United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.I., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Oakland Park, IL, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0634
Issued: February 15, 2022

Case Submitted on the Record

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

JURISDICTION
On March 15, 2021 appellant, through counsel, filed a timely appeal from an October 26,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish that her diagnosed
medical conditions were causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. 3 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 May 18, 2015 appellant, then a 53-year-old revenue officer, filed an occupational
disease claim (Form CA-2) alleging that she sustained right hand arthritis due to her repetitive
work duties including walking, bending, twisting, writing, typing documents, lifting bags with
files, and sitting due to prolonged driving. She also noted that she was at work when she had a
July 29, 2002 automobile accident and her “issues” did not arrive until after the accident.
Appellant noted that she first became aware of her condition and realized its relation to her federal
employment on April 27, 2015.
By development letter dated June 16, 2015, OWCP noted that no evidence had been
submitted with her claim. It advised her of the type of factual and medical and factual evidence
necessary to establish her claim and afforded her 30 days to submit additional evidence.
In response, OWCP received x-ray interpretations of appellant’s right hand, hip, back,
knee, foot, and shoulder, dated April 24, May 18, June 18, and July 3 and 8, 2015.
In a June 1, 2015 report, Dr. Estella Hernandez, a treating Board-certified family
practitioner, related appellant’s medical and employment histories and provided physical
examination findings. She diagnosed right carpal tunnel syndrome and right hand osteoarthritis,
which were noted as work related.
A June 30, 2015 electromyogram (EMG) report signed by Dr. Engin Yilmaz, a Boardcertified psychiatrist and neurologist, reported evidence of lower extremity sensory motor axonal
polyneuropathy and mild-to-moderate right L4, L5, and S1 and mild left S1 chronic radiculopathy.
In a July 13, 2015 narrative report, Dr. Hernandez provided examination findings. She
noted that appellant related that she sustained brain injuries as the result of a work-related
automobile accident. Dr. Hernandez indicated that appellant’s work-related diagnoses included
right shoulder pain and osteoarthritis, shoulder tendinitis, right knee pain and osteoarthritis, right
hip pain and osteoarthritis, lumbar pain and radiculopathy, lower back osteoarthritis, right wrist
carpal tunnel syndrome, right wrist osteoarthritis, right lower extremity injury, right lower
extremity peroneal tendinitis, lower extremity varicose veins, right knee osteoarthritis, right
plantar fasciitis, and right foot pain and osteoarthritis.

3

Docket No. 18-0634 (issued January 23, 2019).

2

In a July 15, 2015 supplemental statement, appellant related that, as a result of her July 28,
2002 employment-related motor vehicle accident, she sustained brain injuries and several arthritic
conditions of the shoulder, hand, back, hip, knee, leg, and foot. She further explained that these
conditions affected her walking, bending, twisting, sleeping, writing, typing, carrying, lifting and
sitting while driving.
By decision dated September 2, 2015, OWCP denied appellant’s claim, finding that the
evidence of record did not establish that appellant’s diagnosed medical conditions were causally
related to her accepted employment factors.
In a report dated September 24, 2015, Dr. Hernandez reiterated her opinion that appellant’s
diagnosed conditions had been caused by her automobile accident.
On September 29, 2015 appellant filed a request for a review of the written record. She
also submitted a September 16, 2015 letter describing her work duties and the July 29, 2002 motor
vehicle accident.
By decision dated February 9, 2016, an OWCP hearing representative affirmed the denial
of appellant’s occupational disease claim. On remand OWCP was instructed to administratively
combine OWCP File No. xxxxxx702 with OWCP File No. xxxxxx4 66, the claim related to
appellant’s July 29, 2002 motor vehicle accident, as appellant appeared to be claiming a recurrence
of disability under OWCP File No. xxxxxx466.
In a letter dated June 15, 2016, and received on June 21, 2016, appellant detailed the duties
of her position and her medical condition. She asserted that, as a result of working the past 14
years as a revenue officer, she developed pain in her right knee, lower extremity, hip, shoulder,
wrist, foot, and lower back.
In a letter dated August 2, 2016, OWCP informed appellant that OWCP File No.
xxxxxx702 and OWCP File No. xxxxxx466 had been combined for administrative case
management as instructed by the hearing representative. It advised that OWCP File No.
xxxxxx466 was designated as the master file number.
On August 5, 2016 4 OWCP received additional medical evidence.
Progress notes covering the period March 31, 2004 to February 12, 2016 detailed
examination findings. Appellant also submitted a magnetic resonance imaging (MRI) scan dated
August 19, 2015 and a January 23, 2016 computerized tomography (CT) scan.
In a narrative letter dated January 24, 2016, Dr. J. Michael Morgenstern, an examining
orthopedic surgeon, diagnosed unspecified leg peroneal tendinitis, plantar fasciitis disorder,
peroneal tendinitis disorder, right pes plantus, knee osteoarthritis, carpal tunnel syndrome, right
hip joint pain, lumbar radiculopathy, shoulder secondary osteoarthritis’, shoulder tendinitis, right
4

This evidence was located in the master file OWCP File No. xxxxxx466. Under that file OWCP accepted that
appellant sustained a concussion, intracranial injury, adjustment disorder with depressed mood. It subsequently
accepted aggravation of unilateral primary osteoarthritis of the right hip and knee, and aggravation of lumbar
radiculopathy due to the accepted July 29, 2002 automobile accident.

3

shoulder lesion, concussion with loss of consciousness, and traumatic brain injury, right shoulder
pain and osteoarthritis, shoulder tendinitis, right knee pain and osteoarthritis, right hip pain and
osteoarthritis, lumbar pain and radiculopathy, lower back osteoarth ritis, right wrist carpal tunnel
syndrome, right wrist osteoarthritis, right lower extremity injury, right lower extremity peroneal
tendinitis, lower extremity varicose veins, right knee osteoarthritis, right plantar fasciitis, and right
foot pain and osteoarthritis. He provided examination findings and attributed the diagnosed
conditions to appellant’s 2002 motor vehicle accident. On August 12, 2016 appellant requested
reconsideration.
By decision dated January 12, 2018, OWCP found that the evidence of record was
insufficient to warrant merit review of the decision dated February 9, 2016 as the evidence
submitted with the request for reconsideration was irrelevant or immaterial and , thus, had no
bearing on the issue, or was inconsequential to the issue of causal relationship.
Appellant appealed to the Board and, by decision dated January 23, 2019,5 the Board set
aside the January 12, 2018 decision, finding that appellant’s right to a review of the merits of the
case by the Board was jeopardized by OWCP’s delay in issuing its January 12, 2018 decision and
did not comply with its procedures. The Board noted that OWCP issued its decision more than
518 days after appellant requested reconsideration. The Board remanded the case to OWCP for a
merit review to be followed by the issuance of an appropriate decision .
By decision dated June 11, 2019, OWCP considered the merits of appellant’s claim. It
denied appellant’s claim as the medical evidence failed to explain how the accepted employment
factors caused or aggravated the diagnosed conditions.
On May 26, 2020 appellant, through counsel, requested reconsideration. In support of her
request, she submitted a May 22, 2020 report from Dr. Morgenstern.
Dr. Morgenstern, in his May 22, 2020 report, noted appellant’s history of injury and
medical treatment, job duties, and provided physical examination findings. He reported the job
duties of a revenue officer included excessive walking, bending, twisting, typing, driving for long
periods, lifting case bags filled with files, interviewing and contacting taxpayers and/or
representatives, investigating the collection of delinquent taxes, and securing delinq uent tax
returns. Physical examination findings of appellant’s right shoulder demonstrated: positive empty
can, Apley’s scratch, and lift off tests; notable swelling of the right anterolateral shoulder; and
limited right shoulder forward and internal rotation. Examination of appellant’s right hip and back
revealed no visible musculoskeletal deformities, lumbar region and right greater trochanteric pain
on palpation, notable paraspinal muscles spasms with palpation. Antalgic gait, positive tripod
signs, positive straight leg testing, pain with lumbar flexion and extension, and notable crepitation.
An examination of appellant’s right knee demonstrated: no swelling, edema, effusion, or gross
bony deformities; mild discomfort on peripatella palpation; and negative Clarke’s, McMurray’s,
Lachman’s maneuver, posterior and anterior draw, and Varus and Valgus tests. Dr. Morgenstern’s
examination of appellant’s right foot and ankle demonstrated notable bilateral varicose veins,
discomfort on right foot palpation, negative Homan’s sign, pain on palpation of the plantar fascia
region, and negative anterior draw, Tinel’s, Squeeze, and external and internal rotation stress tests,
5

Supra note 3.

