United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, RANCHO SANTA FE
POST OFFICE, Rancho Santa Fe, CA, Employer
__________________________________________

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

Docket No. 07-1236
Issued: February 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 4, 2007 appellant filed a timely appeal of the May 2 and December 29, 2006
merit decisions of the Office of Workers’ Compensation Programs finding that he had no more
than a 16 percent impairment of the right upper extremity and a 16 percent impairment of the
right lower extremity, for which he received schedule awards. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than a 16 percent impairment to the right upper
extremity and a 16 percent impairment to the right lower extremity, for which he received
schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. In a May 22, 1998 decision, the Board
affirmed an Office hearing representative’s November 24, 1995 decision which found that
appellant was not entitled to disability compensation for the period August 14 through

November 7, 1993 and February 21 through August 29, 1994.1 The facts and the history relevant
to the present issue are hereafter set forth.
On March 10, 1993 appellant, then a 47-year-old clerk, sustained injury when a rest bar
collapsed which caused him to fall to the ground on his right side and hurt his neck, back, right
wrist and right elbow. The Office accepted the claim for cervical, thoracic and right wrist
sprains, right elbow strain, right shoulder impingement syndrome and right lateral meniscus tear.
It authorized open acromioplasty and a Mumford procedure of the right shoulder which were
performed on December 13, 1993 and arthroscopic subacromial decompression and another
Mumford procedure which were performed on June 5, 2000. Regarding the right knee, the
Office authorized a partial posterior horn medial meniscectomy, a partial posterior horn lateral
meniscectomy and a plica resection with patella debridement and synovectomy which were
performed on November 8, 1993 and January 24, 2001. All of the surgeries were performed by
Dr. Robert N. Gould, an attending Board-certified orthopedic surgeon.
By letter dated February 1, 2006, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Thomas J.
Sabourin, a Board-certified orthopedic surgeon, for a second opinion medical examination. In a
February 9, 2006 medical report, Dr. Sabourin reviewed the history of appellant’s March 10,
1993 employment injury and medical background. On physical examination, he reported normal
range of motion of the cervical and lumbar spines. Regarding the right shoulder, Dr. Sabourin
reported 40 degrees of extension, 170 degrees of flexion, 150 degrees of abduction, 30 degrees of
adduction, 90 degrees of external rotation and 80 degrees of internal rotation. He stated that
appellant had normal range of motion of both elbows, wrists, hands, hips and feet. There was no
pain, swelling, effusion, tenderness, warmth, crepitus or instability. Dr. Sabourin reported 0
degrees of extension and 140 degrees of flexion for the right knee and the same measurements
for the left knee. He further reported his normal findings on neurological examination and
essentially normal findings on x-ray examination. Dr. Sabourin opined that appellant’s workrelated neck strain, right wrist sprain, right elbow strain and loose body and thoracic sprain had
essentially resolved, noting that minimal residuals continued in these areas. Appellant also had
residual symptoms of his right shoulder impingement and right knee problems. Dr. Sabourin
stated that all of his problems were permanent and stationary. He diagnosed right shoulder
impingement syndrome status post acromioplasty and excision of the distal clavicle and right
knee lateral meniscal tear status post two arthroscopic surgeries. Dr. Sabourin opined that the
diagnosed conditions were caused by the accepted March 10, 1993 employment injury. He
further opined that appellant’s preexisting thoracic spine problem was not aggravated by the
accepted employment injury. Noting appellant’s objective findings and subjective complaints,
Dr. Sabourin found that no formal physical therapy was necessary and that a gym membership
was sufficient in helping appellant with his chronic injuries. He further found that appellant
should continue to perform his limited-duty job as a lobby director at the employing
establishment and follow his restrictions which included sitting and standing for two hours with
rotation and lifting no more than 15 pounds. In questionnaires dated February 7, 2006,
Dr. Sabourin opined that appellant reached maximum medical improvement on that date with
regard to his right upper and right lower extremities. He indicated that he experienced moderate
1

Docket No. 96-1159 (issued May 22, 1998).

2

pain in the right upper extremity and mild pain in the right lower extremity. Dr. Sabourin
concluded that appellant did not have any neurological involvement, weakness or atrophy in
either extremity.
In a report dated February 28, 2006, Dr. Gould stated that subjective factors of
appellant’s disability included weakness in the right shoulder, right elbow and right knee and
sometimes mild pain on an intermittent basis in these joints. Objective factors of his disability
included a well-healed anterior shoulder incision and arthroscopic portals of the right elbow.
Dr. Gould reported normal range of motion of the right elbow and right knee. Appellant had 30
degrees of abduction and forward flexion of the right shoulder which caused discomfort. On
neurosensory examination, Dr. Gould reported that the upper and lower extremities were within
normal limits. The knee was stable to varus and valgus stress anteriorly and posteriorly. The
elbow was ligamentously stable and intact.
On April 5, 2006 appellant filed a claim (Form CA-7), for a schedule award.
On April 6, 2006 Dr. Leonard A. Simpson, an Office medical adviser, reviewed the
medical evidence. Based on Dr. Sabourin’s findings, Dr. Simpson determined that appellant’s
complaints of continuing right shoulder symptoms represented a Grade 3 level of sensory or pain
deficit based on Table 16-10 on page 482 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001). He stated that this level
of pain or altered sensation may interfere with activities. Sixty percent of the the maximum 5
percent impairment of the axillary nerve constituted a 3 percent impairment for pain factors
(A.M.A., Guides 492, Table 16-15). Dr. Simpson determined that appellant sustained a 10
percent impairment for his distal clavicle excision (A.M.A., Guides 506, Table 16-27). With
regard to range of motion of the right shoulder, he determined that 170 degrees of forward
flexion constituted a one percent impairment (A.M.A., Guides 476, Figure 16-40), 150 degrees
of abduction and 30 degrees of adduction each constituted a one percent impairment (A.M.A.,
Guides 477, Figure 16-43), 90 degrees of external rotation and 80 degrees of internal rotation
each constituted a zero percent impairment (A.M.A., Guides 479, Figure 16-46) and 40 degrees
of extension constituted a one percent impairment (A.M.A., Guides 476, Figure 16-40), totaling
four percent impairment. Dr. Simpson found that appellant had full range of motion of the elbow
and wrist which constituted zero percent impairment. He stated that the records did not describe
any upper extremity weakness and atrophy. Dr. Simpson combined the 3 percent impairment for
pain/sensory deficit, 4 percent impairment for limited range of motion and 10 percent
impairment for a distal clavicle excision to rate a total 16 percent impairment to the right upper
extremity (A.M.A., Guides, 604-6, Combined Values Chart). He concluded that appellant
reached maximum medical improvement on June 5, 2002 two years from the date of his last
shoulder surgery.
Regarding the right lower extremity, Dr. Simpson determined that appellant’s subjective
complaints of right knee pain following surgery on November 8, 1993 and January 24, 2001
constituted a Grade 3 level of pain (A.M.A., Guides, 482, Table 16-10).2 He stated that this pain
2

Table 16-10, page 482 of the fifth edition of the A.M.A., Guides is entitled Determining Impairment of the
Upper Extremity Due to Sensory Deficits or Pain Resulting from Peripheral Nerve Disorders. According to
paragraph 17.2l, page 550 of the A.M.A., Guides, partial sensory deficits of the lower extremities are calculated as
in the upper extremity as set forth in Table 16-10.

