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

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

Docket No. 14-616
Issued: July 8, 2014

Case Submitted on the Record

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

JURISDICTION
On January 24, 2014 appellant, through her representative, filed a timely appeal from the
October 21, 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation for the accepted meniscal tears; and (2) whether appellant met her burden to
establish that the September 17, 2011 work injury aggravated her arthritis.
FACTUAL HISTORY
On September 17, 2011 appellant, a 52-year-old distribution/window clerk, sustained a
traumatic injury in the performance of duty when she twisted her left knee while unloading a
1

5 U.S.C. § 8101 et seq.

large white cage from a truck. OWCP accepted her claim for tears of the medial and lateral
meniscus. Appellant underwent arthroscopic medial and lateral meniscectomies and received
compensation for temporary total disability on the periodic rolls.
Dr. Robert A. Smith, a Board-certified orthopedic surgeon and OWCP referral physician,
evaluated appellant on May 24, 2012. He found that appellant currently suffered no residuals
from the September 17, 2011 employment injury because her meniscal tears were removed
successfully during arthroscopic surgery. Dr. Smith believed that her ongoing symptoms were
related to preexisting and nonindustrial arthritis. He noted that operative findings showed
incidental mild-to-moderate arthritic changes that were clearly preexisting and showed no
structural aggravation. Although appellant’s arthritis could certainly be treated, such treatment
would be unrelated to the September 17, 2011 work injury.
Dr. Michael F. Cavanaugh, the attending Board-certified orthopedic surgeon, reviewed
Dr. Smith’s evaluation and concurred that appellant had healed from the accepted meniscal tears.
He added, however, that the accepted conditions did not embody the entirety of the damage
noted during appellant’s arthroscopic evaluation. When Dr. Cavanaugh last saw appellant on
March 22, 2012, her residual symptoms were primarily patellofemoral. Arthroscopically there
was some damage to the retropatellar surface and he recommended viscosupplementation as a
further treatment.2 Dr. Cavanaugh had seen appellant since 2005 and she had experienced no left
knee pain prior to the work injury. It was therefore his opinion that appellant’s residual left knee
pain arose from the September 17, 2011 work injury. Dr. Cavanaugh recommended that OWCP
accept an aggravation or exacerbation of preexisting patellofemoral arthritis.
OWCP found a conflict in medical opinion between Dr. Smith and Dr. Cavanaugh on
whether the September 17, 2011 work injury aggravated appellant’s patellofemoral arthritis. It
referred her, together with the medical record and a statement of accepted facts, to
Dr. William D. Emper, a Board-certified orthopedic surgeon, for an impartial medical evaluation
to resolve the conflict.
Dr. Emper evaluated appellant on August 23, 2012. He took her history, noted her
current symptoms and listed findings on physical examination. Dr. Emper reviewed all of her
medical records, including a magnetic resonance imaging (MRI) scan study obtained on
September 20, 2011. It showed degenerative arthritis of the patellofemoral joint. Dr. Emper
found that appellant sustained tears of the medial and lateral menisci. Appellant had preexisting
degenerative arthritis unrelated to the injury, which was established by diagnostic testing and
arthroscopic findings. Dr. Emper found that the degenerative arthritis in appellant’s left knee
was not caused or aggravated by the accepted work incident. It was his opinion that she had no
residuals from the September 17, 2011 work injury and that she had fully recovered with no
disability or need for further medical treatment.
OWCP asked Dr. Emper to further explain his opinion that the work incident did not
cause or exacerbate appellant’s degenerative arthritis. Dr. Emper noted that x-rays on
September 19, 2011, two days after the incident, showed medial joint space narrowing, which
2

Arthroscopic evaluation of the patellofemoral articulation demonstrated “fissuring and fragmentation of the
retropatellar surface not requiring debridement.”

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was a sign of degenerative arthritis. Further, follow-up x-rays, MRI scan and the operative
report failed to document any evidence of exacerbation. A review of appellant’s medical records
revealed no objective evidence that appellant had an exacerbation of her degenerative arthritis
and no objective evidence that she had any residual damage as a result of the work injury.
Dr. Emper advised that his opinions were to a reasonable medical certainty.
In a decision dated March 25, 2013, OWCP terminated appellant’s compensation for the
accepted left meniscal tears.
Dr. Cavanaugh reviewed Dr. Emper’s report and addressed his opinion that follow-up
x-rays, the MRI scan and the operative report failed to document any findings of exacerbated
degenerative arthritis. “I wish to ask Dr. Emper exactly what findings on arthroscopic evaluation
are specific to an exacerbation or aggravation of underlying arthritis. In the 3,000 or so
arthroscopic knee surgeries that I have personally performed in the past twenty or so years I am
still unable to answer this question.” It was Dr. Cavanaugh’s understanding that appellant was
not experiencing symptoms of arthritis prior to her work-related injury. He added that early after
the work-related injury there were findings consistent with retropatellar pain. Arthroscopic
evaluation documented with photographs a linear fracture of the retropatellar chondral surface,
which is where appellant was currently experiencing her symptoms. Although x-rays after the
work incident showed medial joint narrowing, appellant’s symptoms were arising primarily from
the patellofemoral articulation, which did not show evidence of arthritis on x-ray.
An MRI scan obtained on January 30, 2013 showed no significant change compared with
the prior examination on September 20, 2011.
In a decision dated October 21, 2013, a hearing representative found that OWCP had met
its burden of proof to terminate appellant’s compensation for the accepted meniscus tears. The
hearing representative found that the opinion of the impartial medical specialist represented the
weight of the evidence and established injury-related residuals had resolved.
Appellant’s representative argues on appeal that OWCP did not sustain its burden of
proving that she no longer suffers from residuals of her left knee injury and surgery. He argued
that OWCP did not properly select Dr. Emper to serve as the impartial medical specialist, as
there was no screen shot of his selection. Appellant’s representative also argued that Dr. Emper
did not explain why he felt that appellant’s degenerative arthritic condition was preexisting and
he gave no medical reason for concluding that the work incident did not cause or aggravate her
degenerative arthritis.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 Once OWCP accepts a claim, it has the
burden of proof to justify termination or modification of compensation benefits.4 After it has
3

5 U.S.C. § 8102(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

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determined that an employee has disability causally related to federal employment, OWCP may
not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.5
ANALYSIS -- ISSUE 1
OWCP accepted that appellant tore her left medial and lateral meniscus when she twisted
her knee at work on September 17, 2011. It paid her compensation benefits on the basis of the
accepted meniscal tears. Dr. Smith, the orthopedic surgeon and OWCP referral physician, later
examined appellant and found that she suffered no current residuals because the meniscal tears
were removed successfully during arthroscopic surgery. Dr. Cavanaugh, the attending
orthopedic surgeon who performed the surgery, agreed. He found that appellant had healed from
the accepted meniscal tears.
There is no disagreement on this point. Dr. Emper, the orthopedic surgeon who served as
an impartial medical specialist on another issue, also found that appellant had fully recovered
from the meniscus tears with no disability or need for further medical treatment.
The clear weight of the medical opinion evidence of record establishes that appellant
recovered from her meniscal tears. The Board finds that OWCP met its burden to justify the
termination of compensation benefits for the accepted medical conditions. The Board will
therefore affirm OWCP’s October 21, 2013 decision on the issue of termination.
LEGAL PRECEDENT -- ISSUE 2
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,6 including that he or she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he or she claims compensation is causally related to that employment injury.7
Causal relationship is a medical issue,8 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,9 must be
one of reasonable medical certainty,10 and must be supported by medical rationale explaining the

5

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

Mary J. Briggs, 37 ECAB 578 (1986).