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negative inversion and eversion maneuvers. He diagnosed right shoulder, foot, knee, hip, and
lumbar osteoarthritis; right shoulder tendinitis; plantar fasciitis; peroneal tendinitis; right pes
plantus; and lumbar radiculopathy, which he attributed to appellant’s repetitive work duties.
Objective testing demonstrated right shoulder acromioclavicular tendon calcifications, and limited
active and passive range of motion. Dr. Morgenstern noted that the grinding, clicking, and popping
with normal shoulder movement was abnormal for appellant’s age. He explained that appellant’s
repetitive lifting, bending, reaching, typing, and driving for long periods resulted in right shoulder
joint muscles and tendons repetitive strains, microscopic tearing, and arthritis. Dr. Morgenstern
also noted the driving and typing for long hours required her arms to be outstretched placing
abnormal stresses on her shoulders, elbows, and wrists ligament and muscles. The abnormal stress
caused microscopic right shoulder tearing of her tendons, inflammation, and arthritis. In addition,
strain caused by her constant reaching, lifting, pulling, pushing, and overhead stretching
accelerated the wear and tear on her right shoulder joint space and tendons. Further,
Dr. Morgenstern noted the repetitive walking, lifting, and twisting caused back and hip joint
sacroiliac and iliolumbar joints strains resulting in lumbar radiculopathy and lumbar and right hip
osteoarthritis. In support of this conclusion, he explained the repetitive sitting and lifting heavy
items increased the pressure on the lumbar discs causing spinal nerve impingement and left lumbar
disc injury. This additional lower lumbar vertebra stress caused multiple iliolumbar and sacroiliac
ligament strains and lower disc fibers and joint capsule, which in turn caused a loss of structural
integrity. Next, Dr. Morgenstern attributed appellant’s right knee osteoarthritis to stress caused by
repetitive walking, lifting, and twisting. He explained that these activities caused multiple
ligament strains resulting in a loss of structural integrity. This loss of structural integrity led to the
bones rubbing and coming together resulting in osteoarthritis. Dr. Morgenstern also attributed
appellant’s plantar fasciitis to her repetitive work duties. He explained that the strain and pressure
due to excessive walking and weight bearing caused micro tearing in the fascia leading to plantar
fasciitis. In concluding, Dr. Morgenstern opined that the diagnosed right shoulder, lumbar, rip hip,
right knee, and right foot osteoarthritis, shoulder tendinitis, lumbar radiculopathy, and plantar
fasciitis were all due to her repetitive work duties and not to the natural degenerative processes.
He reiterated that the mechanism of injury was appellant’s strenuous repetitive work duties, the
length of exposure, and thinning of her joint spaces.
By decision dated October 26, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, 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

6

Supra note 2.

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injury.7 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease. 8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occ urrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 12
ANALYSIS
The Board finds that this case is not in posture for a decision.
Appellant submitted a May 22, 2020 report in which Dr. Morgenstern opined that her
employment duties caused right shoulder, lumbar, rip hip, right knee, and right foot osteoarthritis,
shoulder tendinitis, lumbar radiculopathy, and plantar fasciitis. Dr. Morgenstern indicated that it
was uncontroverted that appellant performed her revenue officer for over 18 years, which required
her to excessive walking, driving, bending, twisting, typing, lifting case bags filled with files, and
driving for long periods in a repetitive fashion. He attributed the right shoulder conditions to
repetitive lifting, bending, reaching, typing, and driving which he found contributed to strains and
microscopic tearing resulting in tendon tearing, inflammation, and arthritis. Dr. Morgenstern
explained the repetitive sitting and lifting heavy items increased the pressure on the lumbar discs
causing spinal nerve impingement and left lumbar disc injury causing multiple iliolumbar and
7

M.R., Docket No. 19-1954 (issued March 1, 2021); E.S., Docket 18-1580 (issued January 23, 2020); M.E., Docket
No. 18-1135 (issued January 4, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57
ECAB 364 (2006).
8

M.R., id.; E.S., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
9

E.S., supra note 7; R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238,
241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
10

W.M., Docket No. 14-1853 (issued May 13, 2020); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
11

E.S., supra note 7; M.V., Docket No. 18-0884 (issued December 28, 2018).

12

Id.; Victor J. Woodhams, supra note 9.

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sacroiliac ligament strains and lower disc fibers and joint capsule, which in turn led to a loss of
structural integrity. He attributed appellant’s right knee osteoarthritis to stress caused by repetitive
walking, lifting, and twisting, which he explained caused multiple ligament strains resulting in a
loss of structural integrity and bones rubbing and coming together resulting in osteoarthritis.
Dr. Morgenstern also attributed appellant’s plantar fasciitis to her repetitive work duties.
Specifically, he explained the strain and pressure caused excessive walking and weight bearing
contributed to micro tearing over the plantar fascia. Dr. Morgenstern advised the long-term
mechanism of injury was due to the length of appellant’s exposure to the repetitive strenuous
nature of her work and thinning of joint spaces, which applied pressure and strain to the tendons,
cartilage, ligaments, and meniscus of the lumbar and right shoulder, hip, knee, and foot areas.
The Board notes that Dr. Morgenstern offered an affirmative opinion regarding causal
relationship and provided a physiological explanation as to how the accepted employment factors
could cause or contribute to appellant’s lumbar and right shoulder, hip, knee, and foot conditions.
While the opinion of Dr. Morgenstern is insufficiently rationalized to meet appellant’s burden of
proof, the Board finds that it is sufficient to require further development of the record as to whether
appellant’s lumbar and right shoulder, hip, knee, and foot conditions are causally related to the
accepted factors of her federal employment.13
It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. OWCP has an obligation to see that justice is
done.14 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations
at section 10.121. 15
The case will therefore be remanded to OWCP for preparation of a statement of accepted
facts, which includes a detailed summary of the accepted factors of appellant’s employment, and
the conditions accepted in the master file. OWCP shall thereafter refer appellant to a specialist in
the appropriate field of medicine for an examination and opinion on the issue of whether appellant
sustained a medical condition causally related to the accepted factors of her federal employment.
If the physician opines that the diagnosed conditions are not causally related to the accepted
employment factors, he or she must provide a rationalized explanation as to why their opinion
differs from that articulated by Dr. Morgenstern. After this and other such further development as
OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

K.M., Docket No. 20-1373 (issued July 27, 2021); A.R.., Docket No. 20-1425 (issued July 15, 2021); G.M.,
Docket No. 19-0657 (issued September 13, 2019); see also John J. Carlone, 41 ECAB 354 (1989); Horace
Langhorne, 29 ECAB 820 (1978).
14

V.P., Docket No. 20-0415 (issued July 30, 2020); S.C., Docket No. 19-0920 (issued September 25, 2019); E.P.,
Docket No. 20-0898 (issued February 21, 2017).
15

20 C.F.R. § 10.121.

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ORDER
IT IS HEREBY ORDERED THAT the October 26, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 15, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Memphis, TN,
Employer
__________________________________________