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or altered sensation may interfere with activities. Sixty percent of the maximum 7 percent
impairment of the femoral nerve constituted a 4.2 or 4 percent impairment for pain (A.M.A.,
Guides 552, Table 17-37). Dr. Simpson stated that, although appellant had reduced range of
motion of the right knee from 0 to 140 degrees, he sustained 0 percent impairment (A.M.A.,
Guides 537, Table 17-10). Since the records did not indicate atrophy or weakness, he
determined that appellant did not have any impairment for these conditions. Dr. Simpson
concluded that appellant sustained a four percent impairment of the right lower extremity. He
also calculated appellant’s right lower extremity impairment utilizing the diagnosis-based
estimates of the A.M.A., Guides. Dr. Simpson found that appellant’s partial medial and partial
lateral meniscectomies constituted a 10 percent impairment (A.M.A., Guides 546, Table 17-33).
He determined that the finding of some mild narrowing of the medial compartment constituted a
seven percent impairment of the joint space narrowing (A.M.A., Guides 544, Table 17-31).
Dr. Simpson combined the 10 percent impairment for partial medial and lateral meniscectomies
and 7 percent impairment for mild medial joint compartment narrowing to calculate a 16 percent
impairment of the right lower extremity (A.M.A., Guides, 604-6, Combined Values Chart).
Dr. Simpson concluded that appellant reached maximum medical improvement on January 24,
2002, one year after his knee surgery on January 24, 2001.
On April 25, 2006 appellant filed another CA-7 claim for a schedule award.
By decisions dated May 2, 2006, the Office granted appellant a schedule award for a 16
percent impairment of the right upper extremity and a 16 percent impairment of the right lower
extremity based on Dr. Simpson’s April 6, 2006 opinion.
In a letter dated May 30, 2006, appellant requested an oral hearing before an Office
hearing representative.
By decision dated December 29, 2006, an Office hearing representative affirmed the
May 2, 2006 decisions based on a review of the written record.3 He found that appellant did not
have more than a 16 percent impairment to the right upper extremity and a 16 percent
impairment of the right lower extremity previously awarded. The hearing representative
determined that the weight of the evidence rested with the Office medical adviser.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation to be paid for
3

In his May 30, 2006 request for a hearing, appellant indicated with a checkmark that he was open to a
teleconference if this was deemed suitable by the Office. By letter dated September 7, 2006, the Office advised him
that a telephone hearing was scheduled for October 5, 2006 at 11:15 a.m. Eastern Standard time. Appellant advised
the Office at the approximate time of the hearing that he was unable to participate in the telephone conference. The
hearing representative attempted to contact him on the next day, but was unable to do so. Since appellant failed to
participate in the telephone hearing, the hearing representative conducted a review of the written record.
4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

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20 C.F.R. § 10.404.

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permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.6 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.7
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be reviewed by an Office medical adviser for an opinion concerning the nature and
percentage of any impairment.8
ANALYSIS
The Board finds that appellant has not established that he has more than a 16 percent
impairment of the right upper extremity. However, the medical evidence establishes a 19 percent
impairment of the right lower extremity. Regarding the right shoulder, appellant underwent an
open acromioplasty and a Mumford procedure which were performed on December 13, 1993 and
arthroscopic subacromial decompression and another Mumford procedure which were performed
on June 5, 2000. Regarding the right knee, he underwent a partial posterior horn medial
meniscectomy, a partial posterior horn lateral meniscectomy and a plica resection with patella
debridement and synovectomy which were performed on November 8, 1993 and
January 24, 2001.
In a February 28, 2006 report, Dr. Gould, an attending physician, found that subjective
factors of appellant’s disability included weakness in the right shoulder, right elbow and right
knee and sometimes mild pain on an intermittent basis in these joints. Objective factors of his
disability included a well-healed anterior shoulder incision and arthroscopic portals of the right
elbow. Dr. Gould reported normal range of motion of the right elbow and right knee, 30 degrees
of abduction and forward flexion of the right shoulder which caused discomfort. He reported
that the upper and lower extremities were within normal limits on neurosensory examination.
The knee was stable to varus and valgus stress anteriorly and posteriorly. The elbow was
ligamentously stable and intact. Dr. Sabourin, an Office referral physician, provided in a
February 9, 2006 report that appellant had 40 degrees of extension, 170 degrees of flexion, 150
degrees of abduction, 30 degrees of adduction, 90 degrees of external rotation and 80 degrees of
internal rotation of the right shoulder. With regard to the right knee, he reported 0 degrees of
extension and 140 degrees of flexion. However, neither Dr. Gould nor Dr. Sabourin provided an
impairment rating based on the tables and figures of the A.M.A., Guides. Therefore, the Board
finds that their reports are insufficient to establish that appellant has more than a 16 percent
impairment to the right shoulder and a 16 percent impairment to the right knee.

6

5 U.S.C. § 8107(c)(19).

7

20 C.F.R. § 10.404.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).

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Dr. Simpson, an Office medical adviser, reviewed Dr. Sabourin’s findings. He
determined that appellant’s complaints of continuing right shoulder symptoms constituted a
maximal Grade 3 level of pain or sensory deficit which may interfere with activities or 60
percent grade of the maximum 5 percent impairment allowed for the axillary nerve which
constituted a 3 percent impairment for pain factors (A.M.A., Guides 482, 492,
Tables 16-10, 16-15). Dr. Simpson further determined that appellant sustained a 10 percent
impairment for his distal clavicle excision (A.M.A., Guides 506, Table 16-27). He found that
170 degrees of forward flexion constituted a one percent impairment (A.M.A., Guides 476,
Figure 16-40), 150 degrees of abduction and 30 degrees of adduction each constituted a one
percent impairment (A.M.A., Guides 477, Figure 16-43), 90 degrees of external rotation and 80
degrees of internal rotation each constituted a zero percent impairment (A.M.A., Guides 479,
Figure 16-46) and 40 degrees of extension constituted a one percent impairment (A.M.A.,
Guides, 476, Figure 16-40), totaling a four percent impairment. Dr. Simpson found that
appellant had full range of motion of the elbow and wrist and there was no evidence of upper
extremity weakness and atrophy which constituted zero percent. He combined the 3 percent
impairment for pain, 4 percent impairment for limited range of motion and 10 percent
impairment for a distal clavicle excision to calculate a 16 percent impairment of the right upper
extremity (A.M.A., Guides, 604-6, Combined Values Chart).
Regarding the right lower extremity, Dr. Simpson determined that appellant’s subjective
complaints of right knee pain following surgery on November 8, 1993 and January 24, 2001
constituted a Grade 3 level of pain which may interfere with activities or 60 percent of the
maximum 7 percent impairment allowed for the femoral nerve, representing a 4 percent
impairment for pain and sensory loss (A.M.A., Guides, 552, Table 17-37). He stated that,
although appellant had reduced range of motion of the right knee from 0 to 140 degrees, he
sustained a zero percent impairment (A.M.A., Guides 537, Table 17-10). Dr. Simpson found
that appellant had no atrophy or weakness and, thus, he had zero percent impairment. He
concluded that appellant sustained a four percent impairment of the right lower extremity based
on sensory loss. Dr. Simpson also calculated appellant’s impairment utilizing diagnosis-based
estimates of the A.M.A., Guides. He determined that his partial medial and partial lateral
meniscectomies constituted a 10 percent impairment (A.M.A., Guides 546, Table 17-33).
Dr. Simpson further determined that the finding of some mild narrowing of the medial
compartment constituted a seven percent impairment of the joint space narrowing (A.M.A.,
Guides 544, Table 17-31). He combined the 10 percent impairment for partial medial and lateral
meniscectomies and 7 percent impairment for mild medial joint compartment narrowing to
calculate a 16 percent impairment of the right lower extremity (A.M.A., Guides, 604-6,
Combined Values Chart). The Board notes, however, that Table 17-2, the cross usage chart,
does not preclude combining the sensory (pain) impairment with the loss due to arthritis and the
diagnosed based estimates. Combining the 4 percent sensory loss with 16 percent results in a
total 19 percent loss to the right lower extremity.
Dr. Simpson applied the A.M.A., Guides and provided rationale for rating 16 percent
impairment of the right upper extremity. The Board finds 19 percent impairment of the right
lower extremity.

