Becan. This report was
the December 16, 2008 report that was updated to apply the sixth edition of the A.M.A., Guides
on May 7, 2010. A handwritten note on the first page indicated that the report was again updated
on January 3, 2012. In this updated report, Dr. Becan opined that appellant has a 26 percent
impairment to the left lower extremity under the sixth edition of the A.M.A., Guides. He noted,
“x-ray December 8, 2011 = 1 mm.” Applying Table 16-3 of the A.M.A., Guides, Dr. Becan
indicated that the default impairment rating was 30 percent due to class 3 left knee primary knee
joint arthritis.10 He noted grade modifiers as follows: GMFH of 2, GMPE of 2 and determined
that GMCS was not applicable. Applying the formula, Dr. Becan found that appellant’s left
lower extremity impairment after net adjustment was 26 percent.
In a February 28, 2012 decision, OWCP’s hearing representative affirmed the August 25,
2011 decision by OWCP.
On June 1, 2012 counsel requested reconsideration. He contended that it was enclosing a
copy of the addendum report of Dr. Becan, and attached the previously submitted report that was
updated on January 3, 2012 finding that appellant was entitled to a 26 percent impairment of the
left lower extremity.
By letter dated July 10, 2012, OWCP asked counsel to provide a copy of the
December 18, 2011 x-ray report. It also asked that Dr. Becan certify that the December 16, 2008
report submitted by counsel reflects his review of the December 8, 2011 x-ray, noting that the
report indicated that it was updated on May 7, 2010. In response, counsel submitted the same
report by Dr. Becan and no copy of the December 8, 2011 x-ray.
10

Id. at 511, Table 16-3.

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By decision dated July 30, 2012, OWCP denied modification of its decision.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations11 set forth the
number of weeks of compensation payable to employee sustaining permanent impairment from
loss or loss of use, of scheduled members or functions 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.12 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.13 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.14
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.15 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 The sixth
edition of the A.M.A., Guides also provides that range of motion may be selected as an
alternative approach in rating impairment under certain circumstances. A rating that is
calculated using range of motion may not be combined with a diagnosis-based impairment and
stands alone as a rating.17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.18 Where there are opposing medical reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a), to resolve the conflict in the medical evidence.19 In situations where there are
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
11

20 C.F.R. § 10.404.

12

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

13

Ronald R. Kraynak, 53 ECAB 130 (2001).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
15

A.M.A., Guides 494-531.

16

Id. at 521.

17

L.B., Docket No. 12-910 (issued October 5, 2012).

18

Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.808.6(d) (August 2002).

19

K.S., Docket No. 12-43 (issued March 12, 2013).

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specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.20
A physician selected by OWCP to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, OWCP
developed specific procedures for the selection of impartial medical specialist designed to
provide safeguards against any possible appearance that the selected physician’s opinion is
biased or prejudiced. The procedures contemplate that impartial medical specialist will be
selected from Board-certified specialists in the appropriate geographical area on a strict rotating
basis in order to negate any appearance that preferential treatment exits between a particular
physician and OWCP.21 The Federal (FECA) Procedure Manual provides that the selection of
referee physicians (impartial medical specialists) is made though a strict rotational system using
appropriate medical directories. The procedure manual provided that the PDS should be used for
this purpose wherever possible.22 The PDS was a set of stand-alone software programs designed
to support the scheduling of second opinion and referee examinations.23 The PDS database of
physicians was obtained from the American Board of Medical Specialties which contained the
names of physicians who were Board-certified in certain specialties. The Board has held that an
appropriate notation should be made in the directory when a specialist indicates his or her
unwillingness to accept a case or when, for other valid reasons, it is not advisable or practicable
to use his or her services.24
ANALYSIS
OWCP accepted appellant’s claim for a closed fracture of the upper end of her left tibia
as well as traumatic arthropathy of the left lower leg and issued a schedule award for a 15
percent impairment of the left lower extremity under the fifth edition of the A.M.A., Guides.
Appellant contends that she is entitled to a greater award.
The Board finds that OWCP made a proper referral to Dr. Collier in order to resolve the
conflict between Drs. Becan and Draper with regards to the degree of appellant’s disability. The
record contains a Form ME023 appointment schedule notification, a Form ME-M Memorandum
of Referral to Specialist, a record of the telephone call to Dr. Collier to schedule the examination,
and a screen shot of a bypass of Dr. Rekant for the reason that he treated hands only. The Board

20

Anna M. Delaney, 53 ECAB 384 (2002).

21

T.T., Docket No. 12-736 (issued February 4, 2013).

22

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).
The Board notes that as of July 2011, the Medical Management Application in IFEC’s replaced the prior PDS
selection procedure for an impartial medical specialist. The impartial medical specialist in this case was selected
under PDS.
23

Id. at Chapter 3.500.7 (September 1995, May 2003).

24

David Peisner, 39 ECAB 1167 (1988).

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finds that these documents establish that OWCP properly utilized the PDS system to select
Dr. Collier as an impartial medical examiner.25
Dr. Becan did an impairment rating for appellant, and determined that she was entitled to
a 24 percent impairment of her left lower extremity under the sixth edition of the A.M.A.,
Guides. Dr. Draper, the second opinion physician, determined that appellant had a 13 percent
impairment pursuant to the A.M.A., Guides. OWCP referred the case to Dr. Collier, the
impartial medical examiner, to resolve the conflict.
Dr. Collier determined that appellant had a 13 percent impairment. He applied Table
16-3 of the sixth edition of the A.M.A., Guides. Dr. Collier calculated that based on the regional
grid for lower extremity/knee, tibial plateau fracture nondisplaced with less than 9 percent
angulation and abnormal findings, appellant had a class 1 ranking with a default rating of C, or
10 percent.26 He determined the grade modifiers and after applying the formula set forth in the
A.M.A., Guides, determined that appellant had a 13 percent impairment of the left lower
extremity. Dr. Collier’s report was reviewed by OWCP’s medical adviser who determined that
the finding of Dr. Collier that appellant had a 13 percent impairment rating under the A.M.A.,
Guides was correct and that, as this rating was below the 15 percent impairment previously
awarded, OWCP found that appellant was not entitled to a greater award. The Board finds that
he properly applied the A.M.A., Guides, and that his report was properly approved by OWCP’s
medical adviser.
On appeal, counsel contends that Dr. Becan’s January 10, 2012 report should have been
referred to OWCP’s medical adviser. He also contends that this report was sufficient to require
further development of the medical evidence. However, this argument is without merit.
Appellant submitted three reports wherein Dr. Becan utilized his December 16, 2008
examination findings. In the original December 16, 2008 report, Dr. Becan determined that she
had a 23 percent impairment of the left lower extremity under the fifth edition of the A.M.A.,
Guides. In a May 10, 2010 report, he updated the December 16, 2008 report to apply the sixth
edition of the A.M.A., Guides and determined that appellant was entitled to a 24 percent
impairment of his left lower extremity. On January 3, 2012 Dr. Becan again copied his
December 16, 2008 report and updated it to include a new impairment analysis calculation, that
is comingled with his prior analyses and concluded that she had a 26 percent impairment to her
left lower extremity. In a letter to OWCP dated June 1, 2012, appellant, through counsel, argued
that in his January 3, 2012 report, Dr. Becan was able to review x-rays dated December 8, 2011,
and concluded that there was a one millimeter joint space narrowing that justified his opinion for
a higher impairment rating. By letter dated July 10, 2012, OWCP asked counsel to, within 15
days, have Dr. Becan certify that the December 16, 2008 report submitted with the
reconsideration request reflected his review of a December 8, 2011 x-ray and to arrange for
submission of a copy of the December 8, 2011 report. Appellant did not file a timely response to
OWCP’s request. Without a certified report or a copy of the December 8, 2011 x-ray, there is no
basis for the new finding. Accordingly, the January 10, 2012 report is insufficient to require
further development of the evidence.
25