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

Docket No. 08-476
Issued: May 19, 2008

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 November 28, 2007 appellant timely appealed the July 19, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for wage-loss
compensation. 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 was disabled from October 25 to November 8, 2005 due to
her August 8, 2001 employment injury.
FACTUAL HISTORY
Appellant, a 55-year-old mail handler, has an accepted occupational disease claim for left
foot osteoarthritis, which arose on or about August 8, 2001.1 She had undergone several left foot
1

The Office had previously accepted a 1996 left foot bunion (hallux valgus-acquired) under claim number 060667956.
Appellant’s podiatrist, Dr. Frank A. Ognibene, initially diagnosed left foot osteoarthritis on
November 12, 1998.

surgical procedures between August 1995 and August 2001. On November 16, 2005 appellant
filed a claim for compensation (Form CA-7) for the period October 25 to November 8, 2005
under claim number 06-0667956. However, on September 26, 2006 she refiled her Form CA-7
under the current claim number (06-2154558). Dr. Ognibene, appellant’s podiatrist, provided a
November 8, 2005 work certificate indicating that she was excused from work during the period
October 24 to November 8, 2005. He also noted that appellant was able to resume light-duty
work on November 9, 2005, with limited walking and standing.2 On October 23, 2006 the Office
advised appellant that she needed to submit medical evidence establishing her disability for work
for the entire period claimed. The Office subsequently received another copy of Dr. Ognibene’s
November 8, 2005 return to work certificate.
In a decision dated January 9, 2007, the Office denied appellant’s claim for wage-loss
compensation for the period October 25 to November 8, 2005.
Appellant requested reconsideration on January 18, 2007. She explained that she had
undergone foot surgery and was off work until November 9, 2005. Appellant also requested an
oral hearing on January 18, 2007. She later clarified that she wanted a hearing rather than
reconsideration before the Office. However, appellant missed her scheduled hearing and the
Office instead conducted a review of the written record.
In a June 14, 2007 letter, Dr. Ognibene indicated that he had performed foot surgery on
October 24, 2005 for correction of a hammertoe and exostosis. He also noted that under his
advisement appellant remained off work from October 24 to November 8, 2005.
By decision dated July 19, 2007, the Office hearing representative denied appellant’s
claim for wage-loss compensation for the period October 25 to November 8, 2005. The hearing
representative found that appellant had not established that her absence from work during the
claimed period was due to her accepted condition of left foot osteoarthritis or otherwise
employment related.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of her claim, including
that the medical condition for which compensation is claimed is causally related to the claimed
employment injury.3 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.4 The evidence submitted must be reliable,
probative and substantial.5

2

The employing establishment indicated that appellant returned to full-time, limited-duty work on
November 9, 2005.
3

20 C.F.R. § 10.115(e) (2007); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

4

20 C.F.R. § 10.115(f).

5

20 C.F.R. § 10.115.

2

ANALYSIS
Appellant was off work from October 25 to November 8, 2005 recuperating from foot
surgery she underwent on October 24, 2005. Dr. Ognibene confirmed that he performed foot
surgery on October 24, 2005 for correction of a hammertoe and exostosis. And it was on his
advice that appellant remained off work until November 9, 2005. What is absent from the
record, however, is any indication that the October 24, 2005 surgery was related to appellant’s
accepted condition of left foot osteoarthritis. Dr. Ognibene did not indicate which foot he
operated on and he did not specifically relate the October 24, 2005 surgery to appellant’s
accepted condition. Both the November 8, 2005 return to work certificate and Dr. Ognibene’s
June 14, 2007 letter fail to address the issue of causal relationship. Thus, the record is devoid of
any medical evidence linking appellant’s claimed disability to her accepted employment injury
of August 8, 2001.
CONCLUSION
Appellant did not establish entitlement to wage-loss compensation for the period
October 25 to November 8, 2005.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2008
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 14-571
Issued: July 1, 2014

Case Submitted on the Record

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

JURISDICTION
On January 23, 2014 appellant filed a timely appeal from a December 11, 2013 merit
decision and a January 6, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a loss of
hearing due to factors of his federal employment; and (2) whether OWCP properly denied his
request for reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 22, 2013 appellant, then a 54-year-old special agent, filed an occupational
disease claim alleging on that date that he realized that he had mild-to-moderate high-frequency
1

5 U.S.C. § 8101 et seq.

hearing loss in both ears. He attributed his condition to conducting firearms training or
instructing others in firearms training since 1998; performing the duties of a Special Weapons
and Tactics (SWAT) team member from November 1990 until August 2012; and as a sniper on
SWAT teams from May 1992 until August 2012. Appellant was advised of his hearing loss
during a fitness-for-duty examination on August 22, 2013.
In a letter dated September 3, 2013, OWCP requested that appellant provide additional
factual and medical evidence in support of his claim. It allowed 30 days for a response. OWCP
also requested information regarding appellant’s claim from the employing establishment on the
same date.
On September 26, 2013 appellant responded that he was not sure of the first date that he
became aware of his loss of hearing but it may have been in 2003. During his bi-annual fitnessfor-duty examinations, he was beginning to show a high-frequency hearing loss in his left ear.
Appellant also developed loss of hearing in his right ear with tinnitus. He attributed his hearing
loss to exposure to loud noises in the performance of duty as well as his hobby of competition
firearms shooting. Appellant usually shot two pistol matches a month for a total of 18 to 20
months and two or three multi-gun, rifle, pistol and shotgun, matches a year. As a SWAT agent,
training did not allow for normal ear muff sound protection until 2005 and radio communication
was done with a small air hose which did not provide the same degree of sound protection.
Appellant stated that his SWAT training and missions also included the use of flash-bangs as
diversion devices which were louder than any weapon. He engaged in SWAT training two days
a month and in four actual SWAT missions with firearms and flash-bangs and additional
firearms and sniper training monthly.
By decision dated December 11, 2013, OWCP denied appellant’s claim on the grounds
that he failed to submit any medical evidence addressing his loss of hearing.
Appellant requested reconsideration on December 19, 2013 through an appeal request
form by placing a checkmark by reconsideration. He stated that a medical report dated
December 18, 2013 was attached. However, the record on appeal does not contain any medical
evidence.
By decision dated January 6, 2014, OWCP denied appellant’s request for reconsideration
on the grounds that he failed to submit any relevant new evidence of argument in support of his
request.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
2

20 C.F.R. § 10.5(q).

2

claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
ANALYSIS -- ISSUE 1
Appellant submitted factual evidence pertaining to his exposure to noise in the
performance of duty. The evidence establishes that he was exposed to gunfire and flash-bangs
while performing his duties as a special agent since 1990. The Board, however, finds that
appellant has not submitted medical evidence to establish that he sustained hearing loss causally
related to that noise exposure.4 Appellant did not submit any medical evidence addressing his
hearing loss or any audiometric examination. Without such medical evidence, he failed to meet
his burden of proof to establish work-related hearing loss.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.5
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.6 Section
10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.7

3

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

4

D.B., Docket No. 13-1988 (issued April 18, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(c) (February 2013).
5

5 U.S.C. §§ 8101-8193, 8128(a).

6

20 C.F.R. § 10.606.

7

Id. at § 10.608.

