United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, TERMINAL ANNEX
BUILDING, Denver, CO, Employer
__________________________________________

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Appearances:
Steven D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-456
Issued: August 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 8, 2006 appellant timely appealed the May 31, 2006 merit decision of the
Office of Workers’ Compensation Programs which affirmed the denial of his occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant filed a timely claim pursuant to 5 U.S.C. § 8122.
FACTUAL HISTORY
On November 5, 2001 appellant, then a 47-year-old retired mail handler, filed an
occupational disease claim for binaural hearing loss.1 He was aware of his hearing loss as early
as January 1, 1982, but it was not until January 1, 1984 that he first realized the condition was
1

The employing establishment acknowledged receiving the claim form more than a year later on
December 13, 2002.

employment related. Appellant stated that as a mail handler he was exposed to noise from
various machines on the workroom floor. He was also exposed to noise from trucks and tractor
trailers, moving forklifts and other equipment being moved about in the workplace. Appellant
last worked as a mail handler on September 6, 1988.2
Appellant claimed that he was informed at work about his hearing loss while still
employed as a mail handler. He advised the Office to contact Dr. Donald Olson, an employing
establishment physician, to obtain medical records relevant to his hearing loss. Appellant also
stated that every three to six months his supervisors told him to report to the employing
establishment’s medical office for testing. According to him, his employment records
documented his hearing difficulties in the workplace.
The employing establishment challenged appellant’s claim as untimely filed. The claim
(Form CA-2) did not indicate if and when appellant reported his condition to his supervisor. The
employing establishment’s injury compensation manager, who acknowledged receipt of the
claim, indicated that she was first notified of appellant’s condition on October 17, 2002.
After additional development of the record, the Office denied the claim on June 18, 2004.
It found that the medical evidence did not provide a diagnosis that could be connected to
appellant’s employment exposure.3
Appellant requested a review of the written record. By decision dated June 13, 2005, the
Office hearing representative remanded the case for consideration of whether appellant’s
November 15, 2001 claim was timely. In a decision dated September 30, 2005, the Office
denied the claim as untimely filed.4
Appellant, with the assistance of counsel, requested a review of the written record. In a
letter dated May 3, 2006, counsel advised the Office that he had attempted to obtain copies of
appellant’s hearing tests from the employing establishment.5 Appellant’s medical records had
reportedly been transferred from the employing establishment’s Denver medical records facility.
Counsel had been referred to the National Archives and Records Administration, National
Personnel Records Center in St. Louis, MO and he was awaiting a response on whether
2

Shortly thereafter he received a disability annuity from the Office of Personnel Management.

3

Dr. David M. Harris, a Board-certified otolaryngologist and Office referral physician, examined appellant on
August 19, 2003 and diagnosed bilateral hearing loss. The left ear was indicative of noise-induced hearing loss.
However, Dr. Harris indicated that the right ear loss, which was profound, was possibly partially due to noise
exposure, but probably from another cause. The district medical adviser expressed similar doubts about the
employment-related nature of appellant’s right ear hearing loss. He noted that there were no available audiograms
from the time appellant last worked in 1988 or 1989 and recommended obtaining such information for comparison
purposes. The employing establishment subsequently advised the Office that it did not have appellant’s medical
records and that the facility where he previously worked had closed.
4

Prior to issuing the decision, the Office afforded both appellant and his counsel the opportunity to submit any
additional evidence relevant to the issue of timeliness. But the Office did not receive any additional information.
5

The record also indicates that on at least three separate occasions between March and June 2004, appellant wrote
to the employing establishment requesting that he be provided copies of his employee medical records.

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appellant’s medical records were at that facility. Counsel also submitted a sworn statement from
appellant dated April 19, 2006 indicating that he was last exposed to excessive noise in
September 1988 and that he had participated in an annual testing program for employees exposed
to high noise levels.
On May 8, 2006 the St. Louis National Personnel Records Center advised counsel that
the medical records he had requested were not on file at that particular center.
By decision dated May 31, 2006, the Office hearing representative denied appellant’s
claim as untimely.
LEGAL PRECEDENT
Section 8122(a) of the Federal Employees’ Compensation Act provides that an original
claim for compensation for disability or death must be filed within three years after the injury or
death.6 A claim filed outside this time frame must be disallowed unless the immediate superior
had actual knowledge of the injury or death within 30 days.7 An otherwise untimely claim will
also be considered timely if the immediate supervisor received written notice within 30 days of
the date of injury or death.8
In a case of latent disability, the time for filing a claim does not begin to run until the
employee has a compensable disability and is aware, or by the exercise of reasonable diligence
should have been aware, of the causal relationship of the compensable disability to his
employment.9 An employee with actual or constructive knowledge of his employment-related
condition, who continues to be exposed to injurious working conditions, must file his or her
claim within three years of the date of last exposure to the implicated conditions.10
ANALYSIS
Appellant was last exposed to the alleged injurious working conditions on
September 6, 1988. However, he did not file his occupational disease claim for another 13 years.
Appellant has not claimed, nor is there any documentary evidence that he provided his
supervisor written notice of his injury within the requisite 30-day time frame. Thus, the only
remaining avenue for finding the claim timely is if appellant’s supervisor had knowledge of his
claimed hearing loss within the applicable timeframe.

6

5 U.S.C. § 8122(a) (2000).

7

The knowledge must be such to put the immediate superior reasonably on notice of an on-the-job injury.
5 U.S.C. § 8112 (a)(1).
8

5 U.S.C. § 8122(a)(2) (the written notice provided must be in accordance with 5 U.S.C. § 8119).

9

5 U.S.C. § 8122(b).

10

E.g., James A. Sheppard, 55 ECAB 515, 518 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.6 (March 1993).