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See Morris Scanlon, 11 ECAB 384, 385 (1960).

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nature of the relationship between the diagnosed condition and the established incident or factor
of employment.11
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.12 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.13
ANALYSIS -- ISSUE 2
A conflict did arise between Dr. Smith and Dr. Cavanaugh on whether the September 17,
2011 work injury aggravated appellant’s arthritis. Dr. Smith believed appellant’s arthritis was
nonindustrial, while Dr. Cavanaugh recommended that OWCP accept an aggravation or
exacerbation of preexisting patellofemoral arthritis.
To resolve this conflict, OWCP referred appellant to Dr. Emper, a Board-certified
orthopedic surgeon. It provided Dr. Emper with appellant’s medical record and a statement of
accepted facts so he could base his opinion on a proper foundation.
Dr. Emper noted that an MRI scan obtained on September 20, 2011, only three days after
appellant twisted her knee at work, showed degenerative arthritis of the patellofemoral joint. It
was his opinion that appellant’s arthritis was a preexisting condition and unrelated to the
September 17, 2011 work injury. Dr. Emper explained that x-rays, MRI scan and the operative
report failed to document any evidence of exacerbation.14 His review of appellant’s medical
records revealed no objective evidence that the work incident had aggravated her arthritis. An
MRI scan obtained on January 30, 2013 showed no significant change compared with the prior
examination on September 20, 2011.
The Board finds that the opinion of the impartial medical specialist is based on a proper
history and is sufficiently well rationalized that it must be accorded special weight in resolving
the conflict on whether the September 17, 2011 work injury aggravated appellant’s
patellofemoral arthritis. As the weight of the medical evidence fails to establish the essential
element of causal relationship, the Board finds that appellant has not met her burden of proof.
The Board will affirm OWCP’s October 21, 2013 decision on the issue of patellofemoral
arthritis.

11

See William E. Enright, 31 ECAB 426, 430 (1980).

12

5 U.S.C. § 8123(a).

13

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

14

Dr. Smith also noted that operative findings showed incidental mild-to-moderate arthritic changes that were
clearly preexisting and showed no structural aggravation.

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Appellant’s representative contends on appeal that OWCP did not sustain its burden of
proof that she no longer has residuals of her left knee injury and surgery. OWCP’s burden
extends only to the accepted meniscal tears and Dr. Cavanaugh agreed that appellant had healed
from those tears. Accordingly, the accepted medical conditions no longer provided a basis for
the payment of compensation. To the extent that appellant seeks workers’ compensation benefits
for a medical condition OWCP has not accepted, the burden of proof rests with her to establish
her claim.
Appellant’s representative argued there is no screen shot of Dr. Emper’s selection. A
physician selected by OWCP to serve as an impartial medical specialist should be one wholly
free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.15
The Medical Management Application, which replaced the Physician Directory System,
allows users to access a database of Board-certified specialist physicians and is used to schedule
referee examinations. The application contains an automatic and strict rotational scheduling
feature to provide for consistent rotation among physicians and to record the information needed
to document the selection of the physician.16
The claims examiner is not able to dictate which physician serves as the impartial
medical specialist. A medical scheduler inputs the claim number into the application, from
which the claimant’s home zip code is loaded. The scheduler chooses the type of examination to
be performed (second opinion or impartial referee) and the applicable medical specialty. The
next physician in the roster appears on the screen and remains until an appointment is scheduled
or the physician is bypassed. If the physician agrees to the appointment, the date and time are
entered into the application. Upon entry of the appointment information, the application prompts
the medical scheduler to prepare an ME023 appointment notification report for imaging into the
case file. Once an appointment with a medical referee is scheduled, the claimant and any
authorized representative are to be notified.17
If an appointment cannot be scheduled in a timely manner, or cannot be scheduled for
some other reason such as a conflict or the physician is of the wrong specialty, the scheduler will
update the application with an appropriate bypass code. Upon the entering of a bypass code, the
Medical Management Application will select the next physician in the rotation.18

15

Raymond J. Brown, 52 ECAB 192 (2001).

16

See generally Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations,
Chapter 3.500.5 (December 2012).
17

B.N., Docket No. 12-1394 (issued August 5, 2013).

18

Supra note 16.

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The record does show a screen shot of Dr. Emper’s appointment information, together
with an ME023 appointment notification report documenting his selection through the MMA, or
Medical Management Application. The record supports his proper selection.
Appellant’s representative also contends that Dr. Emper did not explain why he felt that
appellant’s degenerative arthritic condition was preexisting and he gave no medical reason for
concluding that the work incident did not cause or aggravate her degenerative arthritis.
Dr. Emper explained that x-rays taken on September 19, 2011 documented appellant’s
degenerative arthritis. Also, an MRI scan obtained on September 20, 2011 showed degenerative
arthritis of the patellofemoral joint. It was his opinion that appellant’s arthritis was preexisting,
and Dr. Cavanaugh agreed. The attending orthopedic surgeon urged OWCP to accept an
aggravation or exacerbation of preexisting patellofemoral arthritis.
Dr. Emper did offer rationale to support his opinion. He noted that follow-up x-rays,
MRI scan and the operative report all failed to document any evidence of exacerbation. A
review of appellant’s medical records revealed no objective evidence that the work incident had
aggravated her arthritis. Further, an MRI scan obtained on January 30, 2013 showed no
significant change compared with the prior examination on September 20, 2011.
Dr. Cavanaugh’s response to Dr. Emper is not sufficient to create a second conflict or
require further development. As the operating surgeon, he conceded that he was unable to
identify an arthroscopic finding that would be specific to aggravation. Dr. Cavanaugh’s
observation that appellant was asymptomatic before the work incident is insufficient, by itself, to
establish the element of causal relationship.19 He noted that x-rays taken after the work incident
did not show evidence of arthritis, but the Board notes that they did show evidence of mild
degenerative changes. As noted, an MRI scan obtained on January 30, 2013 showed no
significant change compared with the prior examination on September 20, 2011, only three days
after the work incident. If the work incident aggravated appellant’s preexisting patellofemoral
arthritis, there appears to be no objective evidence to document it.
Dr. Cavanaugh pointed to a linear fracture of the retropatellar chondral surface. His
operative report notes that his evaluation of the patellofemoral articulation demonstrated
“fissuring and fragmentation of the retropatellar surface not requiring debridement.” If the
September 17, 2011 twisting incident caused or aggravated this fissuring and fragmentation,
Dr. Cavanaugh did not fully explain the element of causal relationship. His challenge to
Dr. Emper to explain to a reasonable medical certainty how this condition could not be related to
the work incident does not satisfy appellant’s burden to establish causal relationship through
positive, soundly reasoned medical opinion evidence. If appellant had early findings consistent
with retropatellar pain, Dr. Cavanaugh must explain how the September 17, 2011 work injury
caused these findings. Appellant carries the 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.
19

Thomas D. Petrylak, 39 ECAB 276 (1987) (a temporal sequence of events is not sufficient to establish causal
relationship).