3

ANALYSIS -- ISSUE 2
Appellant requested reconsideration on December 19, 2013 and stated that he was
submitting medical evidence in support of his hearing loss claim. The record does not contain
any evidence in support of the December 19, 2013 request for reconsideration. Appellant did not
submit arguments or evidence showing that OWCP erroneously applied or interpreted a specific
point of law did not advance a relevant legal argument not previously considered by OWCP and
did not include relevant and pertinent new evidence not previously considered by OWCP. The
Board finds that OWCP properly declined to reopen appellant’s claim for consideration of the
merits.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical evidence to establish
that he sustained an employment-related loss of hearing. The Board further finds that OWCP
properly denied his request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 and December 11, 2013
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF STATE, AMERICAN
EMBASSY KABUL, Kabul, Afghanistan,
Employer
__________________________________________

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Appearances:
Denise Prado, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1292
Issued: March 13, 2019

Case Submitted on the Record

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

JURISDICTION
On June 14, 2018 appellant, through his representative, filed a timely appeal from a
May 23, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.3
ISSUE
The issue is whether OWCP determined the proper pay rate when calculating appellant’s
May 23, 2018 schedule award.
FACTUAL HISTORY
On December 4, 2011 appellant, then a 53-year-old district support team leader, filed a
traumatic injury claim (Form CA-1) alleging that on December 2, 2011 he sustained bilateral knee
injuries as a result of a bomb blast from a vehicle-borne improvised explosive device (IED). He
stopped work on December 2, 2011. After a period of intermittent work absences from
December 23, 2011 through August 9, 2013, appellant returned to the United States. He
underwent bilateral total knee arthroplasties on August 22, 2013,4 and resigned from the
employing establishment effective September 5, 2013.
On September 30, 2013 OWCP accepted that appellant sustained a contusion of the left
knee and left lower leg. It subsequently expanded its acceptance of the claim to include bilateral
knee arthritis, bilateral secondary osteoarthritis of left knee, post-traumatic stress disorder (PTSD),
major depressive disorder, a postoperative infection of the left knee, septic arthritis of the left knee,
and a left quadriceps tendon rupture.
On December 18, 2017 appellant filed a claim for a schedule award (Form CA-7).5 In
support of his claim, he submitted a narrative report dated November 11, 2017 by Dr. Nathan
Momberger, an attending Board-certified orthopedic surgeon, and an impairment evaluation dated
December 4, 2017 by Dr. John W. Ellis, an attending Board-certified family practitioner, who
found that appellant had attained MMI.
In a report dated January 17, 2018, Dr. Michael M. Katz, an OWCP district medical adviser
and Board-certified orthopedic surgeon, reviewed the medical record. He found that appellant had
attained MMI as of December 4, 2017, the date of Dr. Ellis’ examination. Referring to the
diagnosis-based lower extremity impairment criteria of the sixth edition of the American Medical

2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the May 23, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.
4

Prior to the injury, on August 15, 2011, appellant had undergone bilateral arthroscopic partial medial
meniscectomies.
5
Appellant had filed a prior schedule award claim on February 22, 2016, but the claim was found to be not in
posture for development as the record indicated that he had not yet attained maximum medical improvement (MMI).

2

Association, Guides to the Evaluation of Permanent Impairment,6 Dr. Katz calculated 63 percent
permanent impairment of the left lower extremity.
In a memorandum dated February 7, 2018, OWCP noted that appellant’s base pay rate as
of December 23, 2011, the date his disability began, was $136,134.00 per year or $2,617.96 per
week. Appellant also received Sunday premium pay of $130.50 for two weeks each year, equal to
$261.00 per year or $5.02 per week; availability pay of $916.27 per week or $47,646.00 per year;
and other hazard pay of $916.27 per week or $47,646.00 per year. OWCP totaled these amounts
to equal a weekly pay rate of $4,581.00. It noted that appellant would be paid schedule award
compensation at the two-thirds rate as he had no dependents.
By decision dated February 7, 2018, OWCP granted appellant a schedule award for 63
percent permanent impairment of the left lower extremity. The period of the award, 181.44 weeks,
ran for the period from December 4, 2017 to May 27, 2021. OWCP based the award on appellant’s
weekly pay rate as of December 23, 2011 of $4,581.00 multiplied by the 66 2/3 rate for a claimant
with no dependents, equaling $3,054.00. However, his weekly compensation rate was limited to
$1,971.05, the maximum compensation rate (MAX), with continuing payments each four weeks
of $7,884.20.
On February 22, 2018 appellant, through counsel, requested reconsideration. He submitted
an updated claim for compensation (Form CA-7) listing his wife as an eligible dependent.
Appellant requested that OWCP adjust his schedule award compensation rate from 66 2/3 percent
to 75 percent.
By decision dated May 23, 2018, OWCP affirmed its February 7, 2018 schedule award
decision, as modified. It found that appellant was entitled to receive monetary compensation at
the 75 percent augmented rate as of March 4, 2018, as his wife was an eligible dependent. OWCP
further found, however, that the increase in his compensation rate did not change his schedule
award payments as the $1,971.05 weekly payment was already at the MAX rate for the year 2018.
It explained that multiplying appellant’s weekly wage of $4,581.00 by either the 66 2/3 percent or
75 percent compensation rate yielded an amount greater than the MAX weekly compensation rate
of $1,971.05.
LEGAL PRECEDENT
The amount of compensation paid is a function of the injured employee’s pay rate.7
Monthly pay for compensation purposes means the monthly pay at the time of injury, or the
monthly pay at the time disability begins, or the monthly pay at the time compensable disability
recurs, whichever is greater.8 When a schedule award involves a traumatic injury claim with prior

6

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

7

20 C.F.R. § 10.404(b).

8
5 U.S.C. § 8101(4); 20 C.F.R. § 10.5(s); R.M., Docket No. 17-1759 (issued July 6, 2018); Samuel C. Miller, 55
ECAB 119 (2003).

3

disability, the applicable pay rate is the greatest of the established pay rates.9 Where there was no
prior injury-related disability from work, the date-of-injury pay rate should be used.10
Under OWCP’s procedures, elements in pay rate include Sunday premium, night
differential, and hazard pay.11 However, its procedures also provide that elements excluded from
pay rate calculations include additional pay or post allowance authorized outside the United States
and its possessions because of differential in cost of living or other special circumstances.12
Section 8112 of FECA provides that the monthly rate of compensation for disability,
including augmented compensation for eligible dependents, may not be more than 75 percent of
the monthly pay of the maximum rate of pay for GS-15.13 OWCP’s implementing regulation
provides that “[c]ompensation for total or partial disability may not exceed 75 percent of the basic
monthly pay of the highest step of grade 15 of the General Schedule.”14 OWCP’s procedures
provide that the MAX applies to schedule awards.15
ANALYSIS
The Board finds that OWCP determined the proper pay rate when calculating appellant’s
May 23, 2018 schedule award.
OWCP granted appellant a schedule award for 63 percent permanent impairment of the left
lower extremity based on an effective pay rate of December 23, 2011, which included Sunday
premium pay, availability pay, and hazard pay.
As previously noted, for compensation purposes in determining pay rate, monthly pay at
the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time
compensable disability recurs, whichever is greater, should be used.16 The Board finds that
appellant’s left lower extremity injury occurred on December 2, 2011 and that disability began on
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900, Exhibit 1 -Determining Effective Pay Rate Date for Schedule Awards (September 2011).
10

Id.

11

See Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.900.7a(2) (March 2011). See also L.G., Docket
No. 17-0699 (issued August 9, 2018).
12

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.900.6b.

13

5 U.S.C. § 8112(a). The only situation in which the maximum compensation rate may be exceeded is if the
employee’s disability was “a result of an assault which occurs during an assassination or attempted assassination of a
Federal official described under section 351(a) or 1751(a) of Title 18, and was sustained in the performance of duty.”
5 U.S.C. § 8112(b).
14

20 C.F.R. § 10.406(a). See also Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.901.14, Maximum
Compensation (MAX), Exhibit 2, Maximum Compensation Rates (February 2013).
15

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.7(g), Schedule Award Payments, Minimum
(MIN) and Maximum (MAX) Rates (June 2013).
16

Supra note 7.

