United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jensen Beach, FL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2055
Issued: May 5, 2011

Case Submitted on the Record

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

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from the June 25, 2010 merit decision
of the Office of Workers’ Compensation Programs denying appellant’s claim for periods of
disability. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
disability for intermittent periods between February 14 and June 1, 2009 due to his
September 27, 2008 work injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on September 27, 2008 appellant, then a 54-year-old rural
carrier associate, sustained a lumbar sprain due to attempting to open a door while pulling a cart
laden with mail tubs.2 He stopped work on September 29, 2008.
Appellant underwent a lumbar magnetic resonance imaging (MRI) scan test on
October 3, 2008 which showed mild degenerative changes and a small disc bulges at L5-S1 and
L4-L5 that mildly indented the anterior thecal sac, and borderline disc bulges at L1 through L4
without significant stenosis. On October 9, 2008 he came under the care of Dr. George Haas, a
Board-certified orthopedic surgeon, who gave a history of the September 27, 2008 injury and
noted that the MRI scan test showed multilevel disc degeneration. Dr. Haas diagnosed lumbar
disc disease, lumbar spine pain and acute mild hip arthritis and prescribed medications and
physical therapy.
Appellant returned to work with restrictions effective October 14, 2008. In an
October 23, 2008 progress report, Dr. Haas noted that appellant was more than 50 percent better
and diagnosed lumbosacral strain.
He released appellant to unrestricted duty as of
November 6, 2008.
In a February 24, 2009 statement, the employing establishment advised that appellant had
been placed back on sedentary duties and challenged whether the need for such restricted work
was due to the injury-related condition noting that he had been working full duties for over three
months. In a February 12, 2009 form report, Dr. Haas indicated that appellant was returning for
another episode of back pain which began three days prior and provided the notation, “sedentary
work.”3 In a February 19, 2009 progress report, he advised that appellant was 75 percent better
and could return to full duties in one week.
The employing establishment confirmed that appellant had returned to full duty as of
February 29, 2009, but on October 23, 2009 had brought in paperwork stating that he needed
limitations again as well as a surgical consultation. In a March 23, 2009 letter, Dr. Haas advised
that appellant had lumbar disc degeneration and was being referred to Dr. Daniel Husted, a
Board-certified orthopedic surgeon, who noted that appellant had a 10-pound lifting limitation.
In a June 17, 2009 initial consultation report, Dr. Husted noted that trauma occurred at
work on September 27, 2008 and stated that the context of the injury was a twisting movement.
He diagnosed, “lumbar disc displacement, [herniated nucleus pulposus] L4-5, L5-S1 with low
back pain with activity after work injury 2008.”
On July 2, 2009 the Office received a Form CA-7 (claim for compensation) claiming
wage loss for intermittent periods from February 9 to June 1, 2009. Appellant was off work
from February 14 to 25, March 30 to April 10, April 13, April 19 to 23 and May 9 to 21, 2009.

2

Appellant twisted his torso and felt a burning sensation in his lower back.

3

Dr. Haas indicated that appellant described the pain as severe and sharp with no radiation.

2

In an October 30, 2009 letter, the Office requested that appellant submit medical
evidence establishing disability for work for the periods claimed. Appellant submitted reports,
including those of Dr. Haas and Dr. Husted, which listed work restrictions and described the
medical treatment he received.
In a December 28, 2009 decision, the Office denied appellant’s claim on the grounds that
he did not submit sufficient medical evidence to establish that he sustained disability for
intermittent periods between February 14 and June 1, 2009 due to his September 27, 2008 work
injury.
Appellant requested a telephone hearing before an Office hearing representative. At the
April 14, 2010 hearing, counsel asserted that appellant was in excellent health prior to
September 27, 2008, but that after the injury his physicians diagnosed lumbar disc displacement,
a more serious condition than the accepted lumbar sprain. He claimed that appellant had very
significant work restrictions which were consistent with his inability to work. Appellant
described his back condition and also asserted that he sustained a degenerative back condition on
September 27, 2008.
Following the hearing, appellant submitted an April 14, 2010 report in which Dr. Haas
indicated that he treated appellant following the September 27, 2008 work injury until Dr. Haas
referred appellant to Dr. Husted in late March 2009. Dr. Haas asserted that appellant had a
significant injury at work and the objective evidence showed more than a mere back strain. He
stated that, based on Dr. Husted’s records, appellant sustained a lumbar disc displacement which
involved herniated or bulging discs at two levels. Dr. Haas stated that this type of condition
would cause appellant to experience intermittent bouts of pain which would keep him from
performing even light duty.
In an April 14, 2010 report, Dr. Husted confirmed that he had been treating appellant
since June 2009. He gave a history of the September 27, 2008 work injury and diagnosed
lumbar disc displacement based upon the history, objective testing and examination results.
Dr. Husted related appellant’s condition to his employment. He explained that this type of injury
would involve a great deal of pain from time to time and would be consistent with appellant’s
claimed inability to work. Appellant had asserted that he was unable to perform his work duties
for several months before the first consult in June 2009. Dr. Husted noted that appellant missed
time between February and late May 2009, which was consistent with the type of injury he
related to the work event on September 27, 2008.
In a June 25, 2010 decision, the Office hearing representative affirmed the Office’s
December 28, 2009 decision. She found that there was no rationalized medical evidence
showing that appellant sustained a more serious injury on September 27, 2008 than the accepted
lumbar sprain.