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Appellant claimed that he learned of his employment-related hearing loss from an
employing establishment physician. He also indicated that his supervisors told him every three
to six months to report to the employing establishment medical facility for testing. Additionally,
appellant identified Dr. Olson as the employing establishment physician at the Denver facility
where he was last employed but, thus far, both appellant and his counsel have been unsuccessful
in their respective attempts to obtain copies of his employee medical records which reportedly
include routine periodic hearing tests administered by the employing establishment.
Although the employing establishment challenged appellant’s claim as untimely, it has
not submitted any evidence contradicting appellant’s assertions that his hearing was regularly
monitored by the employing establishment medical personnel and that an employing
establishment’s physician informed him of his hearing loss. The employing establishment has
not denied these allegations but, thus far, has only stated that it does not have appellant’s medical
records.11
A positive employee test result from an employing establishment program of regular
audiometric examinations is sufficient to establish knowledge of a hearing loss so as to put the
immediate supervisor on notice of an on-the-job injury.12 The Office Procedure Manual is
particularly instructive with respect to developing evidence regarding employee health testing
programs when determining whether a claim is timely. According to the procedure manual, if
the employing establishment’s regular physical examinations which might have detected signs of
illness (for example, regular x-rays or hearing tests), “the agency should be asked” whether the
results of such tests were positive for illness and whether the employee was notified of the
results.13 The procedure manual further provides that, if the claimant was still exposed to
employment hazard on or after September 7, 1974 and the employment establishment’s testing
program disclosed the presence of an illness or impairment, this would constitute actual
knowledge on the part of the agency and timeliness would be satisfied even if the employee was
not informed.14
While the claimant has the burden to establish entitlement to compensation, the Office
shares the responsibility in the development of the evidence, particularly when such evidence is
of the character normally obtained from the employing establishment or other government
sources.15 As indicated in the procedure manual, the Office should inquire of the employing
establishment, whether such audiometric testing occurred and if the results were indicative of a
hearing loss.16 The employer is responsible for submitting to the Office all relevant and
11

But even a mere assertion of disagreement with appellant’s version of events will not suffice. Absent a written
explanation to support the disagreement, the Office may accept the claimant’s version of events as established. See
20 C.F.R. § 10.117.
12

See James A. Sheppard, supra note 2.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6c (March 1993) (Emphasis added).

14

Id.

15

Richard Kendall, 43 ECAB 790, 799 (1992).

16

See supra note 7.

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probative factual and medical evidence in its possession or which it may acquire through
investigation or other means.17 Accordingly, the case is remanded for further development.
After such further development as the Office deems necessary, a de novo decision shall be
issued.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: August 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

17

20 C.F.R. § 10.118(a).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATIONAL FOREST SERVICE,
Harrisburg, IL, Employer
__________________________________________

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

Docket No. 14-338
Issued: May 20, 2013

Case Submitted on the Record

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

JURISDICTION
On November 29, 2013 appellant filed a timely appeal from an October 16, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s medical and wage-loss
compensation benefits effective October 9, 2013 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 10, 2001 appellant, then a 47-year-old nurse practitioner, injured her right wrist
and arm when she slipped on a wet spot on the floor. She stopped work. OWCP accepted
appellant’s claim for lumbosacral strain and paid disability compensation.
In an April 13, 2001 report, Dr. Steven D. Knight, a Board-certified family practitioner,
stated that appellant slipped and fell on her back at work. He observed tenderness down the
L5-S1 area, particularly in the right sacroiliac (SI) joint. Straight leg raise testing was positive
on the right at 90 degrees and on the left at about 40 degrees. SI joint testing was negative.
Dr. Knight diagnosed low back pain.
In an April 18, 2001 magnetic resonance imaging (MRI) scan report, Dr. P. Reddy Illuri,
a radiologist, noted appellant’s history of back strain. He found no evidence of herniated or
ruptured disc or spinal stenosis. Dr. Illuri reported a normal MRI scan of the lumbar spine.
In a June 15, 2001 report, Dr. Lester Owens, Board-certified in physical medicine and
rehabilitation, authorized appellant to return to work with restrictions. On September 4, 2001
appellant returned to limited duty. On December 7, 2001 she was released to full duty.
On February 12, 2003 OWCP combined this case with a traumatic injury claim (File No.
xxxxxx734) for a September 12, 2002 back injury under master File No. xxxxxx168.
(Appellant’s claim was accepted for thoracic strain and disorders of the sacrum. She returned to
limited duty. On December 1, 2002 appellant stopped work as the employing establishment
could no longer accommodate her work restrictions. She was paid compensation for total
disability and placed on the periodic rolls.
On July 15, 2003 appellant was referred to vocational rehabilitation. On October 23,
2006 she began working as a precertification nurse at a hospital. On January 22, 2007 OWCP
reduced appellant’s wage-loss compensation benefits based on her actual earnings as a
precertification nurse under the wage-earning capacity determination she received $334.54 per
week.
In June 8 and July 10, 2012 reports, Dr. Knight related appellant’s complaints of back
pain radiating down both legs and reviewed her medications. Upon examination of appellant’s
spine, he observed tenderness over the lumbar and sacral vertebra and SI region. Straight leg
raise testing was positive bilaterally at 15 degrees and SI joint testing was positive bilaterally.
Dr. Knight also noted decreased range of motion but no swelling. He diagnosed low back pain
and tobacco use disorder and recommended a functional capacity evaluation.
In a June 14, 2012 MRI scan report, Dr. Hisham T. Youssef, a Board-certified diagnostic
radiologist, observed mild desiccation to the T12-L1 through L4-5 intervertebral discs without
disc space narrowing and mild annular disc bulging L5-S1 with minimal annular disc bulging
T12-L1 through L4-5. He diagnosed degenerative changes with multilevel disc bulging T12-L1
through L5-S1 resulting in mild circumferential spinal stenosis at the L4-5 level and small left
paracentral broad-based disc protrusion at the L5-S1 level negative for nerve root impingement.