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CONCLUSION
The Board finds that appellant has no more than a 16 percent impairment to the right
upper extremity and a 19 percent impairment to the right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 29 and May 2, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: February 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ALABAMA AIR NATIONAL GUARD,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 16-0526
Issued: May 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 27, 2016 appellant filed a timely appeal from a November 18, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a ratable hearing loss warranting a
schedule award; and (2) whether OWCP properly denied hearing aids.
FACTUAL HISTORY
On September 30, 2014 appellant, then a 56-year-old aircraft maintenance coordinator,
filed an occupational disease claim (Form CA-2) alleging that he sustained bilateral hearing loss
1

5 U.S.C. § 8101 et seq.

as a result of noise from jet engines, aircrafts, and equipment. He advised that he first became
aware of his condition and its relation to his federal employment on January 17, 2014.
By letter dated October 8, 2014, OWCP notified appellant of the type of evidence needed
to establish his claim.
In a September 30, 2014 statement, appellant advised that he had been employed by the
employing establishment since 1986. He indicated that he was exposed to the noise of aircrafts,
commercial and private jet engines, ground equipment, generators, air compressors, air
conditioners, and heaters for eight and a half hours per day, four days per week. Appellant noted
that he used hearing protection. His supervisor signed to indicate that the assertions made by
appellant were factual to his knowledge.
Several audiograms from the employing establishment were submitted. A March 19,
2014 audiogram recorded losses of 5, 5, 5, and 25 in the left ear and 5, 5, 15, and 30 in the right
ear at the levels of 500, 1,000, 2,000, and 3,000 hertz (Hz).2
On November 19, 2014 OWCP referred appellant, together with a statement of accepted
facts (SOAF), to Dr. Jack Aland, a Board-certified otolaryngologist, for a second opinion. In a
December 10, 2014 report, Dr. Aland reviewed the SOAF and opined that appellant had sloping
bilateral sensorineural hearing loss. He opined that appellant’s workplace exposure was
sufficient in length and severity to cause his hearing loss. Dr. Aland recommended bilateral
hearing aids. An accompanying December 10, 2014 audiogram tested hearing at 500, 1,000,
2,000, and 3,000 Hz and recorded decibel losses of 10, 10, 10, and 40 in the left ear. Testing at
the same levels for the right ear recorded decibel losses of 10, 10, 25, and 35.
By report dated January 8, 2015, an OWCP medical adviser, after reviewing the record,
opined that appellant’s hearing loss was causally related to his federal employment. He found
that appellant’s hearing impairment was not ratable for schedule award purposes and opined that
hearing aids should not be authorized.
By decision dated January 9, 2015, OWCP accepted appellant’s claim for bilateral
hearing loss. It denied appellant’s claim for a schedule award, however, because hearing loss
was not severe enough to be considered ratable. OWCP also found that the weight of the
medical evidence established that he would not benefit from hearing aids.
On February 4, 2015 appellant requested an oral hearing which was held on
September 2, 2015. Appellant advised that he had a consultation with Dr. Aland subsequent to
his second opinion examination. He noted that Dr. Aland had diagnosed high frequency hearing
loss and reiterated his need for hearing aids. Appellant indicated that he sought another hearing
examination from a different physician who also determined that he had high frequency hearing
loss.
In a September 10, 2015 report, Dr. Aland advised that appellant complained of constant
tinnitus which was affecting his concentration and limiting his quality of life. He noted that
2

These audiograms were not certified by a physician.

2

appellant had significant high frequency hearing loss that was a bit worse than when he was
previously tested 10 months prior. Dr. Aland reiterated that he believed appellant would benefit
from hearing aids as his hearing loss was worsening and would not improve. An accompanying
September 10, 2015 audiogram tested decibel losses at 500, 1,000, 2,000, and 3,000 Hz and
recorded losses of 15, 15, 15, and 45 in the left ear. Testing at the same levels for the right ear
recorded decibel losses of 15, 15, 25, and 35.
A September 17, 2015 note from John Stevenson of the Pattillo Balance & Hearing
Center advised that appellant underwent a hearing screening on February 19, 2015. The
accompanying audiogram tested decibel losses at 500, 1,000, 2,000 and 3,000 hertz and recorded
losses of 10, 15, 20, and 35 in the left ear. Testing at the same levels for the right ear recorded
decibel losses of 10, 20, 30, and 35.3
By decision dated October 27, 2015, an OWCP hearing representative remanded the case
for a de novo decision regarding whether appellant was entitled to a schedule award and hearing
aids. It found that Dr. Aland’s latest audiogram should be reviewed by a medical adviser to
determine whether there was entitlement to a schedule award and that the medical advisor should
also provide explanation as to why appellant’s hearing impairment did not warrant hearing aids.
By report dated November 2, 2015, an OWCP medical adviser, after reviewing the
record, opined that appellant did not have ratable hearing loss. Using the results from the
December 10, 2014 audiogram, he found that appellant’s hearing impairment was not ratable for
schedule award purposes. OWCP medical adviser also opined that hearing aids should not be
authorized as appellant’s hearing loss was not compensable.
By decision dated November 18, 2015, OWCP denied appellant’s claim for a schedule
award because his hearing loss was not severe enough to be considered ratable. It also found that
the weight of medical evidence established that he would not benefit from hearing aids.
On appeal appellant disputes the use of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter
A.M.A., Guides)4 as his exposure occurred prior to 2009 when it took effect and does not take
into account the negligence of the employing establishment in not issuing proper personal
protective equipment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
3

This audiogram was not certified by a physician.

4

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

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single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP for evaluating scheduled loss and the Board has
concurred in such adoption.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.6 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. 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 and then added to the greater loss and the total is divided by six
to arrive at the amount of the binaural hearing loss.7 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.8
ANALYSIS -- ISSUE 1
The Board finds that the evidence of record does not establish that appellant sustained
ratable hearing loss for schedule award purposes.
The OWCP medical adviser properly applied OWCP’s standardized procedures to the
December 10, 2014 audiogram obtained by Dr. Aland. The December 10, 2014 audiogram
certified by Dr. Aland does not establish a ratable hearing loss. According to OWCP’s
procedures, testing at frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed hearing
losses in the right ear of 10, 10, 25, and 35. These totaled 80 decibels which, when divided by
four, produced an average hearing loss of 20 decibels. The average of 20 decibels when reduced
by 25 decibels (the first 25 decibels are discounted as discussed above), equals zero and which,
when multiplied by the established factor of 1.5 produced zero percent hearing loss in appellant’s
right ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed
hearing losses in the left ear of 10, 10, 10, and 40. These totaled 70 decibels which when divided
by four, produced an average hearing loss of 17.5 decibels. The average hearing loss of 20
decibels, when reduced by 25 decibels (the first 25 decibels are discounted as discussed above),
equals zero which, when multiplied by the established factor of 1.5, produced a zero percent
hearing loss in appellant’s left ear.
In its October 27, 2015 decision, an OWCP hearing representative remanded the case for
evaluation of Dr. Aland’s September 10, 2015 audiogram which showed worsening hearing loss.
In his report November 2, 2015 report, the medical adviser failed to follow the instructions on
5

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

6

See A.M.A., Guides 250.

7

Id. at 251.

8

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

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remand and evaluated the initial December 10, 2014 audiogram as opposed to the September 10,
2015 audiogram. His mistake, however, amounts to harmless error, as appellant’s hearing loss
was still not severe enough to be considered ratable. Using the September 10, 2015 audiogram,
testing at frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed hearing losses in the right
ear of 15, 15, 25, and 35. These totaled 90 decibels which, when divided by four, produced an
average hearing loss of 22.5 decibels. The average of 20 decibels when reduced by 25 decibels
(the first 25 decibels are discounted as discussed above), equals zero and which, when multiplied
by the established factor of 1.5, produced a zero percent hearing loss in appellant’s right ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed hearing
losses in the left ear of 15, 15, 15, and 45. These totaled 90 decibels which, when divided by
four, produced an average hearing loss of 22.5 decibels. The average hearing loss of 20 decibels,
when reduced by 25 decibels (the first 25 decibels are discounted as discussed above), equals
zero which, when multiplied by the established factor of 1.5, produced a zero percent hearing
loss in appellant’s left ear. Consequently, appellant has not established a ratable hearing loss
under OWCP’s standardized procedures for rating hearing loss.
On appeal appellant disputes the use of the sixth edition of the A.M.A., Guides as his
exposure occurred prior to 2009 when it took effect. He further contends that the sixth edition
does not take into account the negligence of the employing establishment in failing to issue
proper personal protective equipment. On March 15, 2009 the Director of OWCP exercised his
statutory authority to determine that all schedule award decisions after May 1, 2009 should
reflect use of the sixth edition of the A.M.A., Guides. The applicable edition of the A.M.A.,
Guides is determined as of the date that the schedule award decision reached. It is not
determined by either the date of MMI or when the claim for such award was filed.9 Based on the
findings and reasons stated above, the Board finds that appellant has not established that he has a
ratable hearing loss and, as such, a schedule award is not warranted.
LEGAL PRECEDENT -- ISSUE 2
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 of the period of disability, or aid in lessening the amount of monthly compensation.10
OWCP must therefore exercise discretion in determining whether the particular service,
appliance, or supply is likely to affect the purposes specified in FECA.11 Following medical
evaluation of a claim, if the hearing loss is determined to be non-ratable for schedule award