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LEGAL PRECEDENT
An employee seeking benefits under the Act4 has the burden of establishing the essential
elements of his claim including the fact that the individual is an “employee of the United States”
within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.5 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between appellant’s diagnosed condition and the compensable employment factors. The opinion
of the physician must be based on a complete factual and medical background of appellant, 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 appellant.6 The Board has held that a diagnosis of “pain,” without more in
the way of medical rationale, does not constitute the basis for the payment of compensation.7
ANALYSIS
The Office accepted, on September 27, 2008, a lumbar sprain due to attempting to open a
door while pulling a cart laden with mail tubs. Appellant claimed that he sustained disability for
intermittent periods between February 14 and June 1, 2009 due to his September 27, 2008 work
injury.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he sustained disability for intermittent periods between February 14 and June 1, 2009 due to his
September 27, 2008 work injury.
After his September 27, 2008 work injury, appellant was released to regular duty on
November 6, 2008 by Dr. Haas, an attending Board-certified orthopedic surgeon. He continued
to perform his regular work until February 9, 2009. Dr. Haas was the only physician who treated
appellant during the period of claimed intermittent disability (February 14 to June 1, 2009). In a
February 12, 2009 report, he indicated that appellant was returning for another episode of back
pain which began three days prior and he placed him back on sedentary work. In a February 19,
2009 report, Dr. Haas reported that the pain was improving and he released appellant back to full
duty one week later. However, apart from identifying the presence of pain, he failed to provide
objective findings showing that appellant’s condition worsened on or about February 9, 2009
such that he sustained an increase in disability. Dr. Haas again placed appellant on restrictions as
of March 23, 2009, and noted decreased range of motion with spasm. He diagnosed lumbar disc
4

5 U.S.C. §§ 8101-8193.

5

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

6

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

7

Robert Broome, 55 ECAB 339 (2004).

4

degeneration, but this condition has not been accepted as related to the September 27, 2008 work
event. On appeal counsel argued that the reports of Dr. Haas show that appellant actually
sustained a more serious condition on September 27, 2008 than was accepted by the Office.
However, he did not provide a rationalized opinion that appellant sustained a more serious
condition on September 27, 2008, such as a degenerative lumbar condition or herniated lumbar
disc.
The Board notes that appellant did not visit Dr. Husted, a Board-certified orthopedic
surgeon, until June 17, 2009. This is after the period of disability claimed by appellant in the
present case. Although Dr. Haas produced an April 14, 2010 report stating that Dr. Husted’s
diagnosis of lumbar disc displacement would have caused intermittent bouts of pain which
would have kept appellant from performing even light duty, he failed to provide any objective
findings to show that appellant sustained a material worsening and did not address each
intermittent period of disability claimed. In addition, Dr. Haas did not establish that appellant
was totally disabled from all work when he examined appellant in February and March 2009 as
he only provided a number of work restrictions. Because he apparently did not examine
appellant after March 23, 2009, his opinion on appellant’s work capacity after that date would be
considered speculative. Dr. Husted’s opinion that appellant had been disabled for several
months prior to his first evaluation is of little probative value as it was based solely on
appellant’s reports of his own inability to work. He did not examine appellant until four months
after the first claimed date of disability and he also based his opinion concerning work capacity
on appellant’s subjective reports of pain. Although appellant has claimed that he suffered a more
serious injury on September 27, 2008 than a sprain, the medical evidence does not objectively
establish that he had increased disability or was unable to work for intermittent periods from
February 14 to June 1, 2009 as alleged.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained disability for intermittent periods between February 14 and June 1, 2009 due to his
September 27, 2008 work injury.

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ORDER
IT IS HEREBY ORDERED THAT the June 25, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, SACRAMENTO
PERFORMANCE CLUSTER,
West Sacramento, CA, Employer
__________________________________________

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

Docket No. 21-1259
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On August 16, 2021 appellant filed a timely appeal from April 9 and July 21, 2021 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 4, 2021 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she began experiencing occasional burning and pain on
1