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CONCLUSION
The Board finds that OWCP met its burden to justify the termination of compensation for
the accepted meniscal tears. The Board also finds that appellant has not met her burden to
establish that the September 17, 2011 work injury aggravated her patellofemoral arthritis.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
_________________________________________
B.W., Appellant
and
DEPARTMENT OF THE ARMY, JOINT
MANUFACTURING & TECHNOLOGY
CENTER, Rock Island, IL, Employer
__________________________________________

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

Docket No. 17-0005
Issued: April 25, 2018

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 October 5, 2016 appellant, through counsel, filed a timely appeal from an August 1,
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.

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 his burden of proof to establish that his diagnosed right
shoulder condition is causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 7, 2014 appellant, then a 46-year-old welder, filed an occupational disease (Form
CA-2) alleging a right elbow and shoulder condition which arose on or about April 23, 2014. He
indicated that he was working in the cleaning room of the foundry performing arc gouging and
removing gates and risers on muzzle brake castings. Appellant further noted that he had been
using a large grinder to smooth parts. As a result, he developed a sharp pain in his elbow and
shoulder which continued over the next few days. Appellant described his condition as a torn
biceps muscle. The employing establishment noted that appellant first reported his condition to
his supervisor on June 3, 2014.
Appellant’s supervisor, J.K., provided a June 3, 2014 preliminary incident notification
report. He indicated that appellant came to the office that morning and reported that he had been
grinding on a muzzle brake on April 23, 2014, and at the end of the day his shoulder was sore.
Appellant also reportedly informed J.K. that he had been seeing a doctor for a torn muscle in his
right shoulder. J.K. indicated that he sent appellant to the employee clinic.
On June 3, 2014 a registered nurse from the employing establishment’s occupational health
clinic indicated that appellant had been advised to resume regular activities. Appellant was seen
for complaints of right shoulder pain that he attributed to an April 20, 2013 incident while he was
grinding at work.
In a July 7, 2014 statement, J.K. questioned whether appellant injured his right shoulder at
work. He explained that appellant did a lot of the same kind of work at home, noting that he junksout cars, works on derby cars, and welds on the side. J.K. indicated that, on June 2, 2014, he
overheard another employee telling appellant how much money he was getting for his hand, and
the following day (June 3, 2014) appellant reported having torn a muscle in his right shoulder, and
that he had been seeing a doctor for it since April 23, 2014. Because of the delay in reporting the
injury and appellant’s outside activities, J.K. stated that he had a hard time believing that
appellant’s reported injury was work related.
On July 8, 2014 the employing establishment formally controverted the claim indicating
its belief that appellant filed a fraudulent claim in an attempt to secure leave for his pending
surgery, as well as to secure payment for a schedule award.
By development letter dated August 1, 2014, OWCP requested that appellant provide
additional factual and medical evidence in support of his claimed right elbow/shoulder injury. It
specifically inquired about the delay in reporting the alleged injury, whether appellant sustained
any other elbow/shoulder injury in the interim period, and whether he was claiming an
occupational disease or a traumatic injury. OWCP afforded him at least 30 days to submit the
requested information.

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In an August 14, 2014 narrative statement, appellant clarified that he was claiming an
occupational disease. Regarding the six-week delay in reporting his injury, he indicated that he
experienced slight pain in his arm and shoulder while doing a lot of grinding, which he thought
was due to overuse and just required some rest. However, the pain was consistent when lifting
heavy objects or when grinding. Once appellant decided to get it looked at, it took one week to
see the doctor, then another two weeks to see a specialist, and then two more weeks to have a
magnetic resonance imaging (MRI) scan and obtain the results. Appellant also described his
specific employment duties.
In a September 30, 2014 statement, J.K. described appellant’s various duties as a welder.
He also noted a conversation he had with appellant on June 5, 2014 when appellant reportedly told
him he thought he hurt himself working on a muzzle brake on April 23, 2014, but was not sure.
Appellant pointed out a cutting booth table with a hoist that was reportedly difficult to use. J.K.
indicated that the particular cutting booth was seldom used. Additionally, he reiterated that it was
only after talking to another employee who had received a large settlement, that appellant decided
to file a claim.
OWCP also received a May 20, 2014 narrative report from Dr. Mark G. Stewart, a Boardcertified orthopedic surgeon. Dr. Stewart noted that appellant presented with right shoulder pain.
Appellant reported that he was grinding with a large grinder at work and hurt his arm. A right
shoulder x-ray revealed acromioclavicular (AC) joint arthritis. On physical examination,
Dr. Stewart found full range of motion in each shoulder with tenderness over the anterolateral
corner of the right shoulder and tenderness over the AC joint and prominence. He recommended
an MRI scan and evaluation for rotator cuff tear. Appellant was advised to return after obtaining
a right shoulder MRI scan.
A May 23, 2014 right shoulder MRI scan arthrogram revealed a large, full-thickness tear
of the supraspinatus tendon, probable superior labral anterior to posterior tear (SLAP) of the
biceps-labral complex, and moderate degenerative changes of the AC joint.
In a June 2, 2014 follow-up report, Dr. Stewart noted that appellant’s recent MRI scan was
consistent with a labral tear. He and appellant discussed various treatment options, including
arthroscopic surgery. Appellant opted to undergo surgery.
On August 20, 2014 Dr. Stewart performed a right shoulder arthroscopic subacromial
decompression and rotator cuff repair. The preoperative diagnosis was labral tear, but the
postoperative diagnosis was right shoulder rotator cuff tear.3
By decision dated October 2, 2014, OWCP denied appellant’s occupational disease claim.
It found that the evidence of record was insufficient to establish that the event(s) occurred as
alleged.
On March 2, 2015 appellant requested reconsideration.

3

The arthroscopy revealed that both the labrum and biceps tendon were intact.

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OWCP received follow-up treatment reports from Dr. Stewart dated August 27,
September 24, November 5, and December 8, 2014. He advised that appellant could return to
work in a limited-duty capacity on September 24, 2014. Dr. Stewart released appellant to full,
unrestricted activities effective December 8, 2014.
By decision dated May 28, 2015, OWCP modified its October 2, 2014 decision to reflect
that appellant had established fact of injury. It accepted that appellant’s duties required repetitive
grinding and lifting heavy objects. OWCP also noted that Dr. Stewart initially diagnosed a labral
tear, and that appellant had undergone surgery on August 20, 2014 to repair a torn rotator cuff.
Thus, the record established a medical diagnosis. However, OWCP continued to deny the claim
as Dr. Stewart had not identified specific employment factors he believed either caused or
contributed to appellant’s diagnosed condition(s).
On June 8, 2015 appellant again requested reconsideration.
In an October 27, 2014 report, Dr. Stewart explained that he initially evaluated appellant
on May 20, 2014, with a chief complaint of right shoulder pain. He noted that appellant reported
that he developed right shoulder pain after utilizing a grinder at work, which hurt his arm.
Dr. Stewart advised that, prior to this injury, appellant did not have any pain with use of the grinder.
He further noted that appellant reported that his work activities aggravated his shoulder pain.
Lastly, Dr. Stewart noted that appellant had undergone a rotator cuff repair, and that he remained
under his care.
In a July 17, 2015 decision, OWCP denied appellant’s request for reconsideration of the
merits of his claim.
On April 18, 2016 appellant, through counsel, again requested reconsideration and
submitted additional evidence, including an April 28, 2014 right shoulder x-ray that revealed
moderately-sized AC joint osteophytes and mild glenohumeral degenerative changes. In an
April 28, 2014 narrative report, Dr. Even C. Kvelland, a Board-certified internist, noted that
appellant presented with gradually progressive shoulder problems over a two-year period. The
right shoulder was far more symptomatic than the left. Dr. Kvelland also noted that appellant was
right-handed. He reported that appellant worked at an industrial site doing repetitive and heavy
work. There was no known direct trauma to either shoulder. Dr. Kvelland noted that appellant
currently had some discomfort at the elbow, and sometimes a sense of numbness in both hands.
His clinical assessment was right shoulder discomfort, which he noted was elicited by motion of
the shoulder. Dr. Kvelland prescribed a corticosteroid (Prednisone) and ordered x-rays.
In a March 8, 2016 report, Dr. Stewart noted that appellant reported having left shoulder
pain for the last year. Appellant also reported that his shoulder popped, and it was getting worse.
Left shoulder x-rays revealed no fracture or dislocation. Dr. Stewart diagnosed left shoulder pain,
possible rotator cuff tear. He recommended a left shoulder MRI scan. With respect to the cause
of appellant’s right shoulder condition, Dr. Stewart opined that the pain was a result of his work