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On July 2, 2012 appellant stopped work and requested compensation for total disability.
On August 2, 2012 she filed a recurrence claim alleging that her original April 10, 2001 injury
never resolved and that she continued to receive medical treatment.2
In a July 17, 2012 report, Dr. Franklin Hayward, a neurosurgeon, related appellant’s
complaints of back, buttock and leg pain. He reviewed her history and noted that she slipped on
the floor in April 2001. Dr. Hayward advised that an MRI scan of the lumbar spine revealed
degenerative changes with multilevel disc bulge and small left paracentral broad-based disc
protrusion. He diagnosed SI joint pain and recommended appellant to a pain management
physician to rule out SI joint dysfunction.
In August 13 and October 23, 2012 reports, Dr. Knight related that on April 10, 2001
appellant injured her low back and ruptured both of her SI joints when she slipped and fell on a
concrete floor. Since that time, appellant experienced moderate-to-severe low back pain,
extreme tenderness over her SI joints, weakness in both her lower extremities, burning sensation
in her lower back, some numbness in the right calf area and tingling in both lower extremities.
Dr. Knight related his medical treatment of her to the 2001 injury. He stated that appellant’s
condition was a direct result of her 2001 fall and that her condition was permanent in nature.
Dr. Knight opined that she was not physically capable of performing her usual duties and could
not be gainfully employed. He advised that appellant was totally disabled as of July 2, 2012 and
would continue to suffer from long-term problems with her lower back and SI joints. Appellant
submitted additional medical reports from Dr. Knight regarding treatment of her low back and SI
joint pain.
By letter dated September 24, 2012, OWCP advised appellant that the evidence received
was insufficient to establish her recurrence claim. It requested additional evidence to establish
that she stopped work beginning July 2, 2012 as a result of her April 10, 2001 employment
injury.
In an October 22, 2012 statement, appellant reported that since her April 10, 2001 injury
she had significantly altered her lifestyle by changing her activities in order to tolerate her pain.
On January 3, 2013 OWCP referred appellant, together with a statement of accepted facts
and the medical records, to Dr. Deborah St. Clair, a Board-certified orthopedic surgeon, for a
second-opinion examination to determine the extent of her residuals and disability due to
accepted medical conditions. In a March 26, 2013 report, Dr. St. Clair reviewed appellant’s
medical history, including the statement of accepted facts and provided an accurate history of the
April 10, 2001 and September 12, 2002 employment injuries. She related appellant’s complaints
of pain in her SI joints and both lower extremities. Upon examination, Dr. St. Clair observed
mild paraspinous spasm in the lumbar spine but no superficial tenderness in the lumbosacral
gutter. Right hip rotated to 25 degrees and internal rotation was to 45 degrees. Dr. St. Clair
noted that appellant was markedly tender over the trochanteric bursa. She reported that straight
leg raise testing was difficult to evaluate as appellant complained that her SI joints hurt. Dr. St.
Clair stated that appellant’s injury was over 10 years old and opined that any sprain or strain was
2

As OWCP has not issued a final decision regarding appellant’s recurrence claim, the Board will not address this
issue at this time. 20 C.F.R. § 501.2(c).

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long past resolved since a lumbar or thoracic sprain generally ran its course over a few weeks.
She noted that there was no medical way to connect the employment injury to her current
symptoms. Dr. St. Clair concluded that appellant was capable of working as a registered nurse
with physical restrictions.
OWCP found a conflict in medical opinion between Dr. St. Clair, the second-opinion
examiner and Drs. Knight and Hayward, appellant’s treating physicians, as to whether she had
any continuing residuals or disability due to her accepted employment injuries. It referred
appellant with a statement of accepted facts and the medical record, to Dr. Juan A. Carrillo, a
Board-certified orthopedist, for an impartial medical examination.
In a July 17, 2013 report, Dr. Carrillo related appellant’s complaints of back pain and
spasms spreading into both lower extremities and a shorter right leg, which she attributed to an
April 10, 2001 fall at work. He reviewed her medical record, which included over 400 pages,
and noted that her claims were combined and accepted for lumbosacral strain, thoracic strain,
strain of the sacral joint and disorder of sacrum. Upon examination, Dr. Carrillo observed a
short limp gait favoring the right lower extremity but found no discrepancy in the length of either
lower extremity. He noted that range of motion of both hips was limited in flexion at about 90
degrees mostly due to pain. Dr. Carrillo reported normal deep tendon reflexes at the patellar
ankle reflexes and no evidence of decreased sensation in either lower extremity. Examination of
appellant’s back demonstrated no evidence of any scioliotic curvature of any lordotic of kyphotic
curvatures in her spine. Range of motion of the spine was possible to about 30 degrees of
flexion, 10 degrees of extension and lateral motion about 20 degrees. Dr. Carrillo opined that
her April 2001 and September 2002 work injuries had resolved long ago and were no longer an
issue. Based on a review of the record, there was no evidence of any massive injury, such as a
subluxation or destruction of the sacroiliac joints, at the time of the April 2001 work incident.
Dr. Carrillo stated that there was no evidence that appellant sustained anything more than a strain
injury and that her recovery should have extended to just three to six weeks. The degenerative
changes noted in the most recent MRI scan were a normal progression of her underlying
condition, which was unrelated to the work injuries in question. Based on his examination
findings, Dr. Carrillo found no reason why appellant could not continue to work as a nurse
without restrictions.
On September 4, 2013 OWCP proposed to terminate appellant’s medical and wage-loss
compensation benefits finding that the weight of medical evidence established that she no longer
had any residuals or disability causally related to her accepted injuries. It determined that the
weight of medical evidence rested with Dr. Carrillo’s July 17, 2013 impartial medical report.
Appellant was advised that she had 30 days to submit additional relevant evidence or argument if
she disagreed with the proposed action.
In an August 29, 2013 report, Dr. Fred Klug, Ph.D., a Board-certified clinical
psychologist, described appellant’s medical conditions and conducted an evaluation. He
diagnosed pain disorder associated with psychological factors and a medical condition.
In a September 15, 2013 statement, appellant described her work-related injuries, medical
treatment she received, the vocational rehabilitation she underwent and her work history. She
noted that Dr. Knight informed her that she was no longer able to continue to work. Appellant