5 U.S.C. § 8101 et seq.

the side and bottom of her right heel due to factors of her federal employment, including excessive
walking. She explained that approximately two months prior to filing her claim she began
experiencing burning pain in her heel at the end of her workday, which worsened with increased
walking pace. Appellant alleged that she first became aware of her claimed condition and realized
its relation to her federal employment on January 18, 2021. She stopped work on
February 1, 2021.
In a statement dated January 27, 2021, appellant reiterated the details of the pain symptoms
she experienced due to her employment activities, which culminated in November 2020. She
related that, thereafter, she experienced worsened pain in the last two weeks. Appellant asserted
that she did not injure her foot and that the ongoing pain caused her to seek medical treatment.
On January 29, 2021 Dr. Wanda Blaylark, a Board-certified occupational medicine
specialist, diagnosed right plantar fasciitis and indicated that appellant should only perform
stationary work duties through February 5, 2021.
In a February 4, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. OWCP also requested a narrative medical
report from appellant’s treating physician containing a detailed description of findings and a
diagnosis, explaining how her work activities caused, contributed to, or aggravated her medical
condition. In a separate development letter of even date, it requested that the employing
establishment provide comments from a knowledgeable supervisor regarding the accuracy of her
allegations. OWCP afforded both parties 30 days to respond.
A January 29, 2021 note from Dr. Blaylark recounted appellant’s complaints of pain that
she alleged began two months prior and had worsened in the last two weeks. Dr. Blaylark noted
that appellant’s official work duties required her to constantly walk during her delivery route and
that she indicated brisk walking worsened the pain. She also related that appellant denied any
previous right foot condition and that her condition was a work-related injury. In a medical report
of even date, Dr. Blaylark noted appellant’s diagnosed condition and modified work schedule.
On February 5, 2021 appellant followed up with Dr. Blaylark and advised that she had not
experienced improvement in her symptoms following her medical treatment, but that she can
return to work with modified duties. In a work duty status report of even date, Dr. Blaylark
indicated that appellant was in a temporary alternate work status from February 5 to 22, 2021 and
provided modified duties requiring no more than 20 minutes per hour of standing or walking during
that period.
On February 18, 2021 appellant responded to OWCP’s development questionnaire
explaining that her official duties require her to continuously walk an average of five to six hours
while carrying up to 30 pounds of mail on her delivery route. She further asserted that she did not
experience any foot pain previously and that she began experiencing increased pain by the end of
her delivery route. Appellant also indicated that she did not engage in any sports or physical
activities outside of her federal employment.

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In a February 22, 2021 note, Dr. Blaylark reported that appellant’s condition had slightly
improved with the prescribed medical treatment; however, she continued to experience significant
discomfort when she walked. In a work duty status report of even date, she indicated that appellant
should continue her current work restrictions until March 15, 2021.
A March 15, 2021 note from Dr. Blaylark noted that appellant had seen improvement from
her medical treatment; however, she indicated that appellant was unable to perform the duties of
her date-of-injury position. In a work duty status report of even date, Dr. Blaylark modified her
work restrictions to a maximum of 30 minutes of prolonged standing or walking until
April 26, 2021.
By decision dated April 9, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a right heel condition
causally related to the accepted factors of her federal employment. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
OWCP received a March 25, 2021 note from Dr. Timothy Bernard, a podiatrist, who
opined that appellant’s right plantar fasciitis was aggravated by her prolonged walking and
standing. Dr. Bernard further noted that she did not experience any prior injury or condition of
her right foot before the onset of her current pain.
On April 24, 2021 appellant requested reconsideration of OWCP’s April 9, 2021 decision
and attached additional medical evidence. In a letter of even date, Dr. Blaylark reiterated that her
official duties require her to walk up to 30,000 steps per day on her route and that she did not
experience any prior injuries with her right foot. She opined that appellant’s right heel condition
was causally related to her work activities of prolonged walking and standing.
By decision dated July 21, 2021, OWCP denied modification of its April 9, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

2

Supra note 1.

3

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

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employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence 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
casually related to the identified employment factors by the claimant.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a letter from Dr. Blaylark dated April 24, 2021
wherein she opined that prolonged standing and walking of up to 30,000 steps a day as part of
appellant’s official duties as a mail carrier aggravated her right plantar fasciitis. The Board finds
that, while she provides an opinion on causal relationship, her reports are insufficient to meet
appellant’s burden of proof, as she did not provide adequate medical reasoning to explain how
prolonged standing and walking caused or contributed to appellant’s diagnosed medical condition.
The Board has held that medical evidence that does not offer a rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.9 Thus, Dr. Blaylark’s April 24, 2021 report is insufficient to meet appellant’s burden
of proof.

4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

M.E., Docket No. 18-0940 (issued June 11, 2019).

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Likewise, in a March 25, 2021 medical report from Dr. Bernard, he opined that appellant’s
right plantar fasciitis was aggravated by prolonged walking and standing at work. He noted that,
prior to November 2020, she had no pain or symptoms in her right foot. As noted above, the Board
has held that a medical opinion without adequate rationale is insufficient to establish appellant’s
burden of proof. Moreover, an opinion that a condition is causally related to an employment
incident because the employee was asymptomatic before the injury is insufficient, without
adequate rationale, to establish causal relationship. 10 Therefore, Dr. Bernard’s report is
insufficient to establish appellant’s burden of proof.
The remaining evidence of record includes notes dated January 29 to March 15, 2021 from
Dr. Blaylark where she recounted appellant’s history of injury and medical treatment. Dr. Blaklark
diagnosed right plantar fasciitis and provided work restriction. However, she did not offer an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 11 As such, Dr. Blaylark’s remaining reports are of no probative value and are
insufficient to establish appellant’s claim.
As there is no rationalized medical evidence explaining how appellant’s employment duties
caused or aggravated her diagnosed condition, the Board finds that she has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the factors of her federal employment.