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activities, which aggravated his symptoms.4 He noted that appellant eventually had to have a right
shoulder labral repair in 2014.
By decision dated August 1, 2016, OWCP denied modification of its May 28, 2015
decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA5 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 diagnosed condition is causally
related to the identified employment factors.7
The fact that a condition manifests itself during a period of employment is not sufficient to
establish causal relationship.8 Temporal relationship alone will not suffice.9 Entitlement to FECA
benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of
a causal relationship.10

4

Dr. Stewart indicated that appellant provided him a copy of his (welder) position description.

5

Supra note 2.

6

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a medical
question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris,
48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed condition
and the implicated employment factors must be based on a complete factual and medical background. Victor J.
Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors. Id.
7

Victor J. Woodhams, id.

8

20 C.F.R. § 10.115(e).

9

See D.I., 59 ECAB 158, 162 (2007).

10

See M.H., Docket No. 16-0228 (issued June 8, 2016).

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ANALYSIS
OWCP found that appellant established fact of injury. However, it denied his occupational
disease claim because the medical evidence of record failed to establish causal relationship
between the diagnosed right shoulder condition and appellant’s specific duties as a welder.
When Dr. Kvelland examined appellant on April 28, 2014, he did not provide a specific
diagnosis, rather, he merely noted right shoulder discomfort. However, pain and/or discomfort is
only considered a symptom, not a medical diagnosis.11 Moreover, Dr. Kvelland did not address
the cause of appellant’s right shoulder complaints. Accordingly, his report is insufficient to satisfy
appellant’s burden of proof.
Appellant’s diagnostic studies, which included an April 28, 2014 x-ray and a May 23, 2014
MRI scan arthrogram, did not address the cause of the diagnosed right shoulder condition. The
Board has previously held that 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.12
When Dr. Stewart initially examined appellant on May 20, 2014, he noted that there was
x-ray evidence of right AC joint arthritis. He recommended a right shoulder MRI scan for
evaluation of a rotator cuff tear. Dr. Stewart noted a history of “grinding with a large grinder at
work.” However, at that time, he did not offer an opinion on causal relationship. Dr. Stewart’s
June 2, 2014 follow-up report also did not address the cause of the suspected right shoulder labral
tear. As such, the May 20 and June 2, 2014 reports are of limited probative value on the issue of
causal relationship.13
The June 3, 2014 occupational health treatment records are insufficient to satisfy
appellant’s burden of proof because the healthcare provider was a nurse. Certain healthcare
providers such as physician assistants, nurse practitioners, physical therapists, and social workers
are not considered “physician[s]” as defined under FECA.14 Consequently, the medical findings
and/or opinions of the nurse will not suffice for purposes of establishing entitlement to FECA
benefits15 as the reports of nurses do not constitute competent medical evidence.16
Dr. Stewart’s August 20, 2014 operative report included a postoperative diagnosis of right
shoulder rotator cuff tear. However, he did not specifically address causal relationship. Neither
did the follow-up treatment reports covering the period August 27 through December 8, 2014. As
11

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
12

K.W., 59 ECAB 271, 279 (2007).

13

Id.; S.E., Docket No. 08-2214 (issued May 6, 2009).

14

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

15

David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a (January 2013).
16

A.L., Docket No. 17-2002 (issued March 23, 2018).

6

noted, 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.17
In his October 27, 2014 report, Dr. Stewart noted that he initially evaluated appellant on
May 20, 2014 for complaints of right shoulder pain, which appellant reported had developed after
utilizing a grinder at work. Appellant also reported that his work activities aggravated his shoulder
pain. He also advised Dr. Stewart that, prior to the injury, he did not have any pain with the use
of the grinder. Additionally, Dr. Stewart noted that appellant had undergone a rotator cuff repair.
The October 27, 2014 report reiterated information appellant provided Dr. Stewart.
However, Dr. Stewart did not specifically attribute appellant’s right rotator cuff condition to his
duties as a welder.18 His October 27, 2014 report did not include medical reasoning, or rationale,
explaining how appellant’s reported work activities either caused or contributed to the diagnosed
right rotator cuff tear.19
In his latest report dated March 8, 2016, Dr. Stewart indicated that appellant’s right
shoulder pain was the result of his “work activities.” He also noted that appellant eventually
underwent surgery. However, Dr. Stewart did not identify the particular “work activities” or
explain how they either caused or contributed to appellant’s right shoulder condition. A
physician’s opinion on causal relationship must be supported by medical rationale, explaining the
nature of the relationship between the diagnosed condition and appellant’s specific employment
factors.20
As the record is devoid of rationalized medical opinion evidence explaining how or why
appellant’s employment duties either caused or contributed to his diagnosed right shoulder
condition, appellant has not met his burden of proof to establish causal relationship.
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 his burden of proof to establish that his
diagnosed right shoulder condition is causally related to the accepted factors of his federal
employment.

17

K.W., supra note 12.

18

See A.M., Docket No. 10-0205 (issued October 5, 2010) (a physician’s opinion must be independent from a
claimant’s belief regarding causal relationship).
19

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (a medical opinion not fortified by medical rationale is of
little probative value).
20

Victor J. Woodhams, supra note 6.