See supra note 19.

26

Supra note 4.

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Therefore, the Board finds that appellant has not met her burden of proof to establish
more than 15 percent permanent impairment to her left lower extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he had more than a 15 percent
impairment of her left lower extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2012 is affirmed.
Issued: January 29, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marshall, WI, Employer
__________________________________________

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

Docket No. 08-796
Issued: August 25, 2008

Case Submitted on the Record

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

JURISDICTION
On January 22, 2008 appellant filed a timely appeal from a January 11, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that he received an
overpayment of compensation and denying waiver. Pursuant to 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 the Office properly found that appellant received an
overpayment of $4,303.95 because he received compensation for total disability after he resigned
from the employing establishment and returned to nonfederal employment; and (2) whether the
Office properly denied waiver of the overpayment.
FACTUAL HISTORY
On November 21, 1988 appellant, then a 36-year-old distribution/window clerk, filed an
occupational disease claim alleging that he sustained lateral epicondylitis due to factors of his
federal employment. The Office accepted his claim for right lateral epicondylitis. Appellant

experienced recurrences of disability on April 11 and August 1, 1989. He stopped work on
September 21, 1989 and did not return. On January 10, 1990 the Office placed appellant on the
periodic rolls.
By letter dated February 16, 1990, appellant informed the Office that he had resigned
from the employing establishment effective January 12, 1990. He noted that he received a
compensation check for the period January 14 to February 10, 1990. Appellant asked his claims
examiner whether he was entitled to receive the compensation payment and asked whether he
should return the payment. On February 28, 1990, the Office, in response to his February 16,
1990 letter, informed him that he could continue to receive and cash compensation payments for
disability as long as he had a work-related condition.
On July 30, 1990 the Office noted that appellant began working in nonfederal
employment beginning January 29, 1990. By letter dated December 26, 1991, the employing
establishment indicated that he had resigned from the employing establishment on January 12,
1990 but continued to receive compensation checks until July 28, 1990. The record establishes
that the Office paid appellant compensation from January 14 to July 28, 1990.
On July 18, 2006 the Office notified appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $4,303.95 for the period
January 29 to July 28, 1990 because he resigned from the employing establishment on
January 12, 1990, began working in nonfederal employment around January 29, 1990 but
continued to receive compensation for total disability until July 28, 1990. It found that he
received $686.36 in gross compensation for the period January 14 through February 10, 1990
and $4,118.16 in gross compensation for the period February 11 through July 28, 1990. The
Office calculated the amount it owed appellant for the period January 14 to 28, 1990 based on his
pay rate in effect on April 11, 1989, the date he sustained his initial recurrence of disability. It
determined that he was entitled to $500.57 for the period January 14 to 28, 2007 and received
$686.36 for the period January 14 through February 10, 1990. The Office subtracted $500.57
from $686.36 to find an overpayment of $185.79. It added the overpayment for the period
January 14 through February 10, 1990 of $185.79 to the overpayment for the period for
February 11 through July 28, 1990 of $4,118.16 to find a total overpayment of $4,303.95. The
Office further advised appellant of its preliminary determination that he was not at fault in the
creation of the overpayment. It requested that he complete the enclosed overpayment recovery
questionnaire and submit supporting financial documents. Additionally, the Office notified
appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence or a prerecoupment hearing.
On July 27, 2006 appellant telephoned an Office claims examiner and indicated that he
had informed the Office by letter dated February 16, 1990 that he continued to receive
compensation even though he had resumed work. He received a February 28, 1990 reply from
the Office advising him that he was entitled to the checks because he still had a work-related
condition. The claims examiner acknowledged that both February 1990 letters were in the case
record and that the information provided by the Office on February 28, 1990 was not correct.
On September 2, 2006 appellant requested a decision based on the written evidence. He
asserted that he was without fault in creating the overpayment as he relied upon information

2

provided by the Office in its February 28, 1990 correspondence. Appellant completed the
overpayment recovery questionnaire and submitted supporting financial documents.
On December 10, 2007 the Office held a telephone conference to verify and update
appellant’s financial information. Appellant provided his income and described in detail his
expenses. He received $7,757.64 in income and had monthly expenses of $6,688.00. Appellant
also paid $355.00 monthly on credit card balances.
By decision dated January 11, 2008, the Office finalized its finding that appellant
received an overpayment of compensation in the amount of $4,303.95 for the period
January 29 to July 28, 1990 and that he was not at fault in creating the overpayment.1 The Office
noted that he provided an overpayment questionnaire on September 2, 2006 and updated
financial information on December 10, 2007. It stated:
“The information provided was insufficient to justify waiving recovery of the
overpayment.
“It has been determination that you were found without fault in the creation of the
overpayment however you should have been reasonably aware that you were not
entitled to the continued total disability payment(s) for time loss for all work
received by you after you resigned from federal employment and began other
employment elsewhere.
“You have not provided justification for this Office to waive recovery of the
overpayment.” (Emphasis in the original.)
The Office determined that he should forward $120.00 per month to the Office to repay
the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act2 defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.3 The Office’s regulations state in pertinent part:
“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.”4
1

The Office initially finalized the overpayment determination on January 10, 2008. It found however that the
January 10, 2008 decision did not accurately reflect the interest due on the debt and reissued a decision on
January 11, 2008.
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8116(a).