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questioned Dr. St. Clair’s second-opinion report because she was not provided with all her
medical reports. She also questioned how Dr. Carrillo could disagree with 12 years of medical
treatment after one assessment. Appellant contended that her medical condition continued to
deteriorate over time and that even with the maximum dosage of medication she still had pain
which made it more difficult to perform her job.
In a September 18, 2013 report, Dr. Steven D. Knight related appellant’s complaints of
continued low back pain. Upon examination, he observed back pain and tenderness over the
lumbar and sacral vertebra. Dr. Knight noted decreased range of motion and muscle weakness.
Straight leg raise testing was positive bilaterally.
By decision dated October 16, 2013, OWCP finalized the termination of appellant’s
medical and wage-loss compensation benefits effective October 16, 2013. It found that the
special weight of medical evidence rested with Dr. Carrillo’s impartial report.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.3 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.4 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.8 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9 When there exists opposing medical reports of virtually equal weight and rationale and
3

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

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
7

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

8

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
9

20 C.F.R. § 10.321.

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the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10
ANALYSIS
OWCP accepted that on April 11, 2001 appellant sustained a lumbar strain in the
performance of duty. It subsequently combined this injury with a September 12, 2002 back
injury and expanded the claim to include thoracic strain and disorders of the sacrum. Appellant
stopped work and received disability compensation. On October 23, 2006 she began work in a
private sector job and OWCP reduced her wage-earning capacity accordingly. On July 2, 2012
appellant stopped work again. In a decision dated October 16, 2013, OWCP terminated her
compensation benefits based on the July 17, 2013 report of the impartial medical examiner,
Dr. Carrillo. The Board finds that it properly terminated appellant’s medical and wage-loss
compensation benefits effective October 16, 2013 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries.
OWCP found that a conflict in medical opinion existed between appellant’s attending
physicians, Drs. Knight and Hayward, who determined that appellant continued to suffer
residuals from her work-related injuries and Dr. St. Clair, an OWCP referral physician, who
found that appellant was not totally disabled due to her work-related injuries. It referred
appellant to Dr. Carrillo to resolve the conflict. In his July 17, 2013 report, Dr. Carrillo provided
an accurate history of injury and stated that he reviewed over 400 pages of appellant’s medical
records. He noted that hospital records from the April 11, 2001 injury indicated that she only
sustained a lumbar strain. Upon examination of her back, Dr. Carrillo found no evidence of any
scoliotic, lordotic or kyphotic curvatures in appellant’s back. Range of motion of the spine was
possible to about 30 degrees of flexion, 10 degrees of extension and lateral motion about 20
degrees. Examination of appellant’s hip demonstrated normal deep tendon reflexes and no
decreased sensation in either lower extremity. Range of motion was limited in flexion at 90
degrees due to pain. Dr. Carrillo opined that appellant’s April 2001 and September 2002 work
injuries had resolved long ago. He explained that there was no evidence of a massive injury,
such as a subluxation or destruction of the SI joints, at the time of the April 2001 work incident.
Dr. Carrillo reported that the most recent June 14, 2012 MRI scan demonstrated nothing
regarding paraspinal soft tissue injuries. He stated that the degenerative changes of bulging discs
and disc protrusions were a normal progression unrelated to appellant’s work injury. Dr. Carrillo
concluded that she could return to her normal work activities without restriction.
The Board finds that Dr. Carrillo’s July 17, 2013 report is sufficiently detailed and well
reasoned to constitute the weight of the medical opinion evidence. When there exists opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.11 Dr. Carrillo reviewed appellant’s history and the statement of accepted facts. He
10

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

11

Id.

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accurately described the April 11, 2001 employment injury and the subordinate September 12,
2002 injury. Dr. Carrillo conducted an examination and found that the evidence did not establish
that appellant continued to suffer residuals or disability from her work-related injuries. The
Board finds that his opinion represents the special weight of medical opinion evidence.
Accordingly, Dr. Carrillo’s opinion is sufficient to justify OWCP’s termination of medical and
wage-loss compensation benefits for the accepted conditions.
The Board further finds that the medical evidence submitted after Dr. Carrillo’s
independent medical evaluation report was insufficient to overcome the weight of this report or
to create another conflict in medical evidence. In a September 18, 2013 report, Dr. Knight
related appellant’s complaints of low back pain and provided examination findings of decreased
range of motion and tenderness. Because he was on one side of the conflict which Dr. Carrillo
resolved this additional report is insufficient to overcome the weight accorded Dr. Carrillo’s
report as the impartial medical examiner or to create a new conflict.12
Appellant also submitted an August 29, 2013 psychological report by Dr. Klug, Boardcertified in clinical psychology, noted appellant’s medical conditions and diagnosed pain
disorder. He does not, however, explain whether appellant’s medical conditions were causally
related to her accepted employment-related injuries. The Board has held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.13
On appeal, appellant alleges that her condition is permanent and that it deteriorated over
time to the point that she is now 100 percent disabled. The Board has held, however, that to
establish a causal relationship between her current condition and the employment injury she must
establish by the weight of the reliable, probative and substantial evidence that she had an
employment-related disability, which continued after termination of compensation benefits.14
An employee’s belief of causal relation does not establish the fact of such medical question.15
The issue of causal relationship is a medical question that must be resolved by probative medical
opinion from a physician.16 As appellant has not submitted such medical evidence in this case,
the Board finds that Dr. Carrillo’s opinion constitutes the special weight of medical opinion and
supports OWCP’s decision to terminate her compensation benefits.
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.