10

See S.D., Docket No. 20-1255 (issued February 3, 2021); F.H., Docket No. 18-1238 (issued January 18, 2019);
J.R., Docket No. 18-0206 (issued October 15, 2018).
11

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

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ORDER
IT IS HEREBY ORDERED THAT the April 9 and July 21, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Conyers, GA, Employer
__________________________________________

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

Docket No. 18-1651
Issued: March 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 29, 2018 appellant filed a timely appeal from a March 19, 2018 merit decision
and a June 28, 2018 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 over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an injury
while in the performance of duty on January 31, 2018, as alleged; and (2) whether OWCP abused

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 19, 2018 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

its discretion by denying appellant’s request for an oral hearing as untimely filed pursuant to
5 U.S.C. § 8124(b).
FACTUAL HISTORY
On February 8, 2018 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 31, 2018 he stepped down onto a floor board, reached
across the seat to retrieve a parcel, and heard a pop in his right leg. He listed the nature of his
injury as a sprain of his right lower leg. On the reverse side of the claim form, the employing
establishment noted that appellant stopped work that day and returned to work on
February 2, 2018. The employing establishment challenged the claim.
In a report dated February 1, 2018, Dr. Andrea E. Andrews, Board-certified in family
medicine, related appellant’s history of standing on a vehicle platform and reaching for a package
when he heard a pop in his calf. She diagnosed right leg muscle strain and indicated that appellant
could return to work on February 1, 2018 with restrictions.
By development letter dated February 12, 2018, OWCP requested that he submit additional
factual and medical evidence in support of his traumatic injury claim. It noted that the evidence
provided was insufficient to establish that appellant actually experienced the incident alleged to
have caused injury, and that no diagnosis of a condition had been provided. OWCP indicated the
type of factual and medical evidence needed to support his claim. It requested that appellant
complete a questionnaire to establish the factual component of his claim. OWCP afforded
appellant 30 days to submit the requested evidence.
Appellant submitted medical reports dated February 1, 5, 12, and 21, 2018 from
Dr. Andrews. In each report, Dr. Andrews diagnosed a strain of the right gastrocnemius muscle
and indicated that appellant was able to return to work in a modified-duty capacity on
February 1, 2018.
By decision dated March 19, 2018, OWCP denied appellant’s claim finding the evidence
submitted was insufficient to establish that the employment incident occurred as alleged. It noted
that appellant had not responded to the February 12, 2018 questionnaire and therefore had not
substantiated the factual element of his claim. OWCP concluded, therefore, that appellant had not
met the requirements to establish that he sustained an injury as defined by FECA.
On June 13, 2018 OWCP received appellant’s request for an oral hearing before an OWCP
hearing representative. The postmark indicated that it was mailed June 6, 2018.
On June 19, 2018 OWCP received a witness statement dated May 23, 2018, and a
supplemental statement from appellant dated May 24, 2018.
By decision dated June 28, 2018, OWCP denied appellant’s request for an oral hearing
before an OWCP hearing representative. It found that he was not entitled to a hearing as a matter
of right because his request was not made within 30 days of the issuance of its March 19, 2018
decision. OWCP exercised its discretion and determined that the issue in the case could equally
well be addressed by requesting reconsideration and submitting new evidence.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged.6 Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.7 Causal relationship is a medical issue and the medical evidence generally
required to establish causal relationship is rationalized medical opinion evidence.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish an injury while
in the performance of duty on January 31, 2018, as alleged.
On his claim form, appellant alleged that he sustained a sprain to his right leg when he
stepped down onto a floor board and reached across the seat to retrieve a parcel.
Appellant’s description of the traumatic incident is vague and fails to provide specific detail
to determine the manner in which he sustained his alleged injury.9 He did not describe the
mechanism of injury.10 Appellant was provided an opportunity by OWCP to establish how his
alleged injury occurred. By development letter dated February 12, 2018, OWCP requested that he
describe the factual circumstances of his injury and provided him with a factual development
questionnaire for completion. Appellant did not respond to the questionnaire and he failed to
3

Supra note 1.

4

E.A., Docket No. 17-0330 (issued December 12, 2018); see T.H., 59 ECAB 388 (2008).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989).

6

M.M., Docket No. 18-0769 (issued September 10, 2018); see Julie B. Hawkins, 38 ECAB 393 (1987).

7

M.M., id.; John J. Carlone, 41 ECAB 354 (1989).

8

M.M., supra note 6; see I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

9

See A.E., Docket No. 17-0522 (issued April 13, 2018).

10

See M.L., Docket No. 16-1723 (issued March 1, 2017).

3

provide a narrative statement detailing the traumatic incident prior to the issuance of OWCP’s
denial of his claim on March 19, 2018. By failing to describe the employment incident and
circumstances surrounding his alleged injury, he has not established that the traumatic injury
occurred, as alleged.11 Thus, the Board finds that he has not met his burden of proof. Inasmuch
as appellant has failed to establish the first component of his claim, that the incident occurred at
the time, place, and in the manner alleged, the Board need not review the medical evidence.12
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
Section 8124 of FECA13 provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made within 30 days after issuance of an OWCP final decision.14
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “[a] hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: [a]n oral hearing or a review of the written record.”15
Under section 10.616(a), “[a] claimant injured on or after July 4, 1966, who had received
a final adverse decision by the district OWCP may obtain a hearing by writing to the address
specified in the decision. The hearing request must be sent within 30 days (as determined by
postmark or other carrier’s date marking) of the date of the decision for which a hearing is
sought.”16
OWCP’s regulations further provide that a request received more than 30 days after
OWCP’s decision is subject to OWCP’s discretion17 and the Board has held that OWCP must
exercise this discretion when a hearing request is untimely.18

11

Supra note 9.