4

20 C.F.R. § 10.500.

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained right lateral epicondylitis due to factors of
his federal employment. He experienced intermittent periods of disability until September 21,
1989, when he stopped work and did not return. The Office paid him compensation for total
disability. Appellant resigned from the employing establishment on January 12, 1990 and began
working in nonfederal employment around January 29, 1990. He does not dispute that he
received an overpayment of compensation. The Office continued to pay him compensation for
total disability until July 28, 1990. As appellant received compensation for total disability after
he resigned from the employing establishment and returned to work with a nonfederal employer,
he received an overpayment of compensation.5
The Office calculated the amount of the overpayment by subtracting $500.57, the amount
it owed appellant for the period January 14 through 28, 1990 based on his recurrent pay rate,
from the amount that it paid him from January 14 through February 10, 1990, $686.36, to find an
overpayment of $185.79. It added the $185.79 to $4,118.16, the amount that it paid him for the
period February 11 through July 28, 1990, which yielded $4,303.95. Appellant does not
challenge the amount of the overpayment. The Office determined that he received an
overpayment of $4,303.95 and the Board finds that this correctly represents the amount of the
overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”6
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. The Office must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of the Act or would be against equity and
good conscience. 6
Section 10.436 of the implementing federal regulations7 provides that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to “defeat the purpose of the Act.”
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on

5

Id.

6

5 U.S.C. § 8129.

4

such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.7
5 U.S.C. § 8124(a) provides: “The [Office] shall determine and make a finding of facts
and make an award for or against payment of compensation.” The Office’s regulations provide
that an Office decision “shall contain findings of fact and a statement of reasons.”8 The Office
decision should contain a discussion of the issues, requirements for entitlement, a background
framework so that the reader can understand the issues at hand, a discussion of the relevant
evidence, a basis for the decision and a conclusion.9 Office procedures further specifies that a
final decision must provide clear reasoning which allows the claimant to “understand the precise
defect of the claim and the kind of evidence which would overcome it.”10 Thus, a final decision
must include findings of fact and a description of the basis for the findings so that the parties of
interest will have a clear understanding of the reasoning behind the decision.11
ANALYSIS -- ISSUE 2
The Office made a preliminary determination that appellant was without fault in creating
the overpayment. Appellant submitted detailed information regarding his income and expenses
as well as financial documents supporting his request for waiver. The Office held a telephone
conference on December 10, 2007 and obtained additional financial information. In its
January 11, 2008 decision finalizing the overpayment of compensation and denying waiver, the
Office concluded, without explanation, that the information obtained through the telephone
conference was not sufficient to establish waiver. The Office decision did not discuss
appellant’s income and expenses or any of the evidence submitted by him in support of his
request for waiver. It is required to make findings of fact and a statement of reasons regarding
the material facts of the case.12 The Office’s finding in its January 11, 2008 decision is not
sufficiently detailed so that appellant or the Board can understand the reasoning behind the
denial of his request for waiver.13
The Office noted that, while it had determined that appellant was without fault, he should
have been aware that he could not receive disability compensation after he resigned and began
working for another employer. This is not the standard for evaluating whether appellant is
entitled to waiver when he is without fault in creating the overpayment. If the Office wants to
change the fault finding, it must reissue a preliminary determination finding that the claimant is

7

20 C.F.R. § 10.436.

8

Id. at § 10.126.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (March 1997).

10

Id.

11

Paul M. Colosi, 56 ECAB 294 (2005).

12

20 C.F.R. § 10.126; Beverly Dukes, 46 ECAB 1014 (1995).

13

See Paul M. Colosi, supra note 11.

5

with fault prior to finalizing a fault finding.14 The case is, therefore, remanded to the Office for
an appropriate determination with adequate findings and reasoning regarding whether appellant
has established waiver of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of $4,303.95 because he
received compensation for total disability after he resigned from the employing establishment.
The Board further finds that the case is not in posture for decision regarding whether the Office
properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 11, 2008 is affirmed in part and set aside in part and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: August 25, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

See 20 C.F.R. §§ 10.431(a), (b), (d); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(a)(1) (May 2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

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

Docket No. 20-0447
Issued: September 9, 2021

Case Submitted on the Record

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

JURISDICTION
On December 22, 2019 appellant filed a timely appeal from a September 17, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3

Appellant also listed the Board’s August 15, 2019 order, which remanded the case to OWCP, as a decision on
appeal. To the extent that her request on the AB-1 form can be considered a petition for reconsideration of the Board’s
order under Docket No. 18-1742, the Board notes that it will be addressed separately under that docket number.
1

2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the September 17, 2019 OWCP decision, appellant submitted additional evidence
on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
period May 31 through June 22, 2016 causally related to her accepted February 13, 2014
employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances set forth in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On February 15, 2014 appellant, then a 40-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that she sustained head, neck, back, left hip, and right knee
injuries when she was involved in a motor vehicle accident while delivering mail on February 13,
2014 in the performance of duty. She stopped work on the date of injury. OWCP initially accepted
the claim for a head contusion. By decisions dated July 29 and August 7, 2015, it expanded the
acceptance of the claim to include contusions of the face, scalp, and neck, as well as right lateral
collateral knee ligament sprain, hip and thigh sprain, and lumbar sprain. The record reflects that
OWCP paid appellant wage-loss compensation on the supplemental rolls for the period
February 14 to May 16, 2014.
On June 22, 2016 appellant filed a claim for compensation (Form CA-7) for leave without
pay during the period May 31 to June 22, 2016.
In a development letter dated June 27, 2016, OWCP advised appellant that additional
medical evidence was necessary to establish disability during the period claimed. It afforded
appellant 30 days to submit the necessary evidence. No response was received.
By decision dated August 26, 2016, OWCP denied appellant’s wage-loss compensation
claim for disability for the period May 31 to June 22, 2016. It found that the evidence of record
was insufficient to establish that she was totally disabled from work during the claimed period due
to her accepted February 13, 2014 employment injury.
Following the August 26, 2016 decision, OWCP received requests for authorization for
physical therapy dated March 10, April 9, June 8, and August 17, 2016, and physical therapy
reports covering the period February 11 through October 4, 2016.
In an August 17, 2016 report, Dr. Michael Winklemann, a Board-certified physiatrist,
related that appellant was seen for a refill of her prescriptions and reported that she was doing fair
without any significant new problems. Appellant reported a recurrence of left-sided greater tender
bursitis.