12

Dorothy Sidwell, 41 ECAB 857 (1990).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009);
.A.D., 58 ECAB 149 (2006).
14

I.J., 59 ECAB 408 (2008).

15

See Patricia J. Glenn, 53 ECAB 159 (2001).

16

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

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CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective October 16, 2013.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 07-1500
Issued: November 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 9, 2007 appellant filed a timely appeal of a December 13, 2006 merit decision of
the Office of Workers’ Compensation Programs, finding a four percent binaural hearing loss, for
which he received a schedule award and an April 19, 2007 nonmerit decision, denying his
request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a four percent binaural hearing loss,
for which he received a schedule award; and (2) whether the Office properly denied appellant’s
request for a merit review of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 30, 2006 appellant, then a 60-year-old heavy mobile equipment operator, filed
an occupational disease claim.1 On May 15, 2000 he first realized that his hearing loss was
caused by his federal employment. Appellant stated that he was exposed to constant loud noise
eight hours per day at work. He related that he wore earplugs but they did not offer the
necessary protection. Appellant was last exposed to loud noise at the employing establishment
on May 30, 2006. He submitted audiograms performed by the employing establishment during
the period June 3, 1975 to December 8, 2003. The employing establishment provided noise level
data for various work areas.
By letter dated July 19, 2006, the Office requested that the employing establishment
provide whether appellant was still exposed to hazardous noise, and if not, provide the date of his
last exposure and the pay rate in effect on that date. In a letter dated July 21, 2006, the Office
advised appellant that the evidence submitted was insufficient to establish his claim. It
addressed the additional factual and medical evidence he needed to submit to establish his claim.
By letters dated July 28, 2006, the Office referred appellant, together with a statement of
accepted facts to Dr. Thomas D. Burns, an audiologist, and Dr. Charles E. Hollingsworth, a
Board-certified otolaryngologist,2 for an audiological evaluation and an otologic examination.
In a July 26, 2006 letter, received by the Office on August 2, 2006, appellant stated that
he first became aware of his hearing loss in May 2000 during a routine physical examination and
hearing test. He stated that he was not exposed to loud noises outside of his employment,
reiterating that his hearing loss was caused by his employment.
On August 16, 2006 Dr. Burns performed an audiogram. Testing of the right ear at
frequency levels of 500, 1,000, 2,000 and 3,000 hertz (Hz) revealed decibel losses of 15, 10, 20
and 65, respectively and in the left ear decibel losses of 10, 10, 25 and 70, respectively.
In an August 16, 2006 report, Dr. Hollingsworth found that the earliest audiogram
performed on June 3, 1975 revealed that appellant had normal hearing except for mild (25 to 30
decibels) loss from 4,000 Hz upwards while the most recent audiogram performed on August 16,
2006 revealed very mild low frequency sensorineural loss with normal mid-frequency hearing.
He opined that appellant had severe bilateral high frequency sensorineural loss starting at 2,000
Hz that was caused by his employment. Utilizing the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), he determined that
appellant had a 3.8 percent right monaural impairment and a 5.6 percent left monaural
impairment which constituted a 4.1 percent binaural impairment. Hearing aids were not
recommended, but Dr. Hollingsworth stated that appellant would probably need them within the
next several years. Dr. Hollingsworth recommended proper ear protection as necessary and
periodic evaluation.

1

In November 2001appellant filed a claim for hearing loss which was denied by the Office.

2

The Board notes that Dr. Hollingsworth is also a Board-certified plastic surgeon.

2

On September 18, 2006 an Office medical adviser reviewed Dr. Burns’ August 16, 2006
audiogram results and Dr. Hollingsworth’s August 16, 2006 report. He determined that appellant
reached maximum medical improvement on August 16, 2006. The medical adviser concluded
that, in accordance with the A.M.A., Guides, appellant had a 5.6 percent impairment of the left
ear and a 3.8 percent impairment of the right ear which constituted a 4 percent binaural hearing
impairment. The medical adviser did not authorize hearing aids, noting that Dr. Hollingsworth
did not recommend them.
By letter dated September 21, 2006, the Office accepted appellant’s claim for binaural
hearing loss. On November 14, 2006 he filed a claim for a schedule award.
In a decision dated December 13, 2006, the Office granted appellant a schedule award for
a four percent binaural hearing loss. The period of the award was from November 14, 2005 to
January 8, 2006. By letter dated January 26, 2007, appellant requested reconsideration. He
questioned why the Office did not accord determinative weight to the findings of Dr. Kristin
Lower, a Board-certified otolaryngologist, who had an audiogram performed and found that
appellant needed hearing aids as a result of his work-related noise exposure. Appellant
contended that Dr. Lower was better qualified as an otolaryngologist while Dr. Hollingsworth’s
business card indicated that he was a specialist in plastic and reconstructive head, neck and
cosmetic surgery. He submitted duplicate copies of the Office medical adviser’s September 18,
2006 report and the Office’s December 13, 2006 decision.
By decision dated April 19, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it neither raised substantive legal questions nor included new
and relevant evidence and thus, it was insufficient to warrant a merit review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation to be paid for
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.5 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.6
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz the losses at each
3

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

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

6

20 C.F.R. § 10.404.

7

A.M.A., Guides 250.