9

See J.D., Docket No. 11-427 (issued November 14, 2011); R.W., Docket No. 11-456 (issued September 28,
2011); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010). Furthermore, the Board notes that the formula for rating hearing loss did not change in the sixth
edition of the A.M.A., Guides. Compare pages 250-51 of the sixth edition of the A.M.A., Guides, with page 250 of
the fifth edition of the A.M.A., Guides (5th ed. 2001) regarding the formula for rating hearing loss.
10

5 U.S.C. § 8103. Thomas W. Stevens, 50 ECAB 288 (1999).

11

Id.

5

purposes, other benefits such as hearing aids may still be payable if any employment-related
hearing loss exists.12
ANALYSIS -- ISSUE 2
The Board finds that this issue is not in posture for decision on whether appellant is
entitled to hearing aids.
The Board has held that, following medical evaluation of a claim, if the hearing loss is
determined to be nonratable for schedule award purposes, other benefits such as hearing aids
may still be provided if any causally related hearing loss exists.13 Dr. Aland opined that
appellant would benefit from hearing aids as his hearing was worsening and would not improve.
The medical adviser in his November 2, 2015 report opined that hearing aids should not be
authorized as appellant had no compensable hearing loss. He provided no other explanation for
precluding authorization of hearing aids. Based on this, OWCP found that appellant was not
entitled to hearing aids based on the weight of the medical evidence. As noted above, a claimant
may still be entitled to hearing aids even if his hearing is determined to be nonratable for
schedule award purposes.14 Therefore, OWCP did not provide an adequate justification as to
why appellant was not entitled to hearing aids.
The Board notes that proceedings under FECA are not adversarial in nature. OWCP
shares in the responsibility to develop the evidence and has an obligation to see that justice is
done.15 Accordingly, the case will be remanded to OWCP for further development on the
question of whether appellant is entitled to hearing aids for his employment-related hearing loss.
Following this and such other development as deemed necessary, it shall issue an appropriate
merit decision regarding appellant’s entitlement to hearing aids.
CONCLUSION
The Board finds that appellant did not establish that he had a ratable hearing loss entitling
him to a schedule award. The Board also finds that the case is not in posture for decision
regarding whether OWCP should authorize hearing aids.

12

See K.S., Docket No. 13-154 (issued April 17, 2013).

13

See Raymond VanNett, 44 ECAB 480 (1993); J.O., Docket No. 14-1359 (issued November 20, 2014).

14

Supra note 12.

15

See Lyle E. Dayberry, 49 ECAB 369 (1998). See also Raymond VanNett, id.

6

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2015 decision of OWCP is
affirmed in part, set aside in part, and remanded for further action consistent with this decision.
Issued: May 13, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
TENNESSEE VALLEY AUTHORITY, WATTS
BAR NUCLEAR PLANT, Chattanooga, TN,
Employer
__________________________________________

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

Docket No. 12-672
Issued: August 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 6, 2012 appellant filed a timely appeal from an August 10, 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.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment in the amount of $8,366.89; (2) whether it properly denied waiver of the
overpayment; and (3) whether OWCP properly found the overpayment should be recovered by
deducting $250.00 every four weeks from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 1981 appellant, a sheet metal worker, sustained a traumatic injury in the
performance of duty. OWCP accepted the claim for left ankle sprain with chronic synovitis.2
Appellant returned to work as an engineering aid on July 29, 1991. In a formal loss of
wage-earning capacity (LWEC) decision dated March 2, 1992, OWCP reduced his compensation
benefits to reflect his actual wages in that capacity. During appellant’s modified employment,
the employing establishment made appropriate deductions for basic life insurance.
Appellant stopped working for the employing establishment on February 12, 1996 when
he took a job in the private sector. By letter dated June 26, 1996, the Office of Personnel
Management (OPM) notified OWCP and appellant that he was eligible to continue basic life
insurance coverage and that premiums were to be deducted effective February 12, 1996. The
record reflects, however, that OWCP did not deduct life insurance premiums from appellant’s
compensation payments until May 7, 2011.
On August 7, 2007 appellant informed OWCP by telephone that life insurance premiums
were not being withheld from his compensation payments. On January 6 and February 11, 2011
he made follow-up telephone calls requesting information regarding his life insurance
deductions. In a letter dated February 18, 2011, appellant informed OWCP that he had been
attempting for years to find out why life insurance premiums had not been deducted from his
compensation, contending that he should not have to “pay back time” in order to receive
insurance.
In a letter dated March 31, 2011, OWCP informed appellant that there had been an
underwithholding of life insurance premiums and that the entire amount was deemed an
overpayment of compensation. It enclosed copies of his Life Insurance Election form (dated
February 15, 1982) and the FEGLI transfer letter from OPM (dated June 25, 1996), requesting
that appellant complete enclosed forms if he wished to continue his life insurance coverage.
Appellant was instructed that he should notify OWCP in writing should he no longer want life
insurance.
The record contains a FEGLI life insurance election form, dated April 10, 2011, whereby
appellant elected Option B (additional coverage) in the amount of five times his pay. In a FEGLI
designation of beneficiary form dated April 10, 2011, appellant designated his wife as the sole
beneficiary of his policy.
By letter dated June 13, 2011, OWCP advised appellant of a preliminary determination
that an overpayment of $8,366.89 had occurred, due to the fact that no deductions for basic life

2

This is the second time this case has been before the Board. In a decision dated November 4, 1997, the Board
affirmed OWCP’s June 4, 1996 overpayment decision. The Board also set aside OWCP’s August 13, 1996
nonmerit decision finding that appellant had made an untimely request for reconsideration of a March 2, 1992 wageearning capacity decision and remanded the case for a determination as to whether the wage-earning capacity
decision should be modified. Docket No. 97-640 (issued November 4, 1997).

2

insurance premiums had been made from February 12, 1996 through May 7, 2011.3 Appellant
was found not to be at fault in creating the overpayment. OWCP included an overpayment
recovery questionnaire (Form OWCP-20) and advised appellant to submit supporting financial
evidence within 30 days on the issue of waiver of the overpayment.
On July 7, 2011 appellant submitted a request for review of the written record,
contending that he had not received an overpayment because he did not receive life insurance
after he left the employing establishment. He submitted an overpayment recovery questionnaire
and supporting documents reflecting monthly income in the amount of $4,918.00 and monthly
expenses in the amount of $4,588.00. Assets included a checking account in the amount of
$400.00.4
By decision dated August 10, 2011, an OWCP hearing representative finalized the
overpayment of $8,366.89. Although appellant was not at fault in the creation of the
overpayment, he was not entitled to waiver because recovery would neither defeat the purpose of
FECA nor be against equity and good conscience.5 The hearing representative found that
appellant’s monthly income was $5,014.88, (OWCP compensation benefits, social security
benefits and private pension in the respective amounts of $1,256.00, $3,171.00 and $587.00) and
monthly expenses totaled $4,300.71. Noting that appellant had a positive monthly cash flow of
$714.17, he found that the overpayment would be recovered by deducting $250.00 every four
weeks from appellant’s continuing compensation payments and that such recovery would not
defeat the purposes of FECA or be against equity and good conscience.6
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in BLI and one or more of the
options.7 The coverage for basic life is effective unless waived8 and premiums for basic and
optional life coverages are withheld from the employee’s pay.9
3