4

Order Remanding Case, Docket No. 18-1742 (issued August 15, 2019); Docket No. 17-1497 (issued March 19,
2019); Docket No. 17-1160 (issued December 19, 2018); Docket No. 17-0875 (issued December 13, 2018); Docket
No. 16-1838 (issued October 17, 2017), petition for recon. denied, Docket No. 16-1838 (issued April 9, 2018).

2

In a report and office notes dated October 13, 2016, Dr. Samuel J. Chmell, a Boardcertified orthopedic surgeon, detailed appellant’s February 13, 2014 employment injury and
medical histories. He provided physical examination findings. Dr. Chmell diagnosed L4-5 and
L5-S1 disc protrusions with facet arthropathy and radiculopathy, right torn posterior medial horn
meniscus with coccydynia and chondromalacia, and left hip greater trochanteric bursitis with
sprain and aggravated osteoarthritis, which he attributed to the accepted February 13, 2014
employment injury. In the October 13, 2016 narrative report, he also related that appellant was
“presently fully incapacitated for duty and disabled for any type of work.”
In a December 8, 2016 report, Dr. Chmell noted that appellant was evaluated on
October 13, 2016 for multiple injuries sustained as the result of a February 13, 2014 employmentrelated motor vehicle accident. He concluded that, as a result of the employment injury, appellant
sustained a lumbar sprain, right torn medial meniscus, left traumatic arthritis, L4-5 and L5-S1 disc
herniations with radiculopathy and coccydynia. Dr. Chmell opined that appellant was currently
totally disabled from work due to her employment injuries and required further medical treatment
for her work injuries.
A March 22, 2017 report from Dr. Winklemann noted examination findings, medication,
and treatment provided.
OWCP received requests for authorization for physical therapy dated August 17, 2016,
April 10 and 11, May 2 and 3, July 12, and August 30, 2017 and physical therapy notes covering
the period February 11, 2016 through August 30, 2017.
In a July 3, 2017 attending physician’s report (Form CA-20), Dr. Winklemann diagnosed
lumbar spondylosis, which he attributed to the accepted February 13, 2014 employment injury.
He left the sections blank, which related to the period of disability.
Appellant appealed to the Board on September 16, 2016. By decision dated October 17,
2017,5 the Board affirmed OWCP’s August 26, 2016 decision. Following the Board’s October 17,
2017 decision, OWCP received the following evidence.
A March 22, 2017 prescription for physical therapy, an April 2, 2018 request for
authorization for physical therapy, and physical therapy reports covering the period June 13 to
August 15, 2017.
In a letter dated October 18, 2017, appellant requested wage-loss compensation for the
period May 17, 2014 through May 31, 2016 and reconsideration of the decisions denying her
claims for wage-loss compensation.
Appellant, in an October 21, 2017 letter, requested a formal decision on why she was not
placed on the daily, short-term or periodic rolls for her temporary disability as she had received
benefits which exceeded 60 days.

5

Docket No. 16-1838 id.

3

In an October 25, 2017 letter, appellant requested a formal decision on why OWCP did not
pay wage-loss compensation on and after May 16, 2014.
Appellant, in letters dated February 9, March 12, and July 24, 2018, requested
reinstatement of her continuation of pay (COP) or a formal decision denying her entitlement to
COP.
On April 17, 2018 appellant resubmitted her January 8, 2014 reconsideration request.
On July 23, 2018 appellant requested reconsideration of the August 26, 2016 decision
denying her claim for wage-loss compensation for the period May 31 to June 22, 2016. She
asserted that OWCP improperly shifted the burden of proof as it was OWCP’s burden to prove she
was no longer disabled due to her accepted February 13, 2014 employment injury.
In an August 17, 2018 letter, appellant asserted that it was OWCP’s burden of proof to
establish that she no longer had any disability due to her accepted employment injuries. As OWCP
failed to meet its burden of proof, she asserted that she was entitled to wage-loss compensation for
the period May 16, 2014 through August 26, 2016. Appellant requested a formal decision on her
April 17, 2018 reconsideration request.
By decision dated August 29, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On September 2, 2018 appellant again wrote to OWCP and argued that she had established
disability from May 16, 2014 through August 26, 2016 and that OWCP should not have stopped
payment of wage-loss compensation. By letter dated September 9, 2018, she requested a decision
regarding the termination of her compensation benefits and argued that OWCP had effectively
reduced her entitlement to compensation to zero. OWCP received multiple letters from appellant
dated September 10, 12, and 17, October 3 and 21, November 3 and December 7, 2018, January 28
and June 15, 2019 in which she continued to allege that OWCP had improperly denied her claim
for wage-loss compensation.
On September 20, 2018 appellant filed an appeal with the Board. By order dated
August 15, 2019,6 the Board set aside the August 29, 2018 OWCP decision, finding that appellant
had filed a timely request for reconsideration. The Board remanded the case for application of the
standard for reviewing timely requests for reconsideration.
By decision dated September 17, 2019, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
6

Supra note 4.

7
M.W., Docket No. 20-0881 (issued January 13 2021); M.C., Docket No. 18-0919 (issued October 18, 2018); B.K.,
Docket No. 18-0386 (issued September 14, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).

4

compensation is claimed is causally related to the employment injury.8 For each period of
disability claimed, the employee has the burden of establishing that she was disabled for work as
a result of the accepted employment injury. 9 Whether a particular injury causes an employee to
become disabled for work and the duration of that disability, are medical issues that must be proved
by a preponderance of probative and reliable medical opinion evidence. 10
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury. 11 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.12 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period May 31 through June 22, 2016 causally related to her accepted February 13, 2014
employment injury.
Preliminarily, the Board notes that findings made in prior Board decisions are res judicata
absent any further review by OWCP under section 8128 of FECA. 14 It is therefore unnecessary
for the Board to consider the evidence appellant submitted prior to the issuance of OWCP ’s
August 26, 2016 decision because the Board considered that evidence in its October 17, 2017
decision.15
Following the August 26, 2016 OWCP decision, appellant submitted physical therapy
reports covering the period February 11, 2016 to August 15, 2017. The Board notes that certain
healthcare providers such as physician assistants, nurse practitioners, physical therapists, and
social workers are not considered “physician[s]” as defined under FECA. Consequently, their
8

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
9

See C.E., Docket No. 19-1617 (issued June 3, 2020); see also David H. Goss, 32 ECAB 24 (1980).