3

frequency are added up and averaged.8 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.9 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.10 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.11 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.12
ANALYSIS -- ISSUE 1
Dr. Hollingsworth, the second opinion specialist, examined appellant and submitted a
report on August 16, 2006, finding that he sustained bilateral sensorineural hearing loss causally
related to noise exposure in the course of his federal employment. The Board finds that
Dr. Hollingsworth properly determined that appellant sustained a four percent permanent
binaural hearing loss. He reviewed Dr. Burn’s August 16, 2006 audiogram results and
determined that appellant sustained a 3.8 percent right monaural impairment and a 5.6 percent
left monaural impairment which constituted a 4.1 percent binaural impairment based on the
A.M.A., Guides. Dr. Hollingsworth did not recommend hearing aids at that time, but stated that
appellant would probably need them within the next several years. He, however, recommended
proper ear protection as necessary and periodic evaluation.
The Office medical adviser reviewed Dr. Hollingsworth’s report. He applied the Office’s
standardized procedures to the August 16, 2006 audiogram performed by Dr. Burns. Testing of
the right ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 15,
10, 20 and 65, respectively for a total of 110 decibels. When divided by 4, the result is an
average hearing loss of 27.5 decibels. The average loss of 27.5 is reduced by 25 decibels to
equal 2.5, which, when multiplied by the established factor of 1.5, results in a 3.8 percent hearing
loss for the right ear. Testing of the left ear at the same above-noted frequency levels, revealed
decibel losses of 10, 10, 25 and 70, respectively, for a total of 115 decibels. When divided by 4,
the result is an average hearing loss of 28.75 decibels. The average loss of 28.75 decibels is
reduced by 25 decibels to equal 3.75, which, when multiplied by the established factor of 1.5,
results in a 5.6 percent hearing loss for the left ear. The lesser loss of 3.8 is multiplied by 5, then
added to the greater loss of 5.6 and the total is divided by 6 to arrive at the amount of the
binaural hearing loss of 4 percent. The Board finds that the Office medical adviser properly
applied the Office’s standards to the findings stated in Dr. Burn’s August 16, 2006 audiogram.
Further, the four percent impairment rating provided by the medical adviser is consistent with
8

Id.

9

Id.

10

Id.

11

Id.

12

See Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).

4

Dr. Hollingsworth’s findings. Thus, the Board finds that Dr. Hollingsworth and the medical
adviser provided reasoned opinions that appellant has a four percent binaural hearing loss under
the A.M.A., Guides.
As appellant did not submit any medical evidence supporting more than a four percent
permanent binaural hearing loss, the Board finds that there is no basis on which to grant a
schedule award for more than a four percent binaural hearing loss under the Office’s
standardized procedures.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,13
the Office’s regulation provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.14 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.15 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
On January 26, 2007 appellant disagreed with the Office’s December 13, 2006 decision,
which granted him a schedule award for a four percent binaural hearing loss. The relevant issue
in this case is whether he has more than a four percent binaural hearing loss. However, appellant
did not provide any relevant or pertinent new evidence to the issue of whether he had greater
than a four percent binaural hearing loss.
Appellant submitted the Office medical adviser’s September 18, 2006 report and the
Office’s December 13, 2006 decision. While he questioned why the Office did not accord
determinative weight to Dr. Lower’s opinion that he required hearing aids due to his
employment-related hearing loss as she was better qualified than Dr. Hollingsworth, appellant
did not provide additional new relevant evidence showing that he was entitled to a schedule
award for more than a four percent binaural hearing loss. As noted by the Board,
Dr. Hollingsworth is a Board-certified otolaryngologist and thus, possesses the same professional
qualifications as Dr. Lower. Further, submission of evidence that does not address the particular
issue involved does not constitute a basis for reopening a case for merit review.16
13

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
14

20 C.F.R. § 10.606(b)(1)-(2).

15

Id. at § 10.607(a).

16

Robert P. Mitchell, 52 ECAB 116 (2000); Jacqueline M. Nixon-Steward, 2 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).

5

The evidence submitted by appellant does not satisfy the third criterion noted above, for
reopening a claim for merit review. Further, he has not shown that the Office erroneously
applied or interpreted a specific point of law or advanced a relevant legal argument not
previously considered by the Office. As appellant did not meet any of the necessary regulatory
requirements, the Board finds that the Office properly denied merit review.17
CONCLUSION
The Board finds that appellant has no more than a four percent binaural hearing loss, for
which he received a schedule award. The Board further finds that the Office properly denied
appellant’s request for a merit review of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2007 and December 13, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

17

See James E. Norris, 52 ECAB 93 (2000).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 10-2058
Issued: June 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from a March 10, 2010 merit decision
of the Office of Workers’ Compensation Programs denying her occupational exposure claim and
a July 28, 2010 nonmerit decision denying her request for reconsideration. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury in the performance of duty; and (2) whether the Office properly denied her
request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 22, 2009 appellant, then a 29-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed lumbar strain with Tarlov cyst and Hoffa’s
syndrome. She stated that she first became aware of her condition on June 1, 2007 and of its
relationship to her employment on June 24, 2009.
In an attached June 2, 2009 letter, appellant stated that she had been a letter carrier for the
postal service for five years. During 2006, walking her route resulted in lower back pain,
headaches and weakness in her legs and since 2007, she had been restricted to limited walking,
lifting and standing. Appellant reported that she was diagnosed with lumbar strain with Tarlov
cyst in January 2009 and was restricted to working 25 hours per week. She asserted that the
weight of her mailbag on her back, and continuous walking and standing caused her inability to
fully perform her job. Appellant requested a light-duty assignment within the scope of her
restrictions and a later start time.
In a June 1, 2009 report, Dr. Marlela Molero, a treating physician on staff with the
Department of Veterans’ Affairs, recommended appellant work no more than 25 hours per week
and should not be standing for periods longer than 15 minutes, no continuous walking and no
lifting. In a June 24, 2009 medical report, she assessed appellant for bilateral knee pain. A
magnetic resonance imaging (MRI) scan of the lower extremity showed prominent edema in the
supralateral aspect of Hoffa’s fat pad and a mild proximal patellar tendinosis.
By letter dated July 23, 2009, the employing establishment controverted appellant’s claim
asserting that the medical evidence was insufficient.
By letter dated July 30, 2009, the Office informed appellant that the evidence of record
was in fact insufficient to support her claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
By letter dated September 5, 2009, appellant stated that she began experiencing lower
back pain, headaches, and knee pain in 2007 from her walking route and was diagnosed with
intractable headaches. Due to her restrictions, she was placed on detail as a customer service
supervisor but returned to carrying mail in January 2009. Appellant noted that her duties
included getting in and out of the postal truck to deliver mail and handling packages which put a
significant strain on her knees and lower back. Her curb line routes involved twisting to reach
for mail and climbing stairs. Appellant concluded that this resulted in a significant increase in
pain which caused her to favor one side of her body over the other and placed pressure on her
knees.
By decision dated October 14, 2009, the Office denied appellant’s claim finding that the
evidence did not establish that the claimed medical conditions were related to the established
work-related events.
On December 12, 2009 appellant requested reconsideration. In a September 29, 2009
medical report, Dr. Molero stated that appellant was diagnosed with low back strain, dysraphism,
Tarlov cyst and bilateral degenerative joint disease. She opined that appellant’s job duties