The claims examiner calculated the unpaid premiums as follows: From February 12, 1996 through February 11,
2003 -- (Option A: $150.63; Option B: $2,244.31); February 12, 2003 through January 30, 2008 -- (Option A:
$175.69; Option B: $2,459.59); February 1, 2008 through May 7, 2011 -- (Option A: $215.42; Option B:
$3,121.25), for a total of $8,366.89.
4

Appellant listed his monthly income as follows: social security -- $3,171.00; OWCP -- $1,160.00; wife’s
retirement -- $587.00. Monthly expenses were identified as follows: food -- $800.00; clothing -- $300.00; rent -722.00; electricity -- $260.00; water -- $60.00; telephone -- $161.00; loan payment -- 165.71; gas -- $200.00; car
loans -- $575.00; cable -- $116.00; school -- $180.00; household expenses -- $150.00; car insurance -- $76.00; life
insurance -- $300.00; First South loan -- $284.00; Quality First loan -- $105.00; Hobby Furniture -- $50.00; dentist
-- $50.00; hospital -- $100.00; Weinstein -- $100.00. ($4,754.00).
5

The hearing representative found that appellant’s monthly income exceeded his expenses by more than $500.00.

6

The claims examiner noted that the figures provided by appellant reflected a positive monthly cash flow in
excess of $500.00.
7

5 C.F.R. § 870.201.

8

Id. at § 870.204(a).

9

Id. at § 870.401(a).

3

FECA and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue BLI coverage without cost under certain circumstances10
and may also retain the OLI.11 At separation from the employing establishment, the FEGLI
insurance will either terminate or be continued under compensationer status.12 If the
compensationer chooses to continue BLI and OLI insurance coverage, the schedule of
deductions made while the compensationer was an employee will be used to withhold premiums
from his or her compensation payments.13 Thus while receiving disability compensation in lieu
of retirement benefits, the former employee is responsible for all insurance premiums.14
ANALYSIS -- ISSUE 1
The record establishes that appellant elected basic life insurance coverage. As noted, he
is responsible for payment of the premiums and the premiums must be deducted from his
compensation payments. The compensation payments from February 12, 1996 through May 7,
2011 did not include any deductions for BLI premiums. Therefore, an overpayment of
compensation has been established.
As to the amount, OWCP provided an explanation as to its calculations. For the period
February 12, 1996 through May 7, 2011, appellant owed $8,366.89 in BLI premiums. Since no
deductions were made for BLI premiums during this period, this entire amount is an
overpayment of compensation. The Board finds an overpayment of $8,366.89.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.15 Since OWCP found appellant to be without fault in the creation of the
overpayment, it may recover the overpayment only if recovery would neither defeat the purpose
of FECA nor be against equity and good conscience. The guidelines for determining whether
recovery of an overpayment would defeat the purpose of FECA or would be against equity and
good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of Federal
Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses, and, also, if the beneficiary’s assets do not exceed a specified amount as
10

Id. at § 870.701, subpart G.

11

Id. at § 871.201, subpart B; 8702.201, subpart B; 873.203, subpart B.

12

Id. at § 870.501.

13

Id. at § 872.410, subpart D.

14

Scherri L. Stanley, 53 ECAB 433 (2002).

15

5 U.S.C. § 8129(b).

4

determined by OWCP from data provided by the Bureau of Labor Statistics.16 For waiver under
the defeat the purpose of FECA standard, appellant must show that she needs substantially all of
her current income to meet current ordinary and necessary living expenses, and that his assets do
not exceed the resource base.17
Title 20 Code of Federal Regulations 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 in attempting to repay the
debt; and when an individual, in reliance on such payments or on notice that such payments
would be made, gives up a valuable right or changes his or her position for the worse.18
ANALYSIS -- ISSUE 2
The fact that appellant is without fault in creating the overpayment does not preclude
OWCP from collecting the overpayment. Appellant is still required to repay the debt unless:
(1) recovery of the overpayment would defeat the purpose of FECA; or (2) recovery of the
overpayment would be against equity and good conscience as set forth in 20 C.F.R. §§ 10.434
and 10.437. Although appellant inquired about the withholding of his basic life premiums in
1997 and 2011, this does not negate his obligation of the overpayment.
In determining that he was not entitled to a waiver of the recovery of the overpayment,
OWCP reviewed appellant’s income, expenses and assets as listed in his July 7, 2011
overpayment recovery questionnaire. Based on the figures and financial documentation supplied
by appellant, the claims examiner found that his monthly household income was $5,014.88,
(OWCP compensation benefits, social security benefits and private pension in the respective
amounts of $1,256.00, $3,171.00 and $587.00) and monthly expenses totaled $4,300.71, leaving
appellant with a positive monthly income of $714.17. The Board notes that OWCP’s
calculations differed from appellant’s, which would provide appellant a positive monthly cash
flow of $500.00. OWCP procedures, however, provide that an individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living
expenses if monthly income does not exceed monthly expenses by more than $50.00.19
Therefore, as appellant’s monthly income exceeds his monthly expenses by $714.17 according to
OWCP’s calculations, or $500.00 according to appellant’s calculations, he is not entitled to
waiver as he does not need substantially all of his income to meet current ordinary and necessary
expenses.
There is no evidence in this case, and appellant did not allege, that he relinquished a
valuable right or changed his position for the worse in reliance on the excess compensation he
16

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).
17

See Robert E. Wenholz, 38 ECAB 311 (1986).

18

20 C.F.R. § 10.437 (1999).

19

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(3) (October 2004).

5

received for the period in question. Pursuant to its regulations, OWCP, therefore, properly found
that recovery of the overpayment would not be against equity or good conscience. When an
underwithholding of life insurance premiums occurs, the entire amount is deemed an
overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.20
As the evidence in this case fails to support that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the overpayment of
$8,366.89.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide that, when an overpayment has been made to an individual
who is entitled to further payments, the individual shall refund to OWCP the amount of the
overpayment as soon as the error is discovered or his or her attention is called to same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual and any other relevant factors, so as to minimize any hardship.21
ANALYSIS -- ISSUE 3
With respect to the $250.00 withheld from appellant’s continuing compensation
payments to recoup the amount of the outstanding payment, OWCP’s regulations note the factors
to be considered in determining repayment from continuing compensation.22 The implementing
regulations provide that OWCP must take into account the probable extent of future payments,
the rate of compensation, the financial circumstances of the individual and any other relevant
factors, so as to minimize any hardship.23
OWCP found that recovery of the overpayment would be made by an adjustment against
continuing compensation at the rate of $250.00 per payment. It is appellant’s responsibility to
provide information about income, expenses and assets.24 The financial evidence indicated that
his monthly income exceeded his expenses by $500.00 using appellant’s calculations and that he
has assets in the amount of $500.00. Based on the evidence, OWCP took relevant evidence into
account so as to minimize hardship in recovering the overpayment. The Board finds that it

20

Keith H. Mapes, 56 ECAB 130 (2004).

21

20 C.F.R. § 10.441.

22

Id.; see Fred A. Cooper, Jr., 44 ECAB 498 (1994).

23

Id.

24

20 C.F.R. § 10.441(a).

6

properly followed its regulations in this case and in determining that the $8,366.89 overpayment
could be recovered by deducting $250.00 from appellant’s continuing compensation payments.25
CONCLUSION
The Board finds that appellant received an overpayment of $8,366.89 during the period
February 12, 1996 through May 7, 2011 and OWCP properly denied waiver of the recovery of
the overpayment. The Board further finds that OWCP also properly directed recovery of the
overpayment by deducting $250.00 every 28 days from continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 10, 2011 is affirmed.
Issued: August 24, 2012
Washington, DC

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

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

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

25

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(c)(3) and 6.200.4.d(1)(b) (May 2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, RICON STATION
POST OFFICE, Tucson, AZ, Employer
__________________________________________

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

Docket No. 21-1087
Issued: March 1, 2022

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 July 12, 2021 appellant, through counsel, filed a timely appeal from a June 1, 2021
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated May 6, 2021, which became final after 30 days of
issuance and is not subject to further review. 2 As there was no merit decision on the underlying
issue of suitable work by OWCP within 180 days of the filing of this appeal, 3 pursuant to the

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

20 C.F.R. § 501.6(d); see J.R., Docket No. 19-0364 (issued July 3, 2019); see A.F., Docket No. 18-0645 (issued
October 26, 2018).
3

Counsel did not appeal a March 25, 2021 OWCP merit decision, which denied appellant’s claim for a schedule
award. As counsel did not appeal from that decision, it is not presently before the Board. See 20 C.F.R. § 501.3.