4

December 23, 2011. OWCP therefore selected the appropriate date that disability began in
calculating appellant’s schedule award.17
The maximum allowable compensation for the year 2018 may not exceed 75 percent of the
basic monthly pay of the highest step of grade 15 of the General Schedule.18 The only statutory
exception for which the maximum compensation rate may be exceeded is if the employee’s
disability was a result of an assault which occurs during an assassination or attempted assassination
of a federal official described under section 351(a) or 1751(a) of Title 18, and was sustained in the
performance of duty. The evidence of record does not support such an exception in this case.
Accordingly, the maximum allowable weekly rate under FECA for 2018 is $1,971.05. As
multiplying appellant’s weekly pay rate of $4,581.00 by the 75 percent rate for a claimant with
eligible dependents would result in weekly payments of $3,435.75, an amount greater than the
$1,971.05 MAX rate as set forth in OWCP’s procedures,19 OWCP properly authorized continuing
compensation at the MAX rate.
On appeal appellant’s representative does not dispute the percentage of permanent
impairment awarded or the effective date of disability. Rather, she contends that the MAX rate
should not apply to schedule awards noting 20 C.F.R. § 10.406(a) applies only to total or partial
disability claims, not schedule award claims. However, a schedule award is compensation for
permanent disability based upon permanent impairment paid for the loss, or loss of use, of a
member or function of the body as set forth in 5 U.S.C. § 8107(a).20 Therefore, the representative’s
contentions are found to lack merit. Furthermore, as explained above, OWCP’s procedures clearly
provide that the MAX compensation rate applies to schedule awards.21
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP determined the proper pay rate when calculating appellant’s
May 23, 2018 schedule award.

17

Id.

18

20 C.F.R. § 10.406(a).

19

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.901.14.

20
Section 8107 (a) provides in part: “(a) If there is permanent disability involving the loss, or loss of use, of a
member or function of the body or involving disfigurement, the employee is entitled to basic compensation for the
disability, as provided by the schedule in subsection (c) of this section, at the rate of 66 2/3 percent of his monthly
pay.” Subsection (c) is the compensation schedule for schedule award purposes.
21

Supra note 13.

5

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 13, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Lyons, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1570
Issued: May 24, 2018

Case Submitted on the Record

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

JURISDICTION
On July 27, 2016 appellant, through counsel, filed a timely appeal from a March 2, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this claim.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The record provided the Board includes evidence received after OWCP issued its March 2, 2016 decision. The
Board’s jurisdiction is limited to the evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease in the performance of duty as alleged.
FACTUAL HISTORY
On November 23, 2015 appellant, then a 64-year-old food service worker, filed an
occupational disease claim (Form CA-2) alleging that she had developed a right knee condition
due to factors of her federal employment. She indicated that she first became aware of her
condition on November 16, 2011, but it was not until January 13, 2012 that she first realized it was
related to her employment. Appellant initially claimed to have injured her right knee due to a fall
on November 16, 2011. She further indicated that, after resuming full-duty work, which included
prolonged standing on a cement floor, her right knee worsened in January 2012 and she suffered
pain and discomfort on a daily basis. As for the timing of her notice of injury/claim, appellant
indicated that she had previously filed a claim with the employing establishment, which OWCP
assigned File No. xxxxxx255.4
The case record associated with OWCP File No. xxxxxx255 is not currently before the
Board. However, that claim was previously on appeal before the Board.5 As noted in the Board’s
May 5, 2016 decision, OWCP had accepted appellant’s January 13, 2012 traumatic injury claim
(Form CA-1) for a right knee contusion. Appellant resumed her regular duties on
January 17, 2012. On August 22, 2013 she filed a claim for recurrence of disability (Form CA2a) beginning June 3, 2013.6 The date of recurrence coincided with appellant’s right knee surgical
procedure to address her moderate-to-severe osteoarthritis. In a November 26, 2013 decision,
OWCP denied appellant’s recurrence of disability claim, which the Branch of Hearings and
Review affirmed by decision dated September 2, 2015.
In a January 22, 2016 development letter, OWCP advised appellant that it had not received
any documentation in support of her occupational disease claim. It explained the basic elements
for entitlement to FECA benefits, and afforded her 30 days to submit the required factual and
medical evidence in support of her claim. OWCP similarly requested information from the
employing establishment.
Appellant submitted a February 11, 2016 factual statement in response to OWCP’s
development letter. She explained that she originally fell at work on November 16, 2011 and
4

On the Form CA-2, the employing establishment indicated that it was not until November 23, 2015 that appellant
first reported her condition to her supervisor.
5
J.M., Docket No. 16-0306 (issued May 5, 2016). The Board affirmed the denial of appellant’s recurrence of
disability claim, finding that the medical evidence of record did not adequately explain how an accepted right knee
contusion caused appellant’s diagnosed conditions and disability beginning June 3, 2012, as opposed to a new
occupational disease or injury. The Board further found that the medical evidence of record supported that appellant
experienced new work factors supporting “new occupational disease or injury, an aggravation of preexisting bilateral
osteoarthritis, instead of a spontaneous change in the January 13, 2012 right knee contusion.”
6
Appellant previously filed a notice of recurrence for medical treatment beginning March 29, 2013. By decision
dated July 5, 2013, OWCP denied appellant’s recurrence claim for additional medical treatment. Id.

2

landed on both knees. Appellant also explained that on January 13, 2012 she severely bumped her
right knee and received a lot of treatment under that claim. Her food service job duties required
standing for long periods while on the tray line. Most days appellant stood for approximately 4½
hours on the tray line, but on Fridays and Saturdays, she often stood for 7 hours. She explained
that she was not permitted to sit while working on the tray line, and there were no other precautions
she could have taken to minimize the effects of her activities. Appellant explained that her knee
became painful after the January 13, 2012 incident, but she continued to work. She noted that she
underwent a total knee replacement on June 3, 2013. Appellant explained that her condition
developed gradually, but became really painful after the January 13, 2012 incident. With respect
to her prior claim, OWCP File No. xxxxxx255, appellant noted that her case was currently on
appeal before the Board following a September 2, 2015 decision by a representative of OWCP’s
Branch of Hearings and Review. She noted that the hearing representative found that the “‘new
or intervening exposure negate[d] a spontaneous worsening of the accepted right knee contusion.’”
Appellant explained that she filed the current occupational disease claim based on the hearing
representative’s finding that she implicated her post-January 13, 2012 job duties as the cause of
the right knee replacement.
Appellant noted that her symptoms included pain, and she was much worse at the end of
the day after standing in the tray line all day long. Her leg would feel better when she got home
and sat down and took the weight off. Appellant indicated that she was overweight (5’6” and 198
pounds) which made it very difficult to constantly stand, especially Fridays and Saturdays when
she would be on her feet seven hours a day. She also noted that there were no previous or similar
condition(s) other than the pain she was having in her knee at work since the original incident of
November 16, 2011 and the subsequent incident of January 13, 2012. Appellant believed that she
significantly aggravated her knee by standing on it in the tray line. While appellant did some
walking as part of life, she attributed her problem to constant standing on the tray line, as well as
the original accidental injuries at work.
OWCP also received a copy of appellant’s food service worker position description and a
February 16, 2016 narrative statement from appellant’s supervisor, F.B. F.B. indicated that he was
not present so he could not agree with appellant’s claim. He further indicated that many employees
had been working in nutrition and food service for more than 40 years and continually performed
the same assignments as appellant, and for this reason the employing establishment disputed
appellant’s claim. F.B. indicated that appellant was required to push and/or pull food trucks to a
ward, which consisted of 24 trays or less, weighing less than five pounds each. Appellant would
then distribute the food trays to patients. She performed these duties daily, once a day, rotating
after four hours. F.B. explained that appellant received her first assignment in the morning, and
then she was rotated to a different assignment after lunch break. With regard to precautions, he
noted that all employees were provided back brace supports and classes on how to lift and bend.
They also received two 15-minute breaks, one in the morning, and one at the end of the day. Also,
each job was rotated so no one employee was assigned to the same job for eight hours. F.B. also
noted that desserts were placed on a slotted mobile truck so it was easier to transport throughout
the kitchen.
Additionally, he indicated that appellant first reported the incident on
November 23, 2015. F.B. also indicated that appellant’s assignments were in accordance with her
position description, and they did not vary from her everyday duties according to her position
description.