2

contributed to the need for her job restrictions because her lumbar strain and degenerative joint
disease were aggravated by her activities of lifting weights, repetitive twisting of the lower spine
with lateral rotation, changing position from sitting to standing many times during the day,
standing for long periods and walking up stairs.
In an undated medical report, Dr. Juliana Millan, Board-certified in internal medicine and
also on staff with the Department of Veterans’ Affairs, provided almost identical information and
made nearly identical findings to those of Dr. Molero in her September 29, 2009 report. She also
noted that an MRI scan of appellant’s knees showed bilateral patellar impingement.
By decision dated March 10, 2010, the Office affirmed its October 14, 2009 decision.
Appellant requested reconsideration on July 8, 2010 and submitted a medical report from
Dr. Millan in support of her request. In a July 8, 2010 medical report, Dr. Millan made the same
findings as her previous report and also stated that appellant’s back condition might have
improved but had worsened when she returned to carrying mail.
By decision dated July 28, 2010, the Office denied appellant’s request for reconsideration
finding that she did not raise a substantive legal question or include any new and relevant
evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

3

statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.6 Rationalized medical opinion
evidence must be based on a complete factual and medical background of the employee and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee. This
medical opinion must include an accurate history of the employee’s employment injury, and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant engaged in lifting packages, standing, walking and
reaching for mail in her employment as a letter carrier. It denied her claim on the grounds that
the evidence failed to establish a causal relationship between those activities and her claimed
lumbar strain with Tarlov cyst and Hoffa’s syndrome. The Board finds that the medical evidence
of record is insufficient to establish that appellant sustained a lumbar strain causally related to
factors of her employment as a letter carrier.
Dr. Molero requested an MRI scan performed on June 24, 2009 of appellant’s lower
extremity which showed prominent edema in the supralateral aspect of Hoffa’s fat pad and a
mild proximal patellar tendinosis. In a September 29, 2009 one paragraph medical report, she
summarized that appellant was diagnosed with low back strain, dysraphism, Tarlov cyst and
bilateral degenerative joint disease. Dr. Molero provided a one-sentence opinion that appellant’s
job duties contributed to the need for her job restrictions because her lumbar strain and
degenerative joint disease were aggravated by her duties of lifting weights, repeated twisting of
the lower spine, frequent changes of position from sitting to standing to deliver mail, long
periods of standing and climbing stairs.
The Board finds that the single paragraph opinion of Dr. Molero is not well rationalized
because she did not mention appellant’s prior medical history or treatment and failed to address
appellant’s preexisting service-related lumbar condition. The report also failed to describe or
explain the medical conditions it named. Though Dr. Molero concluded that causal connection
existed between appellant’s injury and her job duties, the report provided no support for that

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

D.U., Docket No. 10-144 (issued July 27, 2010).

7

James Mack, 43 ECAB 321 (1991).

4

conclusion. Other than appellant’s MRI scan, there was no reference to any findings on physical
examination.
While Dr. Molero named some of appellant’s work duties, she failed to specify how long
appellant worked for the employing establishment, how many hours she stood in a day, the
periods and the frequency of other physical movements and tasks and the amount of time she
took off. She failed to explain how the work duties caused or aggravated appellant’s medical
condition. In a claim alleging an occupational disease based on repetitive trauma from work
activity, the frequency and duration of the various activities is vital information.
Medical reports without adequate rationale on causal relationship are of diminished
probative value and do not meet an employee’s burden of proof.8 The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported
by affirmative evidence, address the specific factual and medical evidence of record and provide
medical rationale explaining the relationship between the diagnosed condition and the
established incident or factor of employment.9 Therefore, Dr. Molero’s medical reports are not
sufficient to meet appellant’s burden of proof.
The undated medical report by Dr. Millan essentially duplicated the findings and wording
of Dr. Molero’s reports. Dr. Millan’s reports did not fill in the factual gaps left by Dr. Molero’s
reports. For the reasons stated above, her report is also insufficient to meet appellant’s burden of
proof.
LEGAL PRECEDENT -- ISSUE 2
To reopen a case for merit review under section 8128(a), the evidence or argument
submitted by a claimant must: (1) show that the Office erroneously applied or interpreted a
specific point of law; (2) advance a relevant legal argument not previously considered by the
Office; or (3) constitute relevant and pertinent new evidence not previously considered by the
Office.10 Section 10.608(b) of Office regulations provide that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.11
ANALYSIS -- ISSUE 2
The Board finds that the July 28, 2010 decision of the Office to deny the reopening of
appellant’s case for further consideration of the merits of her claim, pursuant to 5 U.S.C.
§ 8128(a), did not constitute an abuse of discretion.

8

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

9

See Lee R. Haywood, 48 ECAB 145 (1996).

10

D.K., 59 ECAB 141 (2007).

11

K.H., 59 ECAB 495 (2008).