Federal Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 5 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 8, 2016 appellant, then a 55-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a hand condition causally related to factors of her
federal employment, including repeated trauma caused by casing and carrying mail. OWCP
accepted the claim for right hand synovitis and tenosynovitis, and primary osteoarthritis of the
right hand. 6 It paid appellant wage-loss compensation on the supplemental rolls effective
October 29, 2016, and on the periodic rolls effective, April 2, 2017.
By decision dated October 3, 2019, OWCP terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits, effective October 3, 2019, based on her refusal of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It explained that Dr. Michael A. Steingart,
OWCP’s second opinion physician, an osteopathic physician specializing in sports medicine
provided a well-reasoned opinion as to appellant’s current work limitations and the employing
establishment had offered her a job within those restrictions.
On October 14, 2019 appellant requested reconsideration of the October 3, 2019 decision.
She resubmitted medical evidence previously of record, including a November 9, 2017 narrative
report and a November 5, 2017 work capacity evaluation (Form OWCP-5c) from Dr. John R.
Klein, a Board-certified orthopedic surgeon.
On December 13, 2019 OWCP thereafter received a copy of a July 9, 2019 report from
Dr. Amit Sahasrabudhe, a Board-certified orthopedic surgeon. This report was previously
received by OWCP on October 1, 2019 but was not reviewed in OWCP’s decision dated
October 3, 2019.7

4

5 U.S.C. § 8101 et seq.

5

Docket No. 20-0676 (issued May 6, 2021).

6

Appellant was diagnosed with a concurrent nonindustrial injury to include a degenerative full-thickness central
perforation tear of the triangular fibrocartilage articular disc (TFCC) and had a right wrist arthroscopy with TFCC
debridement on January 3, 2017.
7

Also on December 13, 2019, OWCP issued a final overpayment determination, finding that appellant received an
overpayment of compensation in the amount of $1,028.45, for which she was at fault, for the period October 3
through 12, 2019 as she continued to receive wage-loss compensation following the termination of her benefits.

2

In a progress report dated December 20, 2019, Dr. Mark A. Braunstein, a Board-certified
orthopedic surgeon, related that appellant was seen in follow-up after a right wrist arthroscopic
procedure. He related that appellant had returned to work and was experiencing wrist pain when
working with a scanner. Dr. Braunstein concluded that appellant was doing well, with continued
pain on the ulnar side of her right wrist. 8
Appellant appealed to the Board on February 6, 2020.
OWCP subsequently received copies of medical reports previously of record, including
March 28 and November 5, and 9, 2017 reports from Dr. Klein, a May 4, 2018 report from
Dr. Braunstein, and the July 9, 2019 report from Dr. Sahasrabudhe. It also received a February 7,
2020 work status form, bearing an illegible signature, which indicated that appellant could return
to work on February 8, 2020.
Counsel also forwarded to OWCP a July 8, 2020 permanent impairment evaluation report
from Dr. Mesfin Seyoum, a family medicine specialist. In a report dated September 16, 2020,
Dr. Nathan Hammel, a Board-certified orthopedic surgeon acting as an OWCP medical adviser,
reviewed the record including Dr. Seyoum’s July 8, 2020 permanent impairment report.
On March 25, 2021 OWCP received duplicate copies of reports from Dr. Klein dated
November 5, 2017, and reports of Dr. Steingart dated November 13, 2018 and April 15, 2019,
previously of record.9
By decision dated May 6, 2021, the Board affirmed the October 3, 2019 termination
decision, finding that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award beneﬁts, effective October 3, 2019, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).10
On May 14, 2021 appellant, through counsel, requested reconsideration of the October 3,
2019 termination decision.
By decision dated June 1, 2021, OWCP denied appellant’s May 14, 2021 request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right. 11 OWCP has discretionary authority in this regard and has imposed certain

8

On February 11, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule award.

9

Also on March 25, 2021 OWCP denied appellant’s February 11, 2020 schedule award claim. See supra note 3.

10

The Board also affirmed in part and reversed in part the December 13, 2019 overpayment determination. Supra
note 5.
11

This section provides in pertinent part: The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 12 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 13
Upon receipt of a timely application, OWCP exercises its discretion in accordance with the
guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which
provides that a claimant may obtain review of the merits of his or her written request for
reconsideration, including all supporting documents, sets forth arguments and contain evidence
which either: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP. 14 Section 10.608(b)
provides that any request for reconsideration of the merits of the claim which does not meet at
least one of the requirements listed in section 10.606(b) will be denied by OWCP without review
of the merits of the claim. 15
ANALYSIS
The Board finds that the case is not in posture for decision.
Following the October 3, 2019 OWCP decision which terminated appellant’s
compensation benefits for refusal of suitable work, OWCP continued to receive additional medical
evidence, including a December 20, 2019 progress report by Dr. Braunstein and a February 7,
2020 work status form. However, it did not review or address this evidence in the June 1, 2021
decision.16
In the case of William A. Couch,17 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that OWCP reviewed any of the medical evidence
submitted after the October 3, 2019 decision.18
As the Board’s decisions are final with regard to the subject matter appealed,19 it is crucial
that all evidence relevant to the subject matter of the claim, which was properly submitted to
12

20 C.F.R. § 10.607.

13

See J.R., supra note 2; C.C., Docket No. 18-0316 (issued March 14, 2019); id. at § 10.607(a).

14

Id. at § 10.606(b)(3).

15

Id. at § 10.608(b). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 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). Id. at Chapter 2.1602.4b.
16

See D.B., Docket No. 21-0693 (issued November 9, 2021).

17

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

18

See T.G., Docket No. 19-1930 (issued January 8, 2021).

19

See 20 C.F.R. § 501.6(d).

4

OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 20
Because OWCP failed to consider all of the medical evidence submitted by appellant, the Board
cannot review such evidence for the first time on appeal. 21
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record.22 Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.23
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

20

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 17.
21

20 C.F.R. § 501.2(c)(1). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

22

See M.J., Docket No. 18-0605 (issued April 12, 2019).

23

B.N., Docket No. 17-0787 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Homewood, IL, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0313
Issued: September 4, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 28, 2018 appellant, through counsel, filed a timely appeal from a
September 26, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 19-0313.
This case has previously been before the Board. By decision dated July 7, 2014, the Board
affirmed OWCP’s termination of appellant’s wage-loss compensation benefits effective July 30,
2010, and found that she had not established employment-related disability after that date.2 By
decision dated September 15, 2016, the Board remanded the case to OWCP finding that evidence
presented on reconsideration was sufficient to warrant merit review on the issue of whether

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

Docket No. 14-0526 (issued July 7, 2014).