12

R.F., Docket No. 18-1218 (issued February 7, 2019); Ted A. Off, Docket No. 96-0536 (issued February 5, 1998).

13

Supra note 1.

14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

Id. at § 10.616(a).

17

Id. at § 10.616(b).

18

D.W., Docket No. 17-1413 (issued December 18, 2018); Samuel R. Johnson, 51 ECAB 612, 613-14 (2000).

4

ANALYSIS -- ISSUE 2
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for an oral hearing as untimely filed under 5 U.S.C. § 8124(b).
A request for a hearing must be made within 30 days after the date of the issuance of an
OWCP final decision. OWCP noted that appellant’s request for hearing was postmarked
June 6, 2018. As the request was submitted more than 30 days following issuance of the March 19,
2018 decision, the Board finds that it was untimely filed and appellant was not entitled to an oral
hearing as a matter of right.
OWCP has the discretionary power to grant an oral hearing even if the claimant is not
entitled to a review as a matter of right. The Board finds that OWCP, in its June 28, 2018 decision,
properly exercised its discretion by indicating that it had considered the matter and had denied
appellant’s request for oral hearing as his claim could be equally well addressed through a
reconsideration application. Because reconsideration exists as an alternative appeal right to
address the issue raised by OWCP’s March 19, 2018 decision, the Board finds that OWCP has not
abused its discretion in denying appellant’s untimely hearing request.19
Accordingly, the Board finds that OWCP properly denied appellant’s June 6, 2018 request
for an oral hearing as untimely filed pursuant to 5 U.S.C. § 8124.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury while
in the performance of duty on January 31, 2018, as alleged. The Board also finds that OWCP has
not abused its discretion by denying appellant’s request for an oral hearing as untimely filed
pursuant to 5 U.S.C. § 8124(b).

19

See J.N., Docket No. 18-0646 (issued January 28, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the June 28 and March 19, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

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

Docket No. 18-0878
Issued: October 12, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 19, 2018 appellant filed a timely appeal from an October 20, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated August 31, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP has abused its discretion when it denied appellant’s October 5,
2017 request for review of the written record as untimely filed under 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 4, 2017 appellant, then a 52-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a left shoulder contusion earlier that morning when he was
thrown from a riding pallet jack. He allegedly fell from the pallet jack to the floor, striking his left
shoulder and left knee. Appellant was seen at a hospital emergency department on the date of
injury.2 A left shoulder x-ray was normal and Dr. Kevin Washington, an emergency medicine
specialist, discharged appellant later that same day with a diagnosis of left shoulder and left knee
contusions.
In a July 19, 2017 development letter, OWCP requested that appellant submit additional
medical evidence in support of his claim. It afforded him 30 days to submit the requested medical
evidence.
OWCP subsequently received a July 13, 2017 report from Dr. Sohaib A. Khalid, a Boardcertified family practitioner, who diagnosed left shoulder joint pain, left knee joint pain, and knee
ligament sprain. Dr. Khalid referred appellant for physical therapy.
By decision dated August 31, 2017, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the July 4, 2017 employment incident.
By appeal request form dated October 3, 2017, and postmarked October 5, 2017, appellant
requested a review of the written record by a representative of OWCP’s Branch of Hearings and
Review. He also submitted medical evidence dated July 4 and 13, 2017, and physical therapy
treatment records dated August 4 through October 4, 2017.
By decision dated October 20, 2017, OWCP denied appellant’s request for a review of the
written record, finding that his request was untimely because it was not made within 30 days of its
August 31, 2017 decision. It further indicated that it had exercised its discretion and denied the
request for the reason that the relevant issue of the case could be addressed by requesting
reconsideration and submitting evidence not previously considered by OWCP.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [his or her] claim before a representative of
the Secretary.”3

2

On July 17, 2017 OWCP received a completed authorization for examination and/or treatment (Form CA-16)
dated July 4, 2017.
3

5 U.S.C. § 8124(b)(1).

2

Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”4 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.5 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.6 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.7
ANALYSIS
Appellant had 30 days from OWCP’s August 31, 2017 merit decision to request a hearing
before the Branch of Hearings and Review. Appellant submitted a request for a review of the
written record by appeal request form dated October 3, 2017, and postmarked October 5, 2017.
As the postmark date was more than 30 days after the August 31, 2017 decision, appellant was not
entitled to a review of the written record as a matter of right.8 Section 8124(b)(1) is unequivocal
on the time limitation for requesting a hearing.9
Although appellant was not entitled to a review of the written record as a matter of right,
OWCP’s Branch of Hearings and Review exercised its discretion in determining whether to grant
appellant’s request despite its untimely nature. In denying a discretionary hearing, the hearing
representative found that the issue in the case could be equally well addressed by requesting
reconsideration before OWCP and submitting new evidence establishing that appellant sustained
an injury as defined under FECA. Because reconsideration exists as an alternative appeal right to
address the issues raised by OWCP’s August 31, 2017 decision, the Board finds that OWCP did
not abuse its discretion in denying appellant’s untimely request for review of the written record.10
CONCLUSION
The Board finds that OWCP has not abused its discretion when it denied appellant’s
October 5, 2017 request for review of the written record as untimely filed under 5 U.S.C.
§ 8124(b).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616.