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Appellant submitted a July 8, 2010 one-paragraph medical report from Dr. Millan which
stated that appellant’s records showed that she was being followed for low back strain, Tarlov
cyst, and bilateral knee degenerative joint disease and that a recent MRI scan of the knees
showed bilateral patellar impingement. Dr. Millan asserted that appellant’s job duties
contributed to the need for her job restrictions because her lumbar strain and degenerative joint
disease were aggravated by lifting weights, twisting the lower spine, frequently changing
position from sitting to standing during the day, standing for long periods and climbing stairs.
She also noted that appellant’s back condition could have improved but became worse when
appellant resumed carrying mail.
This report is essentially repetitive in every significant detail of the physician’s undated
report received earlier by the Office. It is insufficient to reopen the case for review of the merits
of appellant’s claim.12 The only new statement in the report was a one-sentence speculation that
appellant’s back condition could have had a chance to improve but became worse by returning to
carry mail. Dr. Millan recommended for the first time that appellant drive no more than 20 miles
a day because additional driving might affect her joint conditions. She explains also that an
earlier recommendation that appellant work only on weekdays was prompted by the possible side
effects of her then-current medication regiment. These slight additions do not compensate for
the failure of the record to provide detailed medical rationale to explain and support the medical
opinion that appellant’s diagnosed conditions were caused or aggravated entirely or in part by
her job duties.13
Appellant’s brief statement in support of the reconsideration request did not establish that
the Office erroneously applied or misinterpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office.14 Because her July 8, 2010 application
for reconsideration failed to meet any of the three standards for obtaining a merit review of her
claim under section 8128(a) of the Act, the Board will affirm the denial of the reconsideration
request.15
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
lumbar strain with Tarlov cyst and Hoffa’s syndrome is causally related to factors of her
employment as a letter carrier. The Office properly denied her request for reconsideration
without a merit review.

12

Evidence that repeats of duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. Eugene F. Butler, 36 ECAB 393 (1984).
13

Although the Office placed excessive emphasis on the question of a “firm diagnosis,” it is also clear that the
Office considered the issue of causal connection between the accepted incident and the conditions identified by
appellant.
14

Sherry A. Hunt, 49 ECAB 467 (1998).

15

Id.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated July 28 and March 10, 2010 are affirmed.
Issued: June 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF THE ARMY, FORT SAM
HOUSTON, TX, Employer
__________________________________________

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

Docket No. 12-267
Issued: June 11, 2012

Case Submitted on the Record

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

JURISDICTION
On December 8, 2011 appellant filed a timely appeal from an October 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined appellant was not entitled to
continuation of pay.
FACTUAL HISTORY
On April 11, 2011 appellant, then a 63-year-old materials handler, filed a traumatic injury
claim (Form CA-1) alleging that on March 28, 2011 when “getting off the bus going down the
steps my leg gave out.” He described the injuries as left leg, low back and emotional stress. The
incident occurred at 6:45 a.m. on March 28, 2011.
1

5 U.S.C. § 8101 et seq.

On April 7, 2011 appellant stated that on March 28, 2011 he had arrived at the employing
establishment parking lot, parked his car and boarded the shuttle bus. He stated the seats were
cramped and uncomfortable and when he got up his left leg felt weak. As appellant was
descending the steps, his left leg gave out and began to hurt. According to him, the bus dropped
him off in front of the medical center where he works. Appellant also referred to lifting heavy
pallets after returning to work on March 30, 2011 and emotional stress as a result of being falsely
accused of bringing a gun to work.
Appellant submitted an April 7, 2011 hospital discharge report related to treatment on
April 2, 2011 for deep vein thrombosis (DVT). In an attending physician’s report (Form CA-20)
dated April 12, 2011, Dr. Leo Edwards, an internist, provided a history of swelling in the left leg
due to a blood clot. He diagnosed DVT, back strain and emotional stress, checking a box “no”
as to whether the conditions were causally related to an employment activity. Dr. Edwards
completed a duty status report (Form CA-17) dated April 12, 2011. The description of injury
was getting off a bus at front entrance of hospital and the diagnoses “due to injury” were back
pain and clot in leg.
By decision dated May 27, 2011, OWCP denied the claim for compensation. It found the
medical evidence was insufficient to establish an injury causally related to the employment
incident.
By decision dated June 30, 2011, OWCP denied appellant’s claim for continuation of
pay. It found that the claim was not accepted and therefore he was not entitled to continuation of
pay.
Appellant requested a review of the written record. By decision dated October 19, 2011,
OWCP’s hearing representative affirmed the June 30, 2011 decision.2
The hearing
representative found that appellant did not sustain a traumatic injury and therefore was not
entitled to continuation of pay.
LEGAL PRECEDENT
OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay,
an employee must: (1) have a traumatic injury which is job related and the cause of the disability
and/or the cause of lost time due to the need for medical examination and treatment; (2) file a
Form CA-1 within 30 days of the date of the injury; and (3) begin losing time from work due to
the traumatic injury within 45 days of the injury.3
ANALYSIS
Appellant filed a traumatic injury claim within 30 days for an injury on March 28, 2011.
OWCP has not, however, accepted a traumatic injury. The claim was denied by decision dated
May 27, 2011. Since there is no traumatic injury, there is no employment-related disability.
2

The record also contains an October 18, 2011 OWCP’s hearing representative decision affirming the denial of
the traumatic injury claim. That decision is under review by the Board under Docket No. 12-266. The evidence and
arguments submitted on appeal relate to the October 18, 2011 decision.
3

20 C.F.R. § 10.205(a)

2

Appellant has not established that he sustained “a traumatic injury which is job related and the
cause of the disability and/or the cause of lost time due to the need for medical examination and
treatment” as required by OWCP regulations. In the absence of an employment-related disability
caused by a traumatic injury, he is not eligible for continuation of pay. The Board finds OWCP
properly determined appellant was not entitled to continuation of pay in this case.
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 OWCP properly found appellant was not entitled to continuation of
pay.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 19 and June 30, 2011 are affirmed.
Issued: June 11, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3