10

20 C.F.R. § 10.5(f); see W.C., Docket No. 19-1740 (issued June 4, 2020); Fereidoon Kharabi, 52 ECAB 291
(2001); Edward H. Horton, 41 ECAB 301 (1989).
11

20 C.F.R. § 10.5(f); see J.M., Docket No. 18-0763 (issued April 29, 2020); S.M., 58 ECAB 166 (2006); Bobbie F.
Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003).
12

D.S., supra note 8; Roberta L. Kaaumoana, 54 ECAB 150 (2002).

13

D.S., id.; Merle J. Marceau, 53 ECAB 197 (2001).

14

J.T., Docket No. 18-1757 (issued April 19, 2019); S.S., Docket No. 17-1106 (issued June 5, 2018); H.G., Docket
No. 16-1191 (issued November 25, 2016).
15

Supra note 5.

5

medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.16 Thus, this evidence is insufficient to support appellant’s entitlement to wage-loss
compensation for the period May 31 through June 22, 2016.
Dr. Winklemann, in reports dated August 16, 2016, and March 22 and July 3, 2017,
provided examination findings, treatment provided, and diagnosed lumbar spondylosis, which he
attributed to the accepted February 13, 2014 employment injury. However, he did not address the
claimed disability. The Board has held that medical evidence that does not provide an opinion as
to whether a period of disability is due to an accepted employment-related condition is insufficient
to meet a claimant’s burden of proof.17 Thus, the Board finds that Dr. Winklemann’s reports are
insufficient to establish appellant’s claim for wage-loss compensation for the period May 31
through June 22, 2016.
Appellant also submitted reports dated October 13 and December 8, 2016 from
Dr. Chmell, who Dr. Chmell diagnosed lumbar sprain, right torn medial meniscus, left traumatic
arthritis, L4-5 and L5-S1 disc herniations with radiculopathy and coccydynia, which he attributed
to the accepted February 13, 2014 employment injury. He did not discuss any period of disability
in his October 13, 2016 office notes. In his October 13, 2016 narrative report, he related that
appellant was “presently” totally disabled from work. Dr. Chmell did not address the relevant time
period of May 31 through June 22, 2016. The Board will not require OWCP to pay compensation
for disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed.18 To do so, would essentially allow an employee to self-certify
their disability and entitlement to compensation. 19 Dr. Chmell’s December 8, 2016 report is also
insufficient to establish appellant’s claim for disability during the period in question. While, he
indicated that appellant was totally disabled from work, he did not address the specific period of
disability claimed.20 Therefore, this report does not establish disability for work during the
claimed period. Appellant has not submitted rationalized medical opinion evidence establishing
that she was disabled from work for the period May 31 through June 22, 2016 causally related to
her accepted February 13, 2014 employment injury. Thus, she has not met her burden of proof.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3(a)(1) (January 2013). See F.H., supra note 8; J.L., Docket No. 17-1207 (issued December 8, 2017)
(a physical therapist is not considered a physician under FECA); see also K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006).
16

17

R.J., Docket No. 19-0179 (issued May 26, 2020); M.A., Docket No. 19-1119 (issued November 25,
2019); S.I., Docket No. 18-1582 (issued June 20, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
18

Supra note 10.

19

Id.

20
L.F., Docket No. 19-0024 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019); see also
Jaja K. Asaramo, 55 ECAB 200 (2004).

6

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 total disability
for the period May 31 through June 22, 2016 causally related to her accepted February 13, 2014
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.T., Appellant
and
U.S. POSTAL SERVICE, BERGEN SOUTH
STATION, Jersey City, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1012
Issued: July 24, 2018

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 April 10, 2017 appellant, through counsel, filed a timely appeal from a December 14,
2016 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to expand the acceptance of
her claim to include additional left knee conditions causally related to a December 23, 2014
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.

employment injury; (2) whether appellant met her burden of proof to establish disability for the
period February 7 to August 7, 2015, causally related to the accepted employment injury; and,
(3) whether OWCP abused its discretion by denying appellant authorization for left knee surgery.
On appeal counsel asserts that the medical evidence of record establishes entitlement to
disability compensation and the need for left knee surgery.
FACTUAL HISTORY
On February 26, 2015 appellant, then a 32-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 23, 2014 she tripped on wet steps in the rain and
hit her left knee while in the performance of duty. In an undated statement, she described the
injury and noted that she missed work intermittently between December 23, 2014 and February 25,
2015 as she continued to have left knee pain and was still limping. Appellant related that, when
she reported for work on February 26, 2015, a manager sent her home, gave her a claim form, and
told her that she could not return to work until cleared for full duty by her physician.
In a February 11, 2015 report, Dr. Howard S. Levine, an attending osteopath, advised that
appellant could not work for two weeks due to a bruised bone in her left knee, advising that she
was unable to climb stairs, and was limited in walking and standing. He prescribed physical
therapy. On March 23, 2015 Dr. Levine noted that he had seen appellant beginning February 4,
2015 for complaints of severe left knee pain. He related that a magnetic resonance imaging (MRI)
scan of the left knee showed a bone bruise.3 In an attending physician’s report (Form CA-20)
dated March 26, 2015, Dr. Levine diagnosed a left knee bone bruise, opined that it was
employment related, and advised that appellant could only perform sedentary duty. He referred
her to an orthopedic surgeon.
On April 15, 2015 OWCP accepted contusion of the left knee. Appellant filed claims for
compensation (Form CA-7) for the periods February 7 to July 10, 2015 and July 11 to
August 7, 2015.
Appellant thereafter submitted an unsigned disability slip from Dr. Levine’s office
advising that she could not perform her job duties and was excused from work from February 26,
2015, pending outcome of physical therapy and orthopedic referral. In reports dated May 20 and
July 8, 2015, Dr. Levine advised that she had been examined that day and was unable to perform
job duties.
On March 5, 2015 Dr. Jeffrey F. Augustin, a Board-certified orthopedic surgeon, advised
that appellant was seen in his office that day. In a treatment note dated April 2, 2015, he noted
tenderness on left knee examination. Dr. Augustin advised that appellant could not return to work.
On June 25, 2015 he advised that left knee x-ray demonstrated mild lateral tilt of the patella. On
July 23, 2015 Dr. Augustin reported that appellant was still complaining of left knee pain. He

3

One page of a February 6, 2016 left knee MRI scan demonstrated intact anterior and posterior cruciate ligaments,
intact medial and lateral menisci, intact medial and lateral collateral ligaments, and intact quadriceps and patellar
tendons.