7

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2018
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Dodge, IA, Employer
__________________________________________

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

Docket No. 12-574
Issued: September 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 23, 2012 appellant filed a timely appeal from a December 22, 2011 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 established that he is entitled to an additional award
for permanent impairment to his right arm.
FACTUAL HISTORY
On February 2, 2011 appellant, then a 62-year-old letter carrier filed a traumatic injury
claim (Form CA-1) alleging that on January 31, 2011 he slipped on ice and injured his right
shoulder. The record indicates that he had a prior claim for a right shoulder injury on
1

5 U.S.C. § 8101 et seq.

January 11, 2001 and pursuant to that claim had received a schedule award on June 27, 2002, for
a seven percent impairment to his right arm. A June 20, 2005 magnetic resonance imaging
(MRI) scan report stated that appellant had fallen on ice in 2001 and had a rotator cuff injury.
The report indicated that the MRI scan revealed a partial tear of the supraspinatous tendon.
OWCP accepted the claim for a right rotator cuff sprain of the shoulder. Appellant
underwent right shoulder arthroscopic surgery on February 25, 2011.
On August 12, 2011 appellant submitted a claim for compensation (Form CA-7)
indicating that he was claiming a schedule award. He submitted an August 4, 2011 report from
Dr. Thomas Greenwald, an orthopedic surgeon, stating that appellant had recovered from an
infection following the rotator cuff surgery. Dr. Greenwald stated that appellant had reached
maximum medical improvement, with near full range of motion and mild external rotation
strength deficit. He indicated that appellant could return to work.
By letter dated August 16, 2001, OWCP requested appellant submit an additional report
from Dr. Greenwald with respect to a permanent impairment under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). The record contains a copy of the letter with a note from Dr. Greenwald stating that
appellant had a two percent arm impairment under the fifth edition of the A.M.A., Guides.
In a report dated December 11, 2011, an OWCP medical adviser opined that appellant’s
right shoulder impairment under the sixth edition of the A.M.A., Guides should be determined
under the shoulder regional grid at Table 15-5. He stated that the default impairment for a
rotator cuff full thickness tear was five percent. The medical adviser found that there was no
adjustment to the default value, applying the grade modifiers for physical examination,
functional history and clinical studies. He noted that appellant had previously received a
schedule award for a seven percent impairment to the right shoulder and therefore he was not
entitled to additional schedule award.
By decision dated December 22, 2011, OWCP denied the claim for an additional
schedule award. It found that appellant had previously received a schedule award for the right
shoulder of seven percent and as his current impairment was less than seven percent he was not
entitled to an additional award.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.2 Neither, FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

2

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 OWCP’s
procedures provide that, effective May 1, 2009, all schedule awards are to be calculated under
the sixth edition of the A.M.A., Guides.4 Any recalculations of previous awards which result
from hearings or reconsideration decisions issued on or after May 1, 2009, should be based on
the sixth edition of the A.M.A. Guides. A claimant who has received a schedule award
calculated under a previous edition and who claims an increased award will receive a calculation
according to the sixth edition for any decision issued on or after May 1, 2009.5
With respect to shoulder impairment, the A.M.A., Guides provides a regional grid at
Table 15-5.6 The class of impairment (CDX) is determined based on specific diagnosis and then
the default value for the identified CDX is determined. The default value (Grade C) may be
adjusted by using grade modifiers for Functional History (GMFH) Table 15-7, Physical
Examination (GMPE) Table 15-8 and Clinical Studies (GMCS) Table 15-9. The adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
ANALYSIS
In the present case, an attending physician, Dr. Greenwald, provided a brief opinion that
appellant had a two percent arm impairment under the fifth edition of the A.M.A., Guides. This
opinion is of diminished probative value as it did not refer to the sixth edition of the A.M.A.,
Guides and provided no accompanying explanation or medical rationale.
The medical evidence was reviewed by an OWCP medical adviser, who provided an
opinion under the sixth edition of the A.M.A., Guides. The medical adviser noted that the
diagnosis with the highest impairment rating would be a full thickness rotator cuff tear, which
under Table 15-5 has a Grade C (default) arm impairment of five percent.8 As noted above, the
default value may be adjusted using the adjustment formula for functional history, physical
examination and clinical studies. Based on the findings of Dr. Greenwald, the medical adviser
applied a grade modifier 0 for functional history, 1 for physical examination and 2 for clinical
studies.9 Applying the net adjustment formula, there is no adjustment from the five percent
default impairment for the right arm.

3

A. George Lampo, 45 ECAB 441 (1994).

4

FECA Bulletin No. 09-03 (March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700 (January 2010).
5

Id.

6

A.M.A., Guides 401, Table 15-5.

7

The net adjustment is up to +2 (Grade E) or -2 (Grade A).

8

A.M.A., Guides 403, Table 15-5. The diagnosis is Class (CDX) 1 for residual loss, functional with normal
motion.
9

Id. 406-411, Table 15-7 to Table 15-9.

3

The medical adviser noted that appellant had previously received a schedule award based
on a permanent impairment to the right shoulder of seven percent. When a current impairment
duplicates a prior impairment, the schedule award benefits are reduced by the period of
compensation paid under the schedule award for an earlier injury.10 Since the current
impairment for the right shoulder was five percent, there was no basis for an additional award.
The Board finds that OWCP properly denied the request for an additional schedule award in this
case.
On appeal, appellant stated that Dr. Greenwald did not provide opinions under the sixth
edition of the A.M.A., Guides and he had asked OWCP for an independent evaluation. The
Board notes that it is appellant’s burden of proof to submit the necessary evidence to establish a
schedule award.11 For the reasons noted above, the evidence of record was not sufficient to
establish an increased impairment. Appellant may at any time submit medical evidence showing
progression of an employment-related condition resulting in increased impairment and request an
increased schedule award.12
CONCLUSION
The Board finds that appellant has not established entitlement to an additional schedule
award.

10

T.S. Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(c).

11

Edward W. Spohr, 54 ECAB 806, 810 (2003).

12

See Linda T. Brown, 51 ECAB 115 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2011 is affirmed.
Issued: September 19, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Birmingham, AL,
Employer
__________________________________________

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Appearances:
Lauren H. Shine, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0217
Issued: December 16, 2021

Case Submitted on the Record

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

JURISDICTION
On December 1, 2020 appellant, through counsel, filed a timely appeal from a
September 21, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than 180 days have elapsed from the last merit decision, dated January 28,

1

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

The Board notes that appellant submitted additional evidence on appeal to the Board. 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 considering this evidence for the first
time on appeal. Id.

2016, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances set forth in
the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On February 3, 2014 appellant, then a 46-year-old food service worker, ﬁled a traumatic
injury claim (Form CA-1) alleging that she injured her right knee and lower back on January 24,
2014 when her left foot got caught on a desk drawer as she turned in her chair to get up, causing
her to fall while in the performance of duty. On April 29, 2014 OWCP accepted the claim for
contusion of the right knee and sprain of the back, lumbar region. It paid appellant intermittent
wage-loss compensation on the supplemental rolls from April 14 to June 16, 2014.
In a letter dated January 8, 2015, the employing establishment noted that appellant was to
resume regular-duty work as of January 12, 2015, as her treating physician had released her to fullduty on September 24, 2014.
On January 23, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical beneﬁts as the weight of the medical evidence established that she no longer had
residuals or disability due to the January 24, 2014 work injury.
By decision dated March 13, 2015, OWCP terminated appellant’s wage-loss compensation
and medical beneﬁts, effective that date.
On March 30, 2015 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on November 18, 2015.
In a January 28, 2016 decision, an OWCP hearing representative affirmed the March 13,
2015 decision.
On February 16, 2017 appellant, through counsel, requested reconsideration.
In a February 27, 2017 decision, OWCP denied appellant’s request for reconsideration,
ﬁnding that it was untimely filed and failed to demonstrate clear evidence of error.