3

OWCP did not receive any medical evidence in response to its January 22, 2016 claim
development letter.
By decision dated March 2, 2016, OWCP advised appellant that it would not issue a new
merit decision with respect to her current occupational disease claim. It explained that the current
claim was a duplicate of a claim she previously filed. OWCP noted that appellant had an accepted
traumatic injury claim for a January 13, 2012 right knee contusion under File No. xxxxxx255, and
that she had filed a recurrence claim in April 2013, which was denied on July 5, 2013. It further
noted that in August 2013 appellant filed a second recurrence claim under File No. xxxxxx255 for
disability beginning June 3, 2013. This latter recurrence claim was denied by decision dated
November 25, 2013, and affirmed by a representative of the Branch of Hearings and Review on
September 2, 2015.
With respect to the November 23, 2015 occupational disease claim (Form CA-2) presently
before the board under File No. xxxxxxx142, OWCP noted that appellant attributed her condition
to prolonged standing on a cement floor, and listed January 13, 2012 as the date she first realized
her disease or illness was employment related, which was the same date of injury for the previously
accepted right knee contusion. It indicated that appellant currently claimed the same conditions
as stated on her two prior recurrence claims, and had not cited any new work factors. Rather, she
merely raised the same issues previously denied as a recurrence claim under OWCP File No.
xxxxxx255. OWCP, therefore, declined to address the merits of the occupational disease claim in
OWCP File No. xxxxxx142, finding that it was duplicative of appellant’s recurrence claim under
File No. xxxxxx255. It advised appellant that she must utilize the appeal rights available to her
under OWCP File No. xxxxxx255.
LEGAL PRECEDENT
A claimant seeking benefits under FECA7 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the

7

See supra note 2.

8

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

4

disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
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.11
OWCP’s procedures contemplate that duplicate cases should not be created and that
development should not occur under the duplicate case.12
ANALYSIS
The Board finds that the case is not in posture for decision.
By decision dated March 2, 2016, OWCP denied the current occupational disease claim,
File No. xxxxxx142, finding it was a duplicate of appellant’s previously denied recurrence claim
under OWCP File No. xxxxxx255. However, when the Board issued its May 5, 2016 decision
affirming the September 2, 2015 hearing representative’s decision, it found that the medical
evidence of record supported that appellant sustained a “new occupational disease or injury, an
aggravation of preexisting bilateral osteoarthritis, instead of a spontaneous change in the
January 13, 2012 right knee contusion.”13 The Board, therefore, finds that appellant’s new claim
for an occupational disease under OWCP File No. xxxxxx142 is not a duplicate of the recurrence
claim in File No. xxxxxx255. As such, OWCP File No. xxxxxx142 will be remanded to OWCP
for a de novo review.
The Board also notes that OWCP’s procedures provide that cases should be doubled when
a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body.14 On remand OWCP should combine OWCP File Nos.

9

Victor J. Woodhams, id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

11

20 C.F.R. § 10.5(x).

12

See Federal (FECA) Procedure Manual, Part 1 -- Mail and Files, Creation of Cases, Chapter 1.400.7
(February 2000); see also S.W., Docket No. 16-0219 (issued April 5, 2016); W.M., Docket No. 09-1609 (issued
April 5, 2010).
13

J.M., Docket No. 16-0306 (issued May 5, 2016).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c)(1) (February 2000).

5

xxxxxx142 and xxxxxx255. Following this and such other development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2016 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: May 24, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BROWNS FERRY NUCLEAR PLANT,
Decatur, AL, Employer
__________________________________________

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

Docket No. 09-452
Issued: September 17, 2009

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 December 4, 2008 appellant filed a timely appeal from a November 4, 2008 decision
of the Office of Workers’ Compensation Programs that denied his hearing loss claim as
untimely. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant filed a timely claim for compensation under the Federal
Employees’ Compensation Act.1
On appeal appellant argues that his claim is timely because his sworn statement corrected
his CA-2 claim form. He contends that the evidence establishes that January 13, 2004 was the
date he first became aware that his condition was employment related, as supported by his
attending Board-certified otolaryngologist, Dr. William McFeely, Jr.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has been before the Board on two prior occasions. By decision dated May 5,
2006, the Board found that appellant’s claim was barred by the applicable time limitation
provisions of the Act.2 On October 20, 2006 the Board denied his reconsideration request.
Appellant subsequently requested reconsideration before the Office. In merit decisions dated
August 4 and October 12, 2007, the Office denied modification of the prior decisions. In
decisions dated January 16 and April 17, 2008, it denied appellant’s requests for reconsideration.
By merit decision dated November 4, 2008, the Office denied modification of the prior decision.
On May 12, 2008 appellant filed an appeal with the Board, docketed as 08-1573. On
September 26, 2008 he requested reconsideration before the Office and submitted additional
evidence. On October 14, 2008 appellant notified the Board that he wished to withdraw his
appeal. By order dated February 23, 2009, the Board dismissed his appeal docketed in 08-1573.
The law and the facts of the previous Board decisions and orders are incorporated herein by
reference.
Evidence submitted by appellant includes an employing establishment August 15, 1985
physical examination form report with an illegible signature.3 Appellant checked a box “no”
indicating that he had no ear disease, injury or hearing loss. It was noted that he was exposed to
loud noises in the Navy when he worked around diesel engines on a submarine. The
examination noted that appellant had bilateral tinnitus, probably due to some hearing loss in the
right ear. A severe hearing loss of the right ear was diagnosed. Appellant also submitted a
February 27, 2008 audiogram from North Alabama ENT Associates, and a February 27, 2008
letter addressed to Dr. McFeely describing his federal employment. He related that he worked in
a Navy shipyard and aboard submarines from 1968 to 1978. In a February 27, 2008 report,
Dr. McFeely noted that appellant was diagnosed with high frequency hearing loss in 1978,
confirmed by a 1985 audiogram, more pronounced on the right. He advised that appellant was
exposed to loud noise while working for the Navy from 1968 to 1978. Dr. McFeely noted that a
February 27, 2008 audiogram demonstrated slight progression of appellant’s hearing loss at the
high and middle frequencies, stating:
“I do believe to a high degree of medical probability that [appellant’s] hearing
loss is primarily noise induced. [Appellant] certainly did not have any other risk
factors prior to the audiogram in 1978 to explain his hearing loss. The
progression in hearing loss over the years may be attributed to advancing age.
There may be some question also as to whether chemotherapy given for multiple
myeloma may have contributed more recently. [Appellant] of course did not have
any of these risk factors prior to the 1978 audiogram. In summary, I do feel that
the intensity and duration of the noise exposure from the Navy employment
reported onboard submarines was sufficient to have caused the hearing loss
documented in 1978.”

2

Docket No. 06-464 (issued May 5, 2006).

3

The signature appears to be by a nurse, signing for a physician.