2

found lateral peripatellar tenderness to palpation and recommended left knee arthroscopic lateral
retinacular release.
By development letter dated August 17, 2015, OWCP informed appellant of the evidence
needed to support her claims for disability from February 7 through August 7, 2015. Appellant
was allotted 30 days to provide the necessary information.
In an undated statement, appellant reiterated that she was told by a manager on
February 26, 2015 that she could not return to work until she was fit for full duty.
Dr. Augustin requested authorization for left knee surgery on September 9, 2015. In
correspondence that day, OWCP informed appellant that the medical evidence submitted was not
sufficient to establish that the requested procedure was medically necessary or causally related to
the accepted condition. It informed her that, if her physician believed a newly diagnosed condition
was caused by the December 23, 2014 employment injury, the physician should submit a detailed
narrative report explaining why the condition was caused or aggravated by the employment injury.
OWCP allotted appellant 30 days to provide the medical report.
By decision dated September 17, 2015, OWCP denied appellant’s claim for disability from
February 7 through August 7, 2015. It found the medical evidence insufficient to establish that
the claimed disability was due to the accepted employment injury.
Appellant thereafter submitted a complete copy of the February 6, 2015 left knee MRI
scan. This revealed a small bone bruise in the medial femoral condyles adjacent to the articular
surface. In a March 5, 2015 treatment note, Dr. Augustin noted that appellant was referred to him
for left knee pain. He reported left knee findings of some tenderness along the medial femoral
condyle with full extension and flexion, stable varus and valgus stress, and a negative Lachman’s
sign. Dr. Augustin described MRI scan findings of what appeared to be a bone contusion of the
medial femoral condyle with no obvious ligament tears and intact menisci. He diagnosed left knee
contusion. On September 29, 2015 Dr. Augustin advised that appellant had been under his care
since March 2015 for a left knee injury, with six months of failed nonsurgical management
including bracing, cortisone injections, physical therapy, and oral nonsteroidal anti-inflammatory
medication. He noted her continued complaint of left knee pain when last seen on September 28,
2015 and advised that, due to failed nonsurgical management, it was necessary to proceed with
left knee arthroscopy for lateral retinacular release.
By decision dated October 26, 2015, OWCP denied appellant’s request for authorization
of left knee surgery, finding the medical evidence submitted of insufficient rationale to authorize
the requested procedure.
On March 14, 2016 appellant, through counsel, requested reconsideration of the
September 17, 2015 decision denying disability compensation. In a March 3, 2016 statement, she
related that a manager told her not to return to work until she was cleared by a physician for full
duty.
On August 12, 2016 counsel requested reconsideration of the October 26, 2015 decision
denying authorization for surgery. He also requested that the acceptance of the claim be expanded

3

to include lateral tilt of left patella, chondromalacia of the patella of the left knee, and articular
surface damage of the left knee.
Appellant submitted additional evidence on March 14, 2016. In a September 2, 2015
report, Dr. Levine described the employment injury and noted that he began treating her on
February 4, 2015 for left knee pain. He described the MRI scan findings and noted that appellant
was referred to Dr. Augustin, who recommended left knee surgery. Dr. Levine indicated that
further testing showed that the December 2014 fall caused her left knee cap to become dislocated
which required surgery for realignment. He concluded that, due to the employment-related
condition, appellant was disabled until surgery and postsurgery recovery were completed and,
pending the surgical outcome, she should then be able to return to full duty.4
Appellant also submitted reports from Dr. Robin R. Innella, a Board-certified osteopath
specializing in orthopedic surgery, who began treating appellant on December 9, 2015. Dr. Innella
noted a history that appellant hurt her left knee at work in December 2014 when she slipped on a
step while delivering mail in the rain. She described appellant’s medical care to date and
appellant’s complaints of frequent buckling of the knee and difficulty walking, sitting, and
ambulating on stairs. Dr. Innella reported positive left knee findings of periarticular swelling and
medial and lateral joint line tenderness. She diagnosed left knee chondromalacia patella and
contusion. Dr. Innella opined that appellant most likely sustained an articular surface injury and
recommended arthroscopy. She advised that appellant could work light duty only. Dr. Innella
continued to submit monthly treatment notes in describing appellant’s continued left knee
complaints with consistent examination findings. She reiterated her diagnoses, opining that, with
a reasonable degree of medical probability, appellant’s knee injuries were causally related to the
December 23, 2014 employment injury. Dr. Innella advised that appellant was refractory to
conservative care. She continued to advise that appellant could perform light duty and
recommended arthroscopic surgery.
On February 15, 2016 Dr. Innella requested authorization for left knee surgery. In reports
dated March 9 and April 6, 2016, she provided specific restrictions to appellant’s physical activity.
On April 11, 2016 Dr. Innella additionally diagnosed contusion of left knee with articular surface
injury of patella medial femoral condyle and post-traumatic synovitis. On July 10, 2016 she
advised that appellant’s left knee condition caused her to be unable to work from the time of injury
until December 2015, at which time she recommended that appellant could return to modified
duty.
In correspondence dated August 12, 2016, appellant reiterated that on February 26, 2015 a
manager told her she could not work until she was cleared for full duty. She described her medical
management, noting that both Dr. Augustin and Dr. Innella recommended surgery. Appellant
maintained that, beginning in March 2016, she had contacted the employing establishment
requesting light duty, but had not received a response.
On November 9, 2016 Dr. Innella reported that appellant had continued complaints of
constant left knee pain, and noted that she previously had physical therapy and injections without
4
OWCP referenced a September 2, 2015 report in its September 17, 2015 decision. The report was not found in
the case record at that time.

4

improvement. She provided physical examination findings and advised that appellant’s condition
was essentially unchanged, she could perform light duty, and was awaiting approval for surgery.
In a merit decision dated December 14, 2017, OWCP denied modification of the
September 17 and October 26, 2015 decisions. It found the medical evidence insufficient to
establish “any other medical conditions” causally related to the accepted employment injury and
any claimed employment-related disability. Additionally, OWCP found that, as the medical
evidence was insufficient to establish the necessity for left knee arthroscopic surgery, it was not
authorized.5
LEGAL PRECEDENT -- ISSUE 1
An employee has the burden of proof to establish that any specific condition for which
compensation is claimed is causally related to the employment injury.6 Causal relationship is a
medical issue, and the medical evidence required to establish a causal relationship is rationalized
medical evidence.7 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.8 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.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that additional
left knee conditions were caused or aggravated by, or were a consequence of the accepted
December 23, 2014 employment injury. OWCP accepted contusion of the left knee caused by the
December 23, 2014 employment injury.
The opinion of a physician supporting causal relationship must be based on a complete
factual and medical background, supported by affirmative evidence, must address the specific
factual and medical evidence of record, and must provide medical rationale explaining the nature
of the relationship between the diagnosed condition and the established incident or factor of
employment.10 No physician did so in this case.