appellant established continuing disability.3 The facts and circumstances as set forth in the Board’s
prior decisions are incorporated herein by reference. The relevant facts are as follows.
Following the Board’s September 15, 2016 decision, OWCP issued a September 26, 2018
decision denying modification. It noted that counsel had maintained that Dr. Mukund Komanduri,
a Board-certified orthopedic surgeon, who performed an impartial medical evaluation on
February 1, 2010, and submitted reports dated March 8 and April 30, 2010, had not reviewed the
complete evidence of record, including four digital video discs (DVDs) of surveillance video.
OWCP continued that, after reviewing Dr. Komanduri’s reports, it was clear that he had reviewed
four DVDs before rendering his opinion. It concluded that the evidence presented was of
insufficient probative value to modify its prior decisions.
The DVDs at issue were obtained during the period from April 2, 2008 to March 16, 2009
by the employing establishment’s Office of the Inspector General (OIG). The integrated Federal
Employees’ Compensation System digital case record contains an April 3, 2009 physical evidence
receipt for four surveillance video DVDs obtained by the OIG. The surveillance DVDs allegedly
documented that appellant performed activities which exceeded the physical restrictions provided
by her treating physician. Moreover, the August 5, 2009 statement of accepted facts provided to
Dr. Komanduri referenced the DVDs. The four surveillance DVDs, however, are not included in
the case record transmitted to the Board.
Section 501.2(c) of the Board’s Rules of Procedure,4 provides that the Board has
jurisdiction “to consider and decide appeals from final decisions of OWCP in any case arising
under the [Federal Employees’ Compensation] Act.”5 Additionally, the Board’s review of the case
is limited to the evidence which was before OWCP at the issuance of the final decision.6 Since
the record as transmitted to the Board does not contain evidence that OWCP relied upon in
reaching its final decision, the Board is unable to properly “consider and decide” appellant’s claim.
The September 26, 2018 decision of OWCP, therefore, must be set aside7 and the case remanded
to OWCP for reconstruction and proper assemblage of the case record, including obtaining the
four above-referenced surveillance DVDs. Following this and such further development as OWCP
deems necessary, OWCP shall issue a de novo decision. Accordingly,

3

Docket No. 15-0659 (issued September 15, 2016).

4

20 C.F.R. § 501.2(c).

5

5 U.S.C. § 8101 et seq.

6

20 C.F.R. § 501.2(c)(1).

7

See W.M., Docket No. 17-1667 (issued March 8, 2018).

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IT IS HEREBY ORDERED THAT the September 26, 2018 decision is set aside and the
case is remanded to the Office of Workers’ Compensation Programs for proceedings consistent
with this order of the Board.
Issued: September 4, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, MARINA STATION,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 18-0327
Issued: August 17, 2018

Case Submitted on the Record

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

JURISDICTION
On December 4, 2017 appellant filed a timely appeal from a September 20, 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 to consider the merits of the claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability commencing February 11, 2015 causally related to an accepted December 5, 2008
employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2008 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on December 5, 2008, he injured his left knee while dragging
relay sacks while in the performance of duty. He stopped work on December 5, 2008.2
On December 8, 2008 the employing establishment issued an Authorization for
Examination and/or Treatment (Form CA-16) to the Multi-Specialty Medical Group. Medical
evidence received included a December 8, 2008 report with an illegible signature indicating that
appellant had left knee pain complaints. In an unsigned December 8, 2008 duty status report (Form
CA-17) a diagnosis of “sprain” caused by the December 5, 2008 employment incident was noted.
This report also related that appellant was able to return to full-duty work on December 9, 2008.
The record contains multiple California workers’ compensation form reports from
Dr. Robert Ferretti, a Board-certified orthopedic surgeon. In a January 30, 2009 report, Dr. Ferretti
indicated that appellant had bilateral knee pain. He stated that appellant developed pain in his left
knee on December 5, 2008 while pulling sacks of mail. Dr. Ferretti noted that appellant’s right
knee was slowly worsening. In a March 24, 2010 report, he diagnosed bilateral knee strain/sprain
and osteoarthritis, and recommended modified duty. In a February 2, 2011 report, Dr. Ferretti
noted that appellant had chronic bilateral knee pain.
A January 30, 2009 x-ray report was interpreted by Dr. Christophe Yoo, a Board-certified
radiologist, as showing moderate bilateral tricompartmental osteoarthritis in both knees with small
effusion.
On July 14, 2014 Dr. William Robert Campbell, an osteopath Board-certified in orthopedic
surgery, performed a right knee total joint arthroplasty.
On March 17, 2015 appellant filed a notice of recurrence of the claimed December 5, 2008
injury to his left knee, effective February 11, 2015. He noted that he was limited in performing
his duties because of his left knee pain. Appellant related that, following his initial injury, his knee
pain had been bearable but occasionally the stiffness and pain would occur and then go away. He
then related that, on February 11, 2015 he was at work and bending to pick up a tub of mail when
he experienced pain in his left knee. Appellant noted that since then his left knee would hurt
whenever he ascended or descended stairs. He contended that his current condition was related to
his original injury and noted that it was the same knee.
By development letter dated March 19, 2015, OWCP informed appellant that he must file
a new claim for the injury of February 11, 2015. It noted that when appellant’s claim was received
in 2008 it appeared to be a minor injury that resulted in minimal or no lost time from work. Based
on these criteria, and because the employing establishment did not controvert his claim or
challenge the case, payment of a limited amount of medical expenses was administratively

2
OWCP assigned the present claim OWCP File No. xxxxxx111. Appellant has a previous claim, assigned OWCP
File No. xxxxxx955, which OWCP accepted for right knee sprain resulting from delivering mail on January 14, 2005.

2

approved. OWCP indicated that based on the evidence submitted, it appeared that appellant was
alleging a new injury.
On March 25, 2015 appellant filed a traumatic injury claim (Form CA-1) for a new injury
to his left knee. OWCP denied that claim, assigned OWCP File No. xxxxxx263, on July 29, 2015
because appellant had not established causal relationship between the employment incident of
February 11, 2015 and an injury to his left knee. Appellant subsequently requested
reconsideration. On February 23, 2016 OWCP denied modification of its July 29, 2015 decision.
In a March 4, 2015 report, Dr. Ferretti requested authorization for a left total knee
replacement. He diagnosed advanced degenerative arthritis of the left knee. Dr. Ferretti also
indicated that appellant was status post right total knee replacement. He stated that appellant was
doing well with regard to his right knee replacement and was able to return to modified-duty work
on November 14, 2014 with restrictions of squatting and no lifting greater than five pounds.
Dr. Ferretti noted that appellant was working. He referred appellant to Dr. Campbell, who
performed the right knee surgery, for evaluation, and returned appellant to modified work status
with the same restrictions.
On June 15, 2017 appellant filed a recurrence claim (Form CA-2a), alleging a recurrence
of his claimed December 5, 2008 injury on February 11, 2015. He noted that since his return to
work his left knee had been bearable, but stiffness and pain would occur. Appellant noted that he
was bending on February 11, 2015 to pick up a tub of mail and felt pain in his left knee.
In a July 13, 2017 development letter, OWCP summarized the history of appellant’s claim
and explained that additional medical evidence was necessary to support his claim. It afforded
him 30 days to submit the necessary evidence.
In a response received by OWCP on August 2, 2017, appellant stated that after his right
knee surgery, he informed his doctor that his left knee was hurting, and that his doctor found that
it was aggravated by his right knee. He indicated that he was recovering from his July 14, 2014
right knee surgery, and that his doctor released him to return to modified-duty work on
November 14 or 15, 2014. Appellant stated that when he lifted a tub or tray of mail, he was putting
weight on his left knee because the right knee surgery had not healed.
Appellant also submitted multiple reports by Dr. Campbell dated from June 1, 2016
through September 7, 2017. In a June 1, 2017 report, Dr. Campbell noted that appellant had tried
and failed all reasonable conservative treatment measures, including therapy and injections, but
that his symptoms were worsening. He noted that appellant’s magnetic resonance imaging (MRI)
scan showed significantly advanced degenerative joint disease in the medial and patella femoral
compartments. Dr. Campbell stated that appellant’s complaints, clinical presentation and MRI
scan/arthroscopic findings are all in harmony. He recommended a left total knee arthroplasty and
physical therapy follow up. In a July 7, 2016 x-ray report, Dr. Campbell, found no acute osseous
abnormality. In the left knee, he found tricompartmental arthrosis, small joint effusion, and
possible intra-articular body. In the right knee, Dr. Campbell noted that appellant was status post
total knee arthroplasty without hardware complication. In a July 20, 2017 report, he stated that
appellant’s complaints, clinical presentation, and MRI scan/arthroscopic findings are all in
harmony. Dr. Campbell noted that he was submitting an authorization on appellant’s behalf

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regarding a left knee total arthroplasty, and was also requesting postoperative therapy visits. In a
September 7, 2017 report, he noted that he was awaiting response from OWCP.
By decision dated September 20, 2017, OWCP denied appellant’s claim for recurrence of
disability. It explained that while his claimed December 5, 2008 injury had been administratively
accepted, appellant had not established a diagnosed left knee condition as a result of the accepted
incident. OWCP thereafter found that appellant had not established a recurrence of disability as
he had not established a material change or worsening of “accepted work[-]related conditions.”
LEGAL PRECEDENT
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, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.3 Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.4
A recurrence of disability means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition which resulted from a previous injury
or illness without an intervening injury or new exposure to the work environment that caused the
illness.5
When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of establishing that the recurrence is causally related to the
original injury.6 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.7 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.8

3

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

4

T.H., 59 ECAB 388 (2008).