6

See G.W., Docket No. 10-782 (issued April 23, 2010); see also Herbert C. Holley, 33 ECAB 140 (1981).

7

Id.; see also Rudolph Bermann, 26 ECAB 354 (1975).

8

Under OWCP regulations and procedures, the timeliness of a request for a hearing is determined on the basis of
the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011). If the postmark is not legible, the request will
be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
9

See William F. Osborne, 46 ECAB 198 (1994).

10

See Gerard F. Workinger, 56 ECAB 259 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the October 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.11
Issued: October 12, 2018
Washington, DC

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

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

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

11

The record contains a Form CA-16 dated July 4, 2017 and signed by the employing establishment. A properly
executed CA-16 form can be the basis of a contractual agreement for payment of medical expense, even if the claim
is not accepted. Upon return of the case record, OWCP should address this issue. See 20 C.F.R. § 10.300; Val D.
Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination
and Treatment, Chapter 3.300.3(a)(3) (February 2012).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Burlington, MA, Employer
__________________________________________

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

Docket No. 16-0303
Issued: March 24, 2016

Case Submitted on the Record

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

JURISDICTION
On December 8, 2015 appellant filed a timely appeal from a November 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than six percent
permanent impairment of his right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On March 12, 2013 appellant, then a 54-year-old immigration enforcement agent, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a right shoulder injury during a
1

5 U.S.C. § 8101 et seq.

workout session at work on that date. He indicated that he felt a tear and pop in his right
shoulder during a set of shoulder presses. The findings of an April 5, 2013 magnetic resonance
imaging (MRI) scan of appellant’s right shoulder demonstrated a full-thickness tear of his right
supraspinatus muscle and OWCP accepted his claim for a tear of the rotator cuff of his right
shoulder.2
On July 29, 2013 Dr. Richard Wilk, an attending Board-certified orthopedic surgeon,
performed an arthroscopic repair of the rotator cuff of appellant’s right shoulder. The procedure
was authorized by OWCP. Appellant stopped work on July 29, 2013 and began receiving
disability compensation on the daily rolls beginning July 29, 2013, and on the periodic rolls
beginning October 20, 2013.
On September 19, 2013 OWCP received appellant’s claim (Form CA-7) for a schedule
award due to his accepted employment injury. Appellant returned to regular duty on a full-time
basis on January 2, 2014 and retired from the employing establishment effective July 31, 2014.
In an October 29, 2013 report, Dr. Wilk reported that physical examination of appellant
on that date revealed good motion of his shoulders, elbows, wrists, and hands and reasonable
strength in his upper extremities. He indicated that appellant was making progress after his
surgery.
Due to a lack of reports in the case record from attending physicians, OWCP referred
appellant in November 2014 to Dr. Christopher B. Geary, a Board-certified orthopedic surgeon,
for a second opinion examination and impairment rating of his right upper extremity under the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
In a December 24, 2014 report, Dr. Geary detailed appellant’s factual and medical history
and reported the findings of the physical examination he performed on December 10, 2014. He
indicated that examination of appellant’s neck was benign with negative Spurling testing.
Examination of his left shoulder showed full range of motion with no weakness or impingement,
and examination of his right shoulder showed well-healed surgical incisions from his previous
repair. Dr. Geary reported that appellant had mild tenderness to palpation over his right biceps
groove, but not over his right acromioclavicular joint or greater tuberosity. He lacked 20 degrees
of forward flexion of his right shoulder, 10 degrees of external rotation, and 10 degrees of
internal rotation. Appellant exhibited 5/5 strength in his supraspinatus and infraspinatus muscles
and he was neurovascularly intact distally. Dr. Geary indicated that, using Table 15-5 on page
403 of the sixth edition of the A.M.A., Guides, appellant’s diagnosis of full-thickness rotator cuff
tear fell under class 1 with a default value of five percent impairment. Appellant had a grade
modifier for Functional History (GMFH) of 2 given his pain with normal activities and a grade
modifier for Physical Examination (GMPE) of 1 due to his slight loss of range of motion.
Application of the net adjustment formula required moving one space to the right of the default

2

OWCP previously accepted that appellant sustained other work-related traumatic injuries, including a right knee
sprain on February 2, 2001, a left ankle sprain on July 8, 2011, and a partial-thickness tear of his left rotator cuff on
February 23, 2012. These injuries are not the subject of the present appeal.