3

5 U.S.C. § 8101 et seq.

4

Order Remanding Case, Docket No. 19-1864 (issued August 12, 2020); Docket No. 17-1835 (issued
December 19, 2018).

2

On August 24, 2017 appellant, through counsel, filed a timely appeal before the Board. By
decision dated December 19, 2018, the Board found that OWCP properly denied appellant’s
request for reconsideration of the merits of her claim, finding that it was untimely filed and failed
to demonstrate clear evidence of error. 5
On June 28, 2019 appellant, through counsel, again requested reconsideration. Counsel
argued that appellant ﬁled a timely reconsideration request that included medical evidence from
Dr. Kathleen Warner, an internist, that challenged the findings of Dr. Todd Smith, a Boardcertiﬁed orthopedic surgeon, and that OWCP’s failure to consider the medical evidence from
Dr. Warner was clear evidence of error in the issuance of the January 28, 2016 decision. Counsel
indicated that Exhibit A was attached to her request for reconsideration, which consisted of a
certified mail receipt that established the delivery and weight of the package which had contained
Dr. Warner’s prior report. However, none of the purported exhibits were attached to this request
for reconsideration.
By decision dated July 24, 2019, OWCP denied appellant’s June 28, 2019 request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a). It found that her
reconsideration request neither raised substantive legal questions, nor included new and relevant
evidence.
On September 3, 2019 appellant, through counsel, filed an appeal to the Board of the
July 24, 2019 nonmerit decision. By decision dated August 12, 2020, the Board issued an order
finding that the July 24, 2019 OWCP nonmerit decision applied an incorrect standard of review in
denying appellant’s reconsideration request.6 The Board set aside the July 24, 2019 OWCP
decision and remanded the case for proper review under the clear evidence of error standard.
On September 21, 2020 OWCP received additional evidence.
In a report dated May 6, 2014, Dr. Johnny Carter, a Board-certified family practitioner,
noted that appellant had a history of micro low back surgery in 2002 and chronic intermittent low
back pain radiating to the bilateral buttocks and legs. He diagnosed leg pain, sciatica, lumbar
foraminal stenosis, cervical disc degeneration, mechanical low back pain, knee joint pain,
backache unspecified, degenerative disc disease, and lumbar stenosis. Dr. Carter also saw
appellant on August 2, 2016 and diagnosed lumbar foraminal stenosis, lumbar facet arthropathy,
and low back pain.
In a June 9, 2015 report, Dr. Brian Thoma, Board-certified in pain medicine, noted that he
treated appellant for a chief complaint of low back pain that appeared to be mechanical in nature
and was consistent with arthritis and sacroiliitis. He diagnosed chronic pain and noted that she
had a laminectomy in 2003. Dr. Thoma saw appellant for follow up on September 18, October 6,
and December 21, 2015, and advised that he provided lumbar facet medial branch joint nerve
blocks for chronic function-limiting low back pain of facet joint origin. He saw her for follow-up
of chronic pain on January 21, 2016 and diagnosed chronic pain syndrome, pain in right hip,
5

Docket No. 17-1835 (issued December 19, 2018).

6

Docket No. 19-1864 (issued August 12, 2020).

3

sacroilitis not elsewhere classified, spondylitis without myelopathy or radiculopathy, lumbar
region, postlaminectomy syndrome not elsewhere classified, and radiculopathy.
Dr. Aniga Baqauddin, a Board-certified family practitioner, treated appellant on May 13,
2015 and noted that appellant had a disorder characterized by back pain. She related that appellant
referenced a January 24, 2014 fall at work that had her “back hurting [ever] since.” Dr. Baqauddin
diagnosed essential hypertension and abdominal pain. She saw appellant on April 21, 2016 and
provided similar findings.
In August 1, 2016 treatment notes Dr. Ariane Maico, Board-certified in physical medicine
and rehabilitation, noted that appellant presented for low back pain, knee pain, neck pain, and
buttock and leg pain. She related that appellant had a history of micro low back surgery in 2002,
and had chronic intermittent low back pain radiating to the bilateral buttocks and legs. Dr. Maico
found that appellant had scoliosis, multilevel disc disease, and left foraminal stenosis at L5-S1, per
previous magnetic resonance imaging (MRI) scan imaging, and a history of knee pain. She also
noted that appellant had some previous low back pain which she attributed to a work injury at the
employing establishment; however, she advised that appellant was “settled and no longer pursuing
treatment under her work insurance.” Dr. Maico noted a prior disc surgery in 2003, and diagnosed
lumbar foraminal stenosis, lumbar facet arthropathy, low back pain , degenerative lumbar disc pain,
and a high suspicion for facetogenic pain.
In treatment notes dated August 17, October 13, and November 9, 2016, and January 4,
2017, Dr. Rebecca Byrd, a Board-certified internist, noted that she saw appellant for chief
complaints of chronic back pain. She diagnosed chronic low back pain, lumbar radiculopathy,
essential hypertension, and provided work restrictions which included no prolonged standing and
no lifting over 10 pounds.
Dr. Thoma saw appellant on September 26 and 29, 2016 for pain in the right leg. He
diagnosed chronic low back pain, right leg pain, chronic pain syndrome, musculoskeletal pain,
lumbar spondylosis, degeneration of lumbar intervertebral disc, sacroiliac joint inflamed, lumbar
postlaminectomy syndrome, and recommended long-term drug therapy.
A December 19, 2016 MRI scan of the lumbar spine read by Dr. Brandon Schwartz, an
internal medicine specialist, demonstrated broad-based annular bulge and bilateral facet joint
hypertrophy at L5-S1 leading to moderate-to-severe left-sided neural foraminal stenosis and
multilevel degenerative spondylosis.
By decision dated September 21, 2020, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP’s regulations provide that to be entitled to a merit review of an OWCP decision, a
request for reconsideration must be received by OWCP within one year of the date of OWCP’s

4

decision for which review is sought. 7 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS).8
OWCP, however, may not deny a request for reconsideration solely because it was
untimely filed. It may consider an untimely request for reconsideration if the evidence or argument
contained in the reconsideration request demonstrates clear evidence of error on the part of
OWCP.9 In this regard, OWCP will conduct a limited review of how the newly submitted evidence
bears on the prior evidence of record. 10 Its regulations and procedures provide that OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth
in 20 C.F.R. § 10.607(a), if the claimant’s request demonstrates clear evidence of error on the part
of OWCP.11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.12 The Board
notes that clear evidence of error is intended to represent a difficult standard. 13 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.14 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion. 15 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP. 16 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record. 17 The Board makes an independent

7

20 C.F.R. § 10.607; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016).
8

Id. at Chapter 2.1602.4(b).

9

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
10

See G.G., id.; Nelson T. Thompson, 43 ECAB 919 (1992).

11

Supra note 9; supra note 7 at Chapter 2.1602.5(a) (February 2016).

12

G.G., supra note 9.

13

M.P., Docket No. 19-0200 (issued June 14, 2019).

14

E.B., Docket No. 18-1091 (issued December 28, 2018).

15

J.W., Docket No. 18-0703 (issued November 14, 2018).

16

P.L., Docket No. 18-0813 (issued November 20, 2018).