5

Appellant continued to submit Form CA-7, claims for compensation, for dates through November 11, 2016. By
letter dated December 14, 2016, it advised her of the evidence needed to establish these claims.
6

Kenneth R. Love, 50 ECAB 276 (1999).

7

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

8

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

9

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

10

Robert Broome, 55 ECAB 339 (2004).

5

Diagnostic studies of the left knee did not provide a cause of any diagnosed conditions and
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.11
The medical reports most contemporaneous with the December 23, 2014 employment
injury were those of Dr. Levine who first saw appellant on February 11, 2015 and diagnosed a
bone bruise. While he continued to submit reports in which he noted severe left knee pain and
advised that appellant’s condition was employment related, at no time did he mention the
December 23, 2014 employment injury or provide an opinion of how this injury caused any other
left knee condition, including the bone bruise he diagnosed. Dr. Levine’s reports are, therefore, of
insufficient probative value to establish causal relationship.12
Likewise Dr. Augustin, who first saw appellant on March 2, 2015, did not relate any
diagnosed condition to the December 23, 2014 employment injury. On March 5, 2015 he noted
tenderness on knee examination and diagnosed left knee contusion, the accepted condition. On
June 25, 2015 Dr. Augustin noted that a left knee x-ray demonstrated a mild lateral title to the
patella and recommended left knee arthroscopic surgery on July 23, 2015.
Dr. Innella began treating appellant on December 9, 2015. She noted a history that
appellant hurt her left knee at work in December 2014 when she slipped on a step while delivering
mail in the rain. Dr. Innella described appellant’s medical care to date, her complaints of frequent
buckling of the knee and difficulty walking, sitting, and ambulating on stairs, and reported positive
left knee findings of periarticular swelling and medial and lateral joint line tenderness. She
diagnosed left knee chondromalacia patella and contusion and opined that appellant most likely
sustained an articular surface injury related to the December 23, 2014 employment injury.
Dr. Innella, however, did not provide a rationalized explanation of how the December 23, 2014
employment injury when appellant tripped and hit her left knee caused the diagnosed conditions.13
As such, her opinion is insufficient to establish additional accepted conditions.
To establish causal relationship, a claimant must submit a physician’s report in which the
physician reviews the employment factors identified as causing the claimed condition and, taking
these factors into consideration as well as findings upon examination, states whether the
employment injury caused or aggravated the diagnosed conditions and presents medical rationale
in support of her opinion.14 Moreover, the Board has long held that contemporaneous evidence is
entitled to greater probative value than later evidence,15 and Dr. Innella did not begin treatment
with appellant until almost one year after the employment injury.

11

Willie M. Miller, 53 ECAB 697 (2002).

12

Leslie C. Moore, supra note 8.

13

See J.M., Docket No. 15-1906 (issued January 7, 2016).

14

D.E., 58 ECAB 448 (2007).

15

S.S., 59 ECAB 315 (2008).

6

Rationalized medical evidence is evidence which relates a work incident or factors of
employment to a claimant’s condition, with stated reasons of a physician. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.16 The Board finds that appellant has not submitted sufficient rationalized
medical evidence supporting a causal relationship between any of the claimed additional left knee
conditions and the December 23, 2014 employment injury. As such, appellant has failed to meet
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
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.17 Furthermore, whether a particular injury
causes an employee to be disabled for 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.18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not establish that she was disabled due to the accepted
left knee contusion.
As noted above, appellant did not establish that the December 23, 2014 employment injury
caused additional left knee conditions.
The issue of disability from work can only be resolved by competent medical evidence.19
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.20 The record contains no medical opinion
16

C.O., Docket No. 10-0189 (issued July 15, 2010).

17

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

18

Fereidoon Kharabi, 52 ECAB 291 (2001).

19

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

20

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

7

of sufficient rationale to establish that appellant was disabled due to the accepted left knee
contusion.
In reports beginning on February 11, 2015, Dr. Levine advised that appellant could not
work and diagnosed a bruised bone in her left knee. A bruised bone has not been accepted as
employment related, and he did not explain in any of his reports through July 8, 2015 how or why
the accepted left knee contusion caused her any disability from work. Likewise, while
Dr. Augustin advised that appellant could not work, he too did not explain how or why the left
knee contusion caused total disability. Dr. Innella advised that appellant was restricted to light
duty, but she too did not explain why the accepted left knee contusion rendered appellant totally
disabled.
As appellant did not submit sufficient rationalized medical opinion evidence to establish
that she was disabled for work during the period February 7 to August 7, 2015 due to the accepted
left knee contusion, she failed to meet her burden of proof. She was thus not entitled to wage-loss
compensation for this period.21
LEGAL PRECEDENT -- ISSUE 3
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.22
To be entitled to reimbursement of medical expenses, a claimant has the burden of proof
to establish that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.23 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.24
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA. OWCP has the general objective of
ensuring that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time. It, therefore, has broad administrative discretion in choosing means to
achieve this goal. The only limitation on OWCP’s authority is that of reasonableness. Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from

21

R.R., Docket No. 17-1223 (issued February 6, 2018).

22

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

23

M.B., 58 ECAB 588 (2007).

24

R.C., 58 ECAB 238 (2006).

8

established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.25
While OWCP is obligated to pay for treatment of employment-related conditions, the
employee has the burden of proof to establish that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.26
ANALYSIS -- ISSUE 3
The Board finds that OWCP did not abuse its discretion in denying authorization for left
knee surgery.
For a surgical procedure to be authorized, a claimant must submit evidence to show that
the surgery is for a condition causally related to an employment injury and that it is medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.27
Dr. Augustin who began treating appellant in March 2015 recommended left knee
arthroscopic lateral retinacular release for left patellar tilt. Dr. Levine who diagnosed a dislocated
left knee cap also recommended surgery. Dr. Innella requested authorization for arthroscopic left
knee surgery for articular surface injury of patella medial femoral condyle.
As indicated above, none of these conditions have been accepted as employment related.
Appellant must submit evidence that shows that the requested medical procedure is both due to a
condition causally related to an employment injury and that it is medically warranted. In the
preceding analysis, the Board explained why the medical evidence did not support that additional
left knee conditions were causally related to the December 23, 2014 employment injury. As the
requested surgery has not been established to be causally related to appellant’s employment injury,
OWCP did not abuse its discretion by denying her requests for surgery.
Based on the evidence of record, the Board finds that OWCP did not abuse it discretion in
denying the proposed surgical procedure. As noted above, the only restriction on OWCP’s
authority to authorize medical treatment is one of reasonableness.28 Absent sufficient explanation
as to why the proposed surgery was causally related to the December 23, 2014 employment injury,
the Board finds that OWCP acted reasonably in denying appellant’s request for left knee surgery.29
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to expand the acceptance
of her claim to include additional left knee conditions causally related to a December 23, 2014
25

Daniel J. Perea, 42 ECAB 214 (1990).