2

value on Table 15-5. Dr. Geary concluded that appellant had six percent permanent impairment
of his right upper extremity.3
On January 12, 2015 Dr. Morley Slutsky, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, indicated that he had reviewed the case record,
including the December 24, 2014 report of Dr. Geary. He noted that a diagnosis-based
impairment method was the preferred rating method to assess appellant’s right upper extremity
impairment.4 Using Table 15-5 of the sixth edition of the A.M.A., Guides, appellant fell under
class 1 for the most impairing diagnosis in the shoulder region of full-thickness rotator cuff tear
with residual dysfunction. Dr. Slutsky indicated that appellant’s right shoulder still was
symptomatic, but that the rating report did not document him having to perform functional
modifications in order to achieve self-care activities (as discussed in Table 15-7). Therefore,
appellant had a grade modifier functional history of 1. Dr. Slutsky reported that appellant had
mild tenderness to palpation which was equal to a grade modifier physical examination of 1. He
indicated that no other objective deficits were documented. An April 8, 2013 MRI scan of
appellant’s right shoulder demonstrated a full-thickness tear of his right supraspinatus muscle,
possible labral tear, and minor degenerative changes in the acromioclavicular joint and,
therefore, appellant had a grade modifier for Clinical Studies (GMCS) of 2. Dr. Slutsky applied
the net adjustment formula and concluded that appellant had six percent permanent impairment
of his right upper extremity. He indicated that appellant reached maximum medical
improvement on December 10, 2014, the date of Dr. Geary’s examination.
By decision dated November 10, 2015, OWCP granted appellant a schedule award for six
percent permanent impairment of his right upper extremity. The award ran for 18.72 weeks from
December 10, 2014 to April 20, 2015 and was based on the impairment rating of Dr. Slutsky as
applied to the findings of Dr. Geary.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulation6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

3

See infra note 9. Dr. Geary indicated that maximum medical improvement was achieved on May 29, 2014.

4

Dr. Slutsky indicated that Dr. Geary provided range of motion findings for only three of the six motions
described in section 15.7 on page 464 for measuring range of motion. He posited that, therefore, the range of
motion rating method was not valid for measuring appellant’s right upper extremity impairment.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

3

appropriate standard for evaluating schedule losses.7 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.8
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.
After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for functional history, grade modifier for physical examination and grade modifier for
clinical studies. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).9
ANALYSIS
OWCP accepted that appellant sustained a tear of the rotator cuff of his right shoulder.
He filed a claim for a schedule award due to his accepted employment injury. By decision dated
November 10, 2015, OWCP granted appellant a schedule award for six percent permanent
impairment of his right upper extremity. The award based on the impairment rating of
Dr. Slutsky, a Board-certified occupational medicine physician serving as an OWCP medical
adviser, as applied to the findings of Dr. Geary, an attending Board-certified orthopedic surgeon
and second opinion physician.
The Board finds that appellant has not submitted evidence establishing that he has more
than a six percent permanent impairment of his right arm, for which he received a schedule
award. In a January 12, 2015 report, Dr. Slutsky explained that appellant has six percent
permanent impairment of his right upper extremity under the standards of the sixth edition of the
A.M.A., Guides. He noted that he had reviewed the case record, including the December 10,
2014 examination findings of Dr. Geary. Using Table 15-5 on page 403 of the sixth edition of
the A.M.A., Guides, Dr. Slutsky indicated that appellant fell under class 1 for the most impairing
diagnosis in the shoulder region of full-thickness rotator cuff tear with residual loss/dysfunction.
This condition fell under the default value of five percent on Table 15-5. Dr. Slutsky calculated
a grade modifier for functional history of 1, grade modifier for physical examination of 1, and
grade modifier for clinical studies of 2. Dr. Slutsky applied the net adjustment formula, which
required moving one space to the right of the default value on Table 15-5. He concluded that
7

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010); see also, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
(January 2010).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
9

See A.M.A., Guides 401-11 (6th ed. 2009). Table 15-5 also provides that, if motion loss is present for a claimant
who has a rotator cuff injury (full-thickness tear), impairment may alternatively be assessed using Section 15.7
(range of motion impairment). Such a range of motion impairment stands alone and is not combined with a
diagnosis-based impairment. Id. at 403, 475-78.

4

appellant has six percent permanent impairment of his right upper extremity.10 The Board notes
that Dr. Geary also determined, in his December 24, 2014 report, that appellant has six percent
permanent impairment of his right arm.11
On appeal, appellant argues that his schedule award compensation should be greater
because he has limited use of his right shoulder and upper arm. However, the Board has
explained that the amount of schedule award compensation he received is appropriate. Appellant
did not submit any medical evidence showing that he has more than six percent permanent
impairment of his right upper extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish more than six
percent permanent impairment of his right upper extremity, for which he received a schedule
award.

10

Dr. Slutsky indicated that appellant reached maximum medical improvement on December 10, 2014, the date
of Dr. Geary’s examination.
11

Dr. Geary provided a different figure for grade modifier for functional history but calculated the same
impairment percentage for appellant’s right upper extremity as Dr. Slutsky, i.e., six percent.

5

ORDER
IT IS HEREBY ORDERED THAT the November 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2016
Washington, DC

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

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

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

6


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

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Appearances:
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0205
Issued: October 11, 2016