2

On May 7, 2008 Dr. McFeely discussed the audiogram and reviewed appellant’s work
history with the Navy, the employing establishment and his medical records. He advised that
appellant’s hearing loss from 1978 to 1992 was unchanged in the lower frequencies but from
1992 to 2004, a mild hearing loss was noted. Dr. McFeely advised that, since no audiograms
were available between 1992 and 2004, he was unable to provide a date when the change might
have occurred, stating that appellant noticed a problem with his hearing in 1996 or 1997 when he
asked people to repeat what they said. He stated:
“In my opinion, it would have been impossible for [appellant] to have known or
even suspected the cause of his reported condition in 1996. [He] had over 25
years of exposure to loud noises at work, and never noticed his condition until
1996 or 1997. [Appellant] was 54 years old at that time, and could not have
reasonably ruled out other possible causes for his condition without an ear
examination. He had no reason to suspect that his employment was the cause of
his condition.”
Dr. McFeely found “to a high degree of medical probability” that appellant’s hearing loss was
primarily noise induced and that it would have been impossible for appellant to have known the
cause of his hearing loss since no one provided him with a medical diagnosis at that time. In an
August 26, 2008 report, Dr. Keith C. Anderson, an osteopath Board-certified in physiatry,
utilized a January 13, 2004 audiogram and provided an impairment rating for appellant’s hearing
loss based on the fourth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.
Appellant submitted an affidavit dated September 18, 2008 in which he swore that when
completing the CA-2 claim form he entered “_/_/96” in error in Box 12, and that the correct date
should have been January 13, 2004, the date of an audiogram which was the first to show that he
had a ratable hearing loss under A.M.A., Guides. He was last exposed to excessive noise at work
on September 30, 1996 at the employing establishment. Appellant argued that the 2004
audiogram was the first obtained since 1992, and was characteristic of hearing loss due to longterm exposure to excessive noise. Thus, January 13, 2004 was the date he was first aware that
the cause of his hearing loss was noise exposure at work.
Appellant also contended that section 2.801.6(c) of employing establishment procedures
established that his hearing loss claim was timely, noting that employing establishment physical
examination reports on November 6, 1978 and August 3, 1995 revealed a high frequency hearing
loss. The employing establishment audiograms from 1978 to 1992 showed that his hearing
worsened at high frequencies. Therefore, the employing establishment had both constructive and
actual notice because its medical records disclosed an illness. Appellant noted that from 1968 to
1978 he was employed by the Navy where he had much more intense noise exposure than any
encountered at the employing establishment. While his hearing loss may have preexisted his
employment with the employing establishment, it knew his condition was caused by federal
employment with the Navy and the Office erred by not considering the totality of his federal
employment in his claim. Appellant also contended that the reports of Dr. McFeely established
causal relationship. He reiterated the first date he was reasonably aware of his employmentrelated hearing loss was January 23, 2004, when he had an audiogram that Dr. Anderson found

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ratable. While he made a mistake in Box 12 of the CA-2 claim form, he corrected it with his
affidavit.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.4 In cases of injury on or after
September 7, 1974, section 8122(a) of the Act provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) [T]he immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such [as] to put the immediate superior
reasonably on notice of an on-the-job injury or death; or
“(2) [W]ritten notice of injury or death as specified in section 8119 of this title
was given within 30 days.”5
Section 8119 of the Act provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.6 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.7
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability, and
the Board has held that the applicable statute of limitations commences to run although the
employee does not know the precise nature of the impairment.8 For actual knowledge of a
supervisor to be regarded as timely filing, an employee must show not only that the immediate
superior knew that he or she was injured, but also knew or reasonably should have known that it
was an on-the-job injury.9

4

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

5

5 U.S.C. § 8122(a).

6

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

5 U.S.C. § 8119(b); Delmont L. Thompson, 51 ECAB 155 (1999).

9

5 U.S.C. § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

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In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his federal employment, such awareness is competent to start the limitation period
even though the employee does not know the precise nature of the impairment or whether the
ultimate result of such affect would be temporary or permanent.10 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.11 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.12
In interpreting section 8122(a)(1) of the Act, the Office procedure manual states that, if
the employing establishment gives regular physical examinations which might have detected
signs of illness, such as hearing tests, it should be asked whether the results of such tests were
positive for illness and whether the employee was notified of the results.13
ANALYSIS
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act. Appellant contends that his September 18, 2008 affidavit corrected his
CA-2 claim form to establish that the date he first realized his hearing loss condition was
employment related was January 13, 2004, rather than in 1996, as noted on the claim form. The
Board, however, notes that in addition to stating that he was aware that his hearing loss was
employment related in 1996 on his 2004 claim, in a statement he provided with his claim, he
described his employment history including noise exposure, and stated that he first noticed a
hearing loss in the 1996 to 1997 time frame.
When an employee becomes aware or reasonably should have been aware that he has a
condition which has been adversely affected by factors of his employment, such awareness is
competent to start the running of the time limitations period even though he does not know the
precise nature of the impairment or whether the ultimate result of such adverse effect would be
temporary or permanent.14 The Board finds the claim form and statement provided by appellant
in 2004 more probative than the affidavit submitted in 2008 to establish when he was aware or
reasonably should have been aware of the possible relationship between his hearing loss and

10

Larry E. Young, supra note 6.

11

Id.

12

Debra Young Bruce, 52 ECAB 315 (2001).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
14

Richard Narvaez, 55 ECAB 661 (2004).

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factors of his federal employment. The Board previously addressed this argument in its May 5,
2006 decision.15
Nonetheless, if an employee continues to be exposed to injurious working conditions, the
time limitation begins to run on the date of the last exposure.16 The three-year statute of
limitations began to run in this case on September 30, 1996, the date appellant retired and would
have expired no later than September 30, 1999. Thus, appellant’s January 26, 2004 claim for
compensation is barred by this exception to the statute of limitations.17 Furthermore, as
discussed by the Board in its May 5, 2006 decision, the record does not support that appellant’s
“immediate superior had actual knowledge of the injury or death within 30 days.”18 While the
employing establishment noted that in November 1978, when appellant was first employed, his
audiogram was abnormal and that he had high frequency hearing loss, in August 1985 the
employing establishment also noted that appellant was exposed to loud noise with his previous
employer, the Department of the Navy, when he worked around diesel engines on submarines.
The hearing loss was also noted in August 1985. The Board has held that a program of annual
audiometric examinations conducted by an employing establishment may constructively
establish actual knowledge of a hearing loss such as to put the immediate supervisor on notice of
an on-the-job injury.19
Audiograms were performed by the employing establishment on November 6, 1978,
August 18, 1981, August 19, 1983, March 5, 1990, August 29, 1991 and July 29, 1992. These
were reviewed by an Office medical adviser but showed no evidence of a threshold shift such
that would put the employing establishment on notice that appellant had sustained a hearing loss
caused by this employment rather than his previous employment. Thus, this is not a case where
the employing establishment had constructive knowledge of an employment-related hearing
loss,20 and it is not enough that the employing establishment knew that appellant suffered from a
hearing loss at the time he began his employment in 1978; appellant also has to show that his
supervisors knew or reasonably should have known that this condition was caused by his
employment with the employing establishment.21 The Board further notes that Dr. McFeely
advised on February 27, 2008 that appellant’s hearing loss was caused by noise exposure during
his employment with the Navy prior to 1978, when be began to work for the employing
establishment.
The Board finds that there is no probative evidence to establish that appellant’s superior
had constructive knowledge sufficient to be reasonably put on notice that his hearing loss was
15

Supra note 1.

16

Larry E. Young, supra note 6.

17

Id.

18

5 U.S.C. § 8122(a)(1); see also Duet Brinson, supra note 9.

19

Roger D. Dicus, 56 ECAB

20

Compare James A. Sheppard, supra note 13.

21

See David R. Morey, 55 ECAB

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caused by work with the employing establishment within 30 days of September 30, 1996, the day
he retired. Accordingly, appellant’s claim is untimely.22
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 4, 2008 be affirmed.
Issued: September 17, 2009
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

22

See Richard Narvaez, supra note 14.