26

Kennett O. Collins, Jr. 55 ECAB 648 (2004).

27

Supra note 24.

28

See D.C., 58 ECAB 629 (2007).

29

B.L., Docket No. 15-1452 (issued September 20, 2016).

9

employment injury and did not establish disability for the period February 7 to August 7, 2015,
causally related to the accepted injury. The Board further finds that OWCP properly exercised its
discretion by denying appellant authorization for left knee surgery.30
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2018
Washington, DC

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

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

30
Colleen Duffy Kiko, Judge, participated in the preparation of the decision, but was no longer a member of the
Board effective December 11, 2017.

10


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

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1305
Issued: January 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 6, 2010 appellant filed a timely appeal of a January 8, 2010 decision of the
Office of Workers’ Compensation Programs denying a schedule award for a hearing loss.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant sustained a hearing loss entitling him to a schedule award.
FACTUAL HISTORY
On April 8, 2009 appellant, then a 65-year-old storekeeper, filed an occupational disease
claim alleging that he developed hearing loss due to working around loud noise in the
performance of his federal job duties. He was last exposed to noise on September 3, 1996, the
date he retired. Appellant first became aware of his condition on January 1, 1996 and related his
hearing loss to his employment on that date. The employing establishment challenged

appellant’s claim on the grounds that yearly physicals informed him of his hearing loss while
employed.
Appellant submitted an April 13, 2009 report and an audiogram dated April 8, 2009 from
Dr. Gerald G. Randolph, a Board-certified otolaryngologist, who diagnosed bilateral
sensorineural hearing loss. Dr. Randolph stated that appellant had a high-tone hearing loss
which may have been aggravated by noise exposure, but that the low-tone component to
appellant’s hearing loss was not audiometrically compatible with hearing loss caused by noise
exposure.
In a letter dated May 4, 2009, the Office requested additional factual and medical
evidence. Appellant submitted audiograms dated December 1989 through September 5, 1995
obtained for the employing establishment. He described his employment including mail room,
pipefitting, foundry and hazardous material store.
The Office requested a supplemental report from Dr. Randolph on June 18, 2009 and
provided him with a statement of accepted facts. In a June 30, 2009 report, Dr. Randolph
reviewed the statement of accepted facts and appellant’s employment audiograms. He
concluded:
“The claimant left his civil service employment in 1996. The last industrial
audiogram present in the claimant’s record is dated September 1, 1994. That
audiogram revealed a mild hearing loss in the right ear and essentially normal
hearing in the claimant’s left ear. The hearing loss in the right ear was in the
lower frequencies not affected by noise. The hearing loss was ratable at zero
percent in both ears. Since 1994, the claimant’s hearing has degenerated
significantly. The vast majority of this degeneration has been in the lower
frequencies which, on a more likely than not basis, would not be due to industrial
noise exposure…. The increase in the claimant’s hearing loss does not have an
audiometric configuration compatible with hearing loss aggravated by industrial
noise exposure.”
Dr. Randolph stated that, while appellant’s workplace noise exposure was sufficient to
have aggravated hearing loss, he did not believe that noise exposure was the cause of appellant’s
hearing loss. Instead, he attributed appellant’s hearing loss to the diagnosed condition of arterial
disease with the need for bilateral carotid artery surgery.
By decision dated July 15, 2009, the Office denied appellant’s claim. It found that the
medical evidence did not establish a causal relationship between his diagnosed hearing loss and
his accepted federal noise exposure.
Appellant requested an oral hearing on July 18, 2009 that was held on October 29, 2009.
He stated that his hearing loss was increasing and was damaged while working at the employing
establishment. Appellant resubmitted Dr. Randolph’s June 30, 2009 report with a new date of
November 25, 2009.
By decision dated January 8, 2010, an Office hearing representative affirmed the July 15,
2009 decision.
2

LEGAL PRECEDENT
The Office’s regulations define an occupational disease as “a condition produced by the
work environment over a period longer than a single workday or shift.”1 To establish that an
injury was sustained in the performance of duty in an occupational disease claim, a claimant
must submit the following: (1) medical evidence establishing the presence or existence of the
disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. The evidence required to
establish causal relationship is rationalized medical opinion evidence, based upon a complete
factual and medical background, showing a causal relationship between the claimed condition
and identified factors. The belief of a claimant that a condition was caused or aggravated by the
employment is not sufficient to establish causal relation.2
ANALYSIS
On appeal appellant alleged that his hearing loss was caused by noise exposure in the
performance of duty as demonstrated by his employment audiograms. He contended that his
noise exposure at the employing establishment was sufficient to cause hearing loss. The Board
notes that the issue of causal relation is a medical question to be resolved by probative medical
evidence.3
Appellant provided evidence regarding his noise exposure which the Office accepted as
factual. Dr. Randolph advised that he had a loss of hearing. However, appellant failed to
provide the necessary medical opinion evidence establishing that his hearing loss was the result
of the accepted noise exposure.
The only medical evidence is from Dr. Randolph. In response to the Office’s request for
additional information regarding the cause and extent of appellant’s hearing loss, Dr. Randolph
advised that appellant’s loss of hearing was not due to noise exposure, but was instead the result
of his underlying condition of arterial disease. He stated that appellant’s increasing hearing loss
since 1994 did not have an audiometric configuration compatible with a noise-related hearing
loss.
Appellant has the burden of proof to establish the causal relationship between his
diagnosed hearing loss and his employment-related noise exposure and must establish this
relationship through medical evidence. The medical evidence of record does not support this
relationship but instead attributes his hearing loss to a cause other than his accepted noise
1

20 C.F.R. § 10.5(q).

2

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

3

See Paul Foster, 56 ECAB 208 (2004).

3

exposure. For this reason, appellant failed to meet this burden of proof to establish his claim for
hearing loss.
CONCLUSION
The Board finds that appellant failed to establish a causal relationship between his loss of
hearing and the accepted occupational noise exposure in his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2010 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: January 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4