5

Theresa L Andrews, 55 ECAB 719, 722 (2004); see also C.S., Docket No. 17-1345 (issued May 24, 2018).

6

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6 (June 2013).
7

See S.S., 59 ECAB 315, 318-19 (2008).

8

Id. at 319.

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he sustained
a recurrence of disability commencing February 11, 2015 as he has not established that the
accepted December 5, 2008 employment incident caused an injury.
Appellant alleged that on February 11, 2015 he was picking up a tub of mail when his left
knee became painful. He stated that he believed he sustained a recurrence of his claimed
December 5, 2008 injury because the same knee was involved. OWCP noted that appellant’s
December 5, 2008 injury claim had been administratively accepted, but had not been formally
accepted because the medical evidence of record did not establish a diagnosed left knee condition
causally related to the employment incident. It denied his recurrence claim finding that as
appellant had not established a diagnosed left knee condition causally related to the accepted
December 5, 2008 employment incident, he had also not established a recurrence of an accepted
condition on February 11, 2015.
The initial medical evidence of record included December 8, 2008 reports which noted left
knee pain and sprain. However these reports were unsigned or bore an illegible signature. As
reports bearing no signature or an illegible signature cannot be identified as having been prepared
by a physician and they do not constitute competent medical opinion evidence.9
Appellant submitted multiple reports from Dr. Ferretti dating from 2009. Dr. Ferretti
diagnosed bilateral knee strain and degenerative arthritis. He did not address causal relationship.
As Dr. Ferretti did not provide a rationalized medical opinion which explained how the diagnosed
bilateral knee strain and degenerative arthritic knee conditions were causally related to the
accepted December 5, 2008 employment incident, his reports are of limited probative value.10
Appellant also submitted a January 30, 2009 x-ray report from Dr. Yoo. However this
diagnostic report is of diminished probative value. Diagnostic test reports are not probative to the
issue of causal relationship as they do not offer any opinion regarding the cause of an employee’s
condition.11
The Board finds that the medical evidence of record is insufficient to establish that
appellant sustained a diagnosed left knee condition on December 5, 2008 causally related to his
accepted employment incident. While appellant submitted additional medical evidence pertaining
to medical treatment of his left knee condition after 2015 that evidence also does not establish that
appellant initially sustained a diagnosed left knee condition on December 5, 2008.
In a March 4, 2015 report, Dr. Ferretti diagnosed advanced degenerative arthritis of the left
knee and requested authorization for a total left knee replacement; however, he offered no opinion
9

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a “physician” as defined in 5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB
572 (1988).
10

Supra note 4.

11

J.O., Docket No. 18-0057 (issued May 29, 2018).

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causally relating this diagnosis to appellant’s December 5, 2008 employment incident. Similarly
Dr. Campbell reported in multiple reports from June 1, 2016 through September 7, 2017 that
appellant had advanced degenerative joint disease in the medial and patella femoral compartments
of his left knee. However, he offered no medical opinion regarding the cause of these conditions.
As neither physician’s opinions addressed the cause of appellant’s diagnosed conditions, these
reports are insufficient to establish causal relationship.12
As previously noted, it is axiomic that appellant has not established a recurrence of an
accepted injury, if no initial injury has been accepted.13 As appellant has not established that he
sustained a diagnosed left knee condition causally related to his accepted December 5, 2008
employment incident, he has not met his burden of proof to establish an injury causally related to
the accepted December 5, 2008 employment incident.
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 recurrence of
disability commencing February 11, 2015 causally related to an accepted December 5, 2008
employment incident.

12

See B.A., Docket No. 17-1130 (issued November 24, 2017); S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303
(2007); Donald W. Long, 41 ECAB 142 (1989).
13

Supra note 6.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated September 20, 2017 is affirmed.
Issued: August 17, 2018
Washington, DC

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

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

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

7


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

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Docket No. 12-51
Issued: June 25, 2012

Case Submitted on the Record

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

On October 5, 2011 appellant filed a timely appeal from the June 2 and September 16,
2011 merit decisions of the Office of Workers’ Compensation Programs (OWCP) which denied
modification of a November 19, 2009 loss of wage-earning capacity decision. The Board
docketed the appeal as No. 12-51.
By statement signed on February 20, 2008, appellant authorized Mike Watson and
Associates to represent her before OWCP in Docket No. xxxxxx402. Mr. Watson forwarded this
authorization to OWCP accompanied by a letter dated October 10, 2008 wherein he noted that he
was appellant’s representative. After hearing no response from OWCP, Mr. Watson wrote
another letter dated October 28, 2009 wherein he again enclosed appellant’s authorization and
stated that he would like to receive all letters, notices and decisions issued by OWCP with regard
to appellant’s claim.
By decision dated November 19, 2009, OWCP noted that appellant had returned to work
at the employing establishment, determined that this position represented her wage-earning
capacity, concluded that her actual earnings met or exceeded the current wages of the job held
when injured and terminated appellant’s compensation benefits. A copy of that decision was not
sent to her authorized representative, Mr. Watson.
Appellant subsequently requested
compensation commencing January 22, 2011 because no work was available pursuant to the

National Reassessment Program. By decision dated June 2, 2011, OWCP denied her claim for
compensation. It denied modification of this decision in a decision dated September 16, 2011.
Regulations and Board case law require OWCP to send a copy of its decision to the
authorized representative.1 The Board has held that, under the Federal Employees Compensation
Act,2 a decision is not properly issued unless both appellant and the authorized representative
have been sent copies of the decision.3 Accordingly, the Board finds that the November 19,
2009 loss of wage-earning capacity decision was improperly issued and is void ab initio, i.e.,
void from its inception. As the November 19, 2009 decision was not valid, the subsequent
decisions by OWCP dated June 2 and September 16, 2011 are also invalid as they were based on
a nonexistent decision. Thus, the Board must set aside these decisions and remand the case for
an appropriate and properly issued merit decision on all relevant issues.

1

See 20 C.F.R. § 10.127. The Board held in Travis L. Chambers, 55 ECAB 138 (2003) that section 10.127
requires that a copy of an OWCP decision be sent to the authorized representative and that any other interpretation
of the language of the regulations would be inconsistent with the clear language of its initial provisions. In
George R. Bryant, Docket No. 03-2241 (issued April 19, 2005), the Board found that OWCP did no properly issue
its June 18, 2003 decision when it did not send a copy of that decision to the authorized representative on that date;
OWCP conceded a procedural error and advised that a merit review would be provided on remand to preserve
appellant’s rights. In James Consentino, Docket No. 04-1774 (issued October 21, 2004), the Board found that
OWCP improperly issued a decision terminating compensation because it did not mail the decision to appellant’s
representative and declared the termination decision null and void. Although OWCP subsequently denied
modification of the termination, the Board found that the merit reviews “did not resuscitate the termination” as
OWCP had prejudiced appellant by denying his representative the opportunity to assist in post-deprivation remedies,
including a timely hearing under 5 U.S.C. § 8124.
2

5 U.S.C. § 8101 et seq.

3

See Travis L. Chambers and James Consentino, supra note 1.

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IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 16 and June 2, 2011 are set aside and the case is
remanded for further proceedings consistent with this order.
Issued: June 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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