17

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018); D.G., 59
ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

5

determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.18
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration, as it
was untimely filed and failed to demonstrate clear evidence of error.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the timeliness
of appellant’s June 28, 2019 reconsideration request, as the Board found on prior appeal that her
request was untimely filed. Findings made in prior Board decisions are res judicata absent further
merit review by OWCP under section 8128 of FECA. 19
As appellant’s request for reconsideration was untimely filed, appellant must demonstrate
clear evidence of error on the part of OWCP in its January 28, 2016 decision.
On reconsideration, appellant submitted a series of medical reports dated May 6, 2014 to
January 4, 2017 from Drs. Carter, Thoma, Baqauddin, Maico, Byrd, and Schwartz. However, none
of these reports contained an opinion that she continued to suffer residuals from the accepted
conditions of contusion of the right knee and sprain of the back, lumbar region. As such, they do
not raise a substantial question as to the correctness of OWCP’s September 21, 2020 decision.20
Clear evidence of error is intended to represent a difficult standard. Even the submission
of a detailed, well-rationalized medical report which, if submitted before the merit decision was
issued, would have created a conflict in medical opinion requiring further development, is not clear
evidence of error. 21 Counsel has not shown that OWCP erred in issuing the contested decision, or
that the decision was incorrect at the time it was issued, based upon the independent determination
of the Board.22 For these reasons, the Board finds that appellant has not demonstrated clear
evidence of error by OWCP in its January 28, 2016 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

18

W.R., id.; and C.Y., id.

19

C.M., Docket No. 19-1211 (issued August 5, 2020).

20

See S.P., Docket No. 17-1708 (issued February 23, 2018).

21

James R. Mirra, 56 ECAB 738 (2005); supra note 7 at Chapter 2.1602.5(a) (February 2016).

22

See S.C., Docket No. 20-1537 (issued April 14, 2021); Nancy Marcano, 50 ECAB 110 (1998).

6

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 20-1630
Issued: April 27, 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 September 15, 2020 appellant filed a timely appeal from an August 4, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1
The Board notes that, during the pendency of this appeal, OWCP issued an October 29, 2020 decision which
denied an October 5, 2020 request for reconsideration of its August 4, 2020 decision. The Board and OWCP may not
simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626; see J.W., Docket No.
19-1688, n.1 (issued March 18, 2020); J.A., Docket No. 19-0981, n.2 (issued December 30, 2019); Russell E. Lerman,
43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s October 29, 2020 decision
is set aside as null and void.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 4, 2020 decision, OWCP received additional evidence. 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 has met his burden of proof to establish a medical condition
causally related to the accepted June 22, 2020 employment incident.
FACTUAL HISTORY
On June 25, 2020 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 22, 2020, he experienced head and chest pain when he became
light-headed, dizzy, and nauseous and fainted while in the performance of duty. On the reverse
side of the claim form C.C., an employing establishment supervisor, controverted the claim.
Appellant stopped work on the date of the alleged injury.
In an undated statement, appellant reported that on June 22, 2020 he was delivering mail
on his route while the outside temperature was 91 degrees with 83 percent humidity. He began to
feel dizzy, light-headed, and nauseous and then fainted in his truck for what he believed was about
5 to 10 minutes. Appellant woke up when an unknown woman knocked on his truck door. He
contacted the employing establishment and then drove back to the office and thereafter called an
ambulance.
In notes dated June 23 and 29, 2020, Dr. Concepcion Dancel, a Board-certified
pediatrician, recommended that appellant remain off work from June 23 through July 30, 2020.
In a June 30, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of factual and medical
evidence necessary and provided a questionnaire for completion. OWCP afforded appellant 30
days to respond.
OWCP subsequently received a June 29, 2020 authorization for examination and/or
treatment (Form CA-16) in which the employing establishment authorized appellant to seek
medical care for syncope. The date of injury listed was June 22, 2020. In an attending physician’s
report, Part B of the Form CA-16, of even date, Dr. Rita Goradia, a family practice specialist,
diagnosed syncope and checked a box marked “Yes,” indicating that she believed that the
condition was caused or aggravated by an employment activity. She explained that appellant had
a history of having been found unresponsive, slumped over the wheel of his work van on June 22,
2020, and that this was possibly secondary to sitting in a non-air-conditioned work van on a day
where outside temperatures were in excess of 90 degrees.
On July 9, 2020 Dr. James Zu, a Board-certified neurologist, referred appellant for a
magnetic resonance imaging (MRI) scan of his brain and electroencephalogram (EEG).
In response to OWCP’s development questionnaire, appellant submitted an undated
statement indicating that, in addition to the hot and humid weather on June 22, 2020, he was lifting
heavy packages all day in excess of his normal workload. After he passed out and was evaluated
by a medic, he indicated that he returned home and sought treatment with a doctor.
In a July 9, 2020 report, Dr. Mathew Cholankeril, a cardiologist, noted that appellant
provided a history of passing out in his postal vehicle and experiencing right-sided chest
discomfort. Appellant related a seven-year history of hypertension, which he indicated began
2

when he started working for the employing establishment. Dr. Cholankeril reviewed an
electrocardiogram (EKG) which revealed sinus rhythm with frequent uniform premature ventricle
contractions (PVCs) in a pattern of trigeminy and an echocardiogram (echo), which revealed
dilated ventricle with low left ventricle systolic function and mild mitral and tricuspid valve
insufficiency. He performed a physical examination and noted elevated blood pressure and an
irregular heartbeat. Dr. Cholankeril diagnosed a recent syncopal episode, uncontrolled
hypertension, hypertensive cardiovascular disease, and frequent ventricular arrhythmia in a pattern
of trigeminy. He recommended a Holter monitor and a nuclear stress test.
In a July 16, 2020 letter, Dr. Cholankeril noted that appellant had been under his care
following a syncopal episode which occurred on June 22, 2020, and that he was taking Norvasc,
Losarten, and Clondine to control his hypertension. He recommended appellant remain out of
work until September 1, 2020.
By decision dated August 4, 2020, OWCP accepted that the June 22, 2020 employment
incident occurred, alleged. However, it denied appellant’s traumatic injury claim because the
medical evidence of record was insufficient to establish causal relationship between appellant’s
diagnosed conditions and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence.8

4

Supra note 1.

5
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

3

The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted June 22, 2020 employment incident.
In the June 29, 2020 Form CA-16, Dr. Goradia provided a diagnosis of syncope and
checked a box marked “Yes” indicating that she believed that the condition was caused or
aggravated by an employment activity. She opined that appellant’s June 22, 2020 syncope episode
at work was possibly secondary to sitting in a non-air-conditioned work van on a day where outside
temperatures were in excess of 90 degrees. Dr. Goradia’s explanation that appellant’s condition
was “possibly” secondary to environmental factors is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal are of diminished probative value.11
Dr. Goradia also did not offer any rationale for her opinion relative to causal relationship. The
Board has held that medical opinion evidence should offer a medically-sound explanation of how
the specific employment incident physiologically caused the injury.12 Lacking an unequivocal and
rationalized explanation, Dr. Goradia’s June 29, 2020 report is insufficient to meet appellant’s
burden of proof.13
In his July 16, 2020 letter, Dr. Cholankeril diagnosed a syncopal episode, uncontrolled
hypertension, hypertensive cardiovascular disease, and ventricular arrhythmia. He did not offer
an opinion as to the cause of these conditions. The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.14 Consequently, Dr. Cholankeril’s July 16, 2020 letter is also
insufficient to establish appellant’s claim.