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

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

Docket No. 12-1475
Issued: January 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 28, 2012 appellant, through her attorney, filed a timely appeal from an
April 12, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she had an employment-related disability
or condition after May 9, 2010 due to her accepted conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a January 23, 2012 decision, the
Board found that OWCP met its burden of proof to terminate appellant’s monetary compensation
benefits effective May 9, 2010 based on the opinion of her attending physician, Dr. Dennis Ivill,
a Board-certified physiatrist. Although appellant continued to have some objective residuals of
her work-related conditions, he opined that she was able to work full duty based on his care of
her as well as his review of appellant’s physical activity, which included video surveillance. The
Board noted that there was no other medical opinion of record which opposed Dr. Ivill’s opinion
that she could perform full-duty work. The facts of the Board’s prior decision are incorporated
herein by reference.
In a February 24, 2012 letter, appellant, through counsel, requested reconsideration,
asserting that medical records and reports from Dr. William C. Murphy, an osteopath,
established that she had residuals of her work injury and could not return to her regular work.
She asserted that there was a conflict between the attending physicians and OWCP’s referral
physicians.
A December 9, 2011 letter was referenced, in which counsel requested
reconsideration of OWCP’s December 27, 2010 termination decision and that the appeal pending
before the Board be dismissed.3
The medical evidence submitted in support of the request for reconsideration consisted of
evidence previously of record and new diagnostic testing, which included a cervical magnetic
resonance imaging (MRI) scan dated January 12, 2010, foot and ankle x-rays dated June 2, 2010,
hospital records dated October 11, 2010 and electromyogram (EMG) studies dated July 25 and
August 29, 2011.
In a May 23, 2011 report, Dr. Murphy reported that appellant was seen for an initial
evaluation and had sustained injuries to her neck and low back as a result of a lifting incident at
work on July 29, 2000. He reviewed several medical records and stated that additional records
would be reviewed when available. Dr. Murphy noted that appellant wished to transfer her care
to him and had asked for another opinion regarding her condition. He set forth examination
findings and provided an impression of cervical and lumbar disc disease with multilevel
herniations and clinical evidence of cervical and lumbar radiculopathy. Dr. Murphy scheduled
appellant for a functional capacity examination (FCE) and indicated that she might benefit from
an updated MRI scan and electromyographic studies.
In June 27, 2011 report, Dr. Murphy noted appellant’s right elbow pain symptoms were
aggravated by lifting, pushing, pulling and carrying. He provided an impression of chronic
cervical and lumbar disc disease with myofascial pain and right lateral epicondylitis. On
August 29, 2011 Dr. Murphy noted that appellant’s complaints included neck and low back pain,
bilateral elbow and shoulder pain and that she had some relief with her last injection in the
2

Docket No. 11-1258 (issued January 23, 2012). On July 28, 2000 appellant, a mail carrier, was injured when a
large box fell on the middle of her back. OWCP accepted the claim for a cervical sprain, lumbosacral sprain and an
aggravation of lumbar degenerative disc disease. Appellant returned to full-time limited duty for short periods
before stopping work completely on March 13, 2001.
3

On April 27, 2011 appellant filed her prior appeal with the Board from the December 27, 2010 OWCP decision
affirming the termination of her monetary benefits. Counsel’s December 9, 2011 letter was addressed to OWCP.

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elbow. He indicated that the electrodiagnostic study performed that day indicated right L4
radiculopathy and chronic left L3-4 nerve root irritation with no evidence of peripheral
polyneuropathy, entrapment neuropathy, plexopathy or myopathy. In an October 31, 2011
report, Dr. Murphy reviewed the results of appellant’s October 14, 2011 FCE. He noted that she
reported significant pain issues throughout the test and was not able to fully participate.
Dr. Murphy stated that appellant had difficulty performing many of the activities which would be
required for the work force, including grasping, lifting, pushing, pulling and carrying. Based on
his experience of performing and interpreting FCEs and as a physical therapist and a review of
the raw data, he opined that she would have difficulty performing any gainful employment.
Dr. Murphy stated that appellant was disabled from all gainful employment and that the
disability was permanent.
By decision dated April 12, 2012, OWCP denied modification of its previous decision.
LEGAL PRECEDENT
By its January 23, 2012 decision, the Board found that OWCP met its burden of proof to
terminate appellant’s monetary compensation benefits effective May 9, 2010 on the grounds that
her attending physician, Dr. Ivill found that she was able to perform full-duty work. A decision
of the Board is final upon expiration of 30 days from the date of the decision.4
As OWCP met its burden of proof to terminate monetary compensation benefits effective
May 9, 2010, the burden shifted to appellant to establish that she had any continuing disability
causally related to her accepted employment injuries.5 To establish a causal relationship between
the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.6 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical evidence.7
Rationalized medical evidence is medical evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.8

4

20 C.F.R. § 501.6(d). There is no indication in the case record that appellant filed a petition for reconsideration
of the Board’s January 23, 2012 decision pursuant to 20 C.F.R. § 501.7. See W.M., Docket No. 11-1005 (issued
November 23, 2011).
5

See Joseph A. Brown, Jr., 55 ECAB 542 (2004). The accepted injuries in this case are a cervical sprain,
lumbosacral sprain and aggravation of lumbar degenerative disc disease stemming from a July 28, 2000 work injury.
6

Jennifer Atkerson, 55 ECAB 317 (2004).

7

Id.

8

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS
The Board finds that appellant submitted insufficient medical evidence with her
February 24, 2012 reconsideration request to establish that she continued to be disabled after
May 9, 2010 due to the July 28, 2000 work injury. The Board notes that she remains entitled to
medical benefits for her July 28, 2000 work injury.
With her reconsideration request, appellant submitted several diagnostic studies which
pertain to her accepted conditions with the exception of the June 2, 2010 foot and ankle x-rays.
The diagnostic studies are insufficient to meet her burden as they contain no opinion as to the
cause of the diagnosed conditions and medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.9
Dr. Murphy’s opinion is of diminished probative value as his reports do not contain
sound medical reasoning establishing that appellant was totally disabled after May 9, 2010 due to
the accepted conditions caused by the July 28, 2000 employment injury.10 Dr. Murphy first
examined her on May 23, 2011, almost 11 years after her work injury. He submitted a number
of reports dated May 23 to October 31, 2011. In his May 23, 2011 report, Dr. Murphy reported
that appellant sustained injuries to her neck and low back as a result of a lifting incident at work
and that he reviewed a number of her medical records. However, he fails to provide an accurate
history of injury or exhibit a complete and accurate factual and medical back ground of
appellant’s case. The record reflects that appellant was injured when a large box fell on the
middle of her back, not a lifting incident as reported by Dr. Murphy and there is no indication
what medical records he reviewed. While Dr. Murphy opined that appellant had several
conditions and that she was disabled from all gainful employment and that, such disability was
permanent, his opinion is conclusory as he does not offer an opinion providing medical rationale
as to how or why those disabling conditions are due to the July 28, 2000 work injury. He did not
explain the reasons why the 2000 work injury caused continuing disabling residuals, especially
considering that she had not worked for almost 10 years. As such, Dr. Murphy’s opinion is
entitled to little probative value and is insufficient to meet an employee’s burden of proof to
establish that appellant continues to have work-related disability due to the accepted
conditions.11
On appellant, appellant’s counsel asserts that she continued to be disabled due to the
employment injury. However, the reports submitted on reconsideration are entitled to little
probative value and, as appellant did not provide a rationalized medical opinion on causal
relationship, she did not meet her burden of proof to establish that she continues to have workrelated disability due to the accepted July 28, 2000 work injury. Appellant’s counsel further
argues the medical evidence from Dr. Murphy creates a conflict in medical opinion. However,
for the reasons noted above, Dr. Murphy’s reports are entitled to little probative value.
Furthermore, both Dr. Murphy, who supports causal relationship, and Dr. Ivill, whose opinion
9

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

10

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

11

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

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OWCP relied upon in terminating appellant’s monetary compensation benefits, are treating
physicians. For a medical conflict to arise under section 8123(a) of FECA, there must be a
disagreement between a government physician and a physician for the employee.12 As both of
these physicians were appellant’s physicians, there is no medical conflict under section 8123(a).
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 did not establish that she had any continuing employmentrelated disability after May 9, 2010 causally related to the July 28, 2000 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2012 decision of the Office of
Workers’ Compensation decision is affirmed.
Issued: January 29, 2013
Washington, DC

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

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

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

12

5 U.S.C. § 8123(a). See F.S., Docket No. 09-2337 (issued September 2, 2010) (as the disagreement arose
between two treating physicians and not between a treating physician and a physician for the government as
contemplated by 5 U.S.C. § 8123(a), the Board found that there was no conflict in medical opinion).

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