9
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.5(c)(3); D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued
August 23, 2019).
12
See T.W., Docket No. 20-0767 (issued on January 13, 2021); H.A., id.; L.R., Docket No. 16-0736 (issued
September 2, 2016).
13

See C.B., Docket No. 20-0464 (issued July 21, 2020).

14

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

4

Similarly, Dr. Dancel’s June 20 and 23, 2020 notes do not contain a firm diagnosis,
mechanism of injury or opinion on causal relationship. The Board has held that a medical report
lacking a firm diagnosis is of no probative value.15 Likewise, as noted above, a report that does
not offer an opinion regarding the cause of an employee’s condition is also of no probative value.16
Thus, Dr. Dancel’s notes are insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted June 22, 2020 employment incident, the Board finds that
he has not met his burden of proof to establish his claim.
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 his burden of proof to establish a medical
condition causally related to the accepted June 22, 2020 employment incident.17

15

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

16

Id.

17

The Board notes that the employing establishment issued a Form CA-16, dated June 22, 2020. A completed
Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility or
physician, when properly executed. The form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R.
§ 10.300(c); see G.E., Docket No. 20-1081 (issued January 26, 2021); J.G., Docket No. 17-1062 (issued February 13,
2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 27, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF THE ARMY, TANKAUTOMOTIVE & ARMAMENTS COMMAND,
Anniston, AL, Employer
__________________________________________

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

Docket No. 18-0696
Issued: November 28, 2018

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 February 13, 2018 appellant filed a timely appeal from an August 28, 2017 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 met his burden of proof to establish ratable hearing loss,
warranting a schedule award.
FACTUAL HISTORY
On October 18, 2016 appellant, then a 55-year-old retired heavy mobile equipment
mechanic leader, filed an occupational disease claim (Form CA-2) alleging that he developed
1

5 U.S.C. § 8101 et seq.

hearing loss due to factors of his federal employment.2 He indicated that he first realized that his
hearing loss was caused or aggravated by his federal employment on March 9, 2016.
In an undated summary of appellant’s eight-hour time-weighted average noise exposure at
work, it was noted that from 2004 through 2010, he worked as a heavy mobile equipment mechanic
and was exposed to an average of 92.2 decibels from impact tools and hydraulic engines. From
2010 through 2016, he worked as a heavy mobile equipment mechanic leader and was exposed to
an average of 84.4 decibels from impact tools and hydraulic engines.
After further development of the record regarding appellant’s occupational noise exposure,
OWCP prepared a statement of accepted facts and referred him for a second opinion examination.
OWCP received copies of various audiograms administered between March 11, 2004 and
March 9, 2016.
In a February 8, 2017 report, Dr. Dennis G. Pappas, Jr., a Board-certified otolaryngologist,
noted appellant’s history of noise exposure during his federal employment, which dated back to
2004 at the employing establishment. He further noted that appellant served in the military from
1979 through 1985 as an ammunition specialist. Dr. Pappas reviewed available medical records
and examined appellant. He observed intact tympanic membranes without retraction, which
moved well with insufflation. Dr. Pappas attached a copy of audiometric test results from the same
date. Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibel losses of 5, 10, 0, and 5, respectively. Testing for the left ear at the
frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibel losses of 5,
10, 10, and 5, respectively. Dr. Pappas diagnosed appellant with bilateral sensorineural hearing
loss and stated that appellant demonstrated loss in excess of what would normally be predicated
on the basis of presbycusis. He noted that workplace exposure was sufficient in intensity and
duration to have caused the loss in question. Dr. Pappas stated that appellant’s sensorineural
hearing loss was due in part or all to noise exposure encountered in appellant’s civilian
employment, given his audiogram and progression of hearing loss. He recommended a magnetic
resonance imaging scan test to rule out cochlear pathology and a trial of amplification.
By decision dated February 14, 2017, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On February 19, 2017 an OWCP medical adviser reviewed the otologic and audiologic
testing performed on behalf of Dr. Pappas and applied OWCP’s standardized procedures to his
evaluation, utilizing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).3 He determined that maximum medical
improvement was achieved on February 8, 2017, the date of the most recent audiogram. The
medical adviser determined that appellant had zero percent binaural hearing loss according to the
A.M.A., Guides and recommended authorization for hearing aids.

2

Appellant retired on disability effective April 2, 2016.

3

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

2

On August 21, 2017 appellant filed a claim for compensation (Form CA-7), requesting a
schedule award.
By decision dated August 28, 2017, OWCP explained that, while appellant’s claim was
accepted for hearing loss due to employment-related noise exposure, his hearing loss was not
sufficiently severe to be considered ratable. Therefore, he was not entitled to schedule award
compensation.
LEGAL PRECEDENT
The schedule award provision 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.6
The A.M.A., Guides have been adopted by the implementing regulations as the appropriate
standard for evaluating schedule losses.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.8 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hertz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides point out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. 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 binaural
hearing loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing
loss.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss, warranting a schedule award.
On February 19, 2017 OWCP’s medical adviser reviewed the otologic and audiologic
testing performed on behalf of Dr. Pappas, a Board-certified otolaryngologist, and properly applied
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

See D.K., Docket No. 10-0174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

7

20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010).

8

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

9

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

3

OWCP’s standardized procedures to this evaluation. Testing for the right ear at the frequency
levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibel losses of 5, 10, 0, and 5,
respectively. These decibel losses were totaled at 20 and were divided by 4 to obtain the average
hearing loss of 5 decibels. This average loss was then reduced by 25 decibels (25 decibels being
discounted as discussed above), which resulted in a figure less than zero. Testing for the left ear
at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed decibel losses
of 5, 10, 10, and 5, respectively. These decibel losses were totaled at 30 and were divided by 4 to
obtain the average hearing loss of 7.5 decibels. This average loss, when reduced by 25 decibels,
also resulted in a figure less than zero. Therefore, OWCP’s medical adviser properly concluded
that the calculations demonstrated that appellant did not have ratable hearing loss under the
relevant standards contained in the sixth edition of the A.M.A., Guides.10
The Board finds that there is no current medical evidence of record supporting that
appellant has ratable hearing loss under OWCP’s standardized procedures for rating hearing
impairment.11 Although appellant has an employment-related hearing loss, it is not significant
enough to be ratable for schedule award purposes.12 As the February 8, 2017 audiogram did not
demonstrate that appellant’s hearing loss was ratable, he is not entitled to a schedule award for his
accepted bilateral sensorineural hearing loss.13
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 employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss, warranting a schedule award.

10

See J.M., Docket No. 17-0786 (issued July 6, 2018).

11

Although the record includes the results of audiograms administered during the period March 11, 2004 through
March 9, 2016, these results do not satisfy OWCP’s quality standards. See J.H., 59 ECAB 377, 380 (2008). If an
audiogram is prepared by an audiologist, it must be certified by a physician as being accurate before it can be used to
determine the percentage of hearing loss. See Joshua A. Holmes, 42 ECAB 231, 236 (1990).
12

See G.G., Docket No. 18-0566 (issued October 2, 2018); D.G., Docket No. 16-1486 (issued December 16, 2016).

13

The Board notes that hearing aids were recommended by OWCP’s medical adviser.

4

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 28, 2018
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

5