Case Submitted on the Record

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

JURISDICTION
On November 13, 2015 appellant, through counsel, filed a timely appeal from a June 25,
2015 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish right knee or back
conditions causally related to factors of his federal employment.
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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference.
On July 19, 2012 appellant, then a 46-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained an aggravation of chronic right knee strain, chronic
left ankle strain with a permanent aggravation of arthritis, lumbar degenerative joint disease,
sacroiliac joint dysfunction, myofascial pain syndrome, and thoracic myofascial syndrome due to
factors of his federal employment. He stopped work on March 1, 2010.4
In a report dated April 12, 2012, Dr. Jack L. Rook, a Board-certified physiatrist,
evaluated appellant for complaints of low back, right knee, and left ankle pain. He noted that
appellant had a history of work injuries, including an accepted claim, assigned file number
xxxxxx055, for a right knee contusion and lumbosacral strain sustained on December 18, 1995
after he fell on stairs. Dr. Rook further noted that on August 1, 1997 appellant fell off a porch
injuring his back. Appellant filed a recurrence of disability under file number xxxxxx055 for the
August 1, 1997 fall, but it was denied. OWCP also accepted in file number xxxxxx213 that on
July 19, 2005 he sprained his left ankle.
On examination Dr. Rook found full strength of the lower extremities with no atrophy,
tenderness of the left sacroiliac joint, left paralumbar muscle spasm, and tenderness of the
posterior right knee capsule. He diagnosed chronic right knee strain, chronic left ankle strain, a
permanent aggravation of underlying ankle joint arthritis with osteochondritis dessicans on
magnetic resonance imaging (MRI) scan study, chronic low back pain, a history of L4-5
degenerative disc disease, sacroiliac joint dysfunction on the left, myofascial pain syndrome, and
thoracic myofascial pain syndrome. Dr. Rook advised that appellant’s back condition was
“likely perpetuated by [appellant’s] ongoing work activities and over time his back pain did
progressively worsen as his mail routes seemed to get progressively longer. However, from a
medical perspective, it seems to me that it would be most appropriate to label his thoracic and
lumbar spinal injuries as being secondary to the fall that occurred on August 1, 1997.”
Dr. Rook further obtained a history of appellant sustaining multiple right knee injuries at
work, including injuries on December 18, 1995 and July 12, 2006. He indicated that a left ankle
injury aggravated appellant’s right knee condition. Dr. Rook opined that lifting, twisting, and
bending while casing and delivering mail over a period of years stressed the annular fibers of his
lumbar spine. He concluded, “This type of activity likely caused some degree of degeneration to
[appellant’s] L4/5 disc and it likely also caused significant stress to the muscles of his back
resulting in the associated myofascial condition.”
By decision dated October 17, 2012, OWCP denied appellant’s claim after finding that
the medical evidence of record was insufficient to establish a diagnosed condition causally
related to the identified work factors. It found that Dr. Rook’s April 2012 report was
3

Docket No. 14-0214 (issued May 7, 2014).

4

Appellant retired on disability effective October 4, 2010.

2

insufficiently rationalized to show that his employment caused or aggravated these diagnosed
conditions.
On November 12, 2012 appellant, through counsel, requested an oral hearing. At the
hearing, held on March 22, 2013, counsel asserted that Dr. Rook’s opinion was based on an
accurate history and review of the medical records. He maintained that OWCP did not explain
why Dr. Rook’s opinion lacked rationale. Counsel noted that appellant had a prior accepted
claim on July 19, 2005 for a left ankle injury under file number xxxxxx213.
In a March 12, 2013 report, Dr. Rook diagnosed a permanent aggravation of left ankle
joint arthritis and osteochondritis.5 He quoted from his April 12, 2012 report finding that a
July 19, 2005 work injury likely aggravated an underlying degenerative joint disease.
By decision dated June 5, 2013, the hearing representative affirmed the October 17, 2012
decision. She found that there was no rationalized medical evidence showing that the claimed
conditions were caused or aggravated by employment. The hearing representative informed
appellant that he could pursue a recurrence of an accepted condition under the claim number for
that injury.
Appellant appealed to the Board. In a decision dated May 7, 2014, the Board affirmed
the June 5, 2013 decision denying his occupational disease claim.6 The Board found that
Dr. Rook’s opinion that appellant’s employment “likely” aggravated lumbar disc and left ankle
degeneration was speculative in nature. The Board further determined that Dr. Rook relied upon
an inaccurate history of accepted work injuries on August 1, 1997 and July 12, 2006, diminishing
the probative value of his opinion.
By letter dated May 28, 2014, counsel requested that Dr. Rook explain his use of the term
“likely” in his April 12, 2012 report and provide an opinion assuming that the August 1, 1997
and July 12, 2006 incidents were not due to employment.
In a report dated June 1, 2014, Dr. Rook advised that he used the term “likely” to mean
medical probability, or more likely than not. He noted that appellant sustained a work injury to
his right knee and low back on December 18, 1995 when he fell down stairs, accepted by OWCP
for a right knee contusion and lumbosacral strain. Dr. Rook opined, “This condition has
persisted since the 1995 injury. It was aggravated and perpetuated by [appellant’s] work
activities as a letter carrier. These activities included repetitive lifting, twisting, carrying,
bending, and prolonged weight-bearing.” Dr. Rook noted that appellant periodically missed
work as a result of “flare-ups of back and knee pain” and retired on disability in January 2010 as
he was unable to continue working due to left ankle and back pain.7 He discussed the
5

On March 28, 2013 counsel submitted a February 22, 2012 letter he sent to Dr. Rook and medical evidence
dated 1995 through 2006 that the physician had reviewed in reaching his April 12, 2012 conclusion.
6

Docket No. 14-0214 (issued May 7, 2014).

7

Dr. Rook noted that OWCP had accepted that appellant sustained an aggravation of degenerative joint disease
due to his July 19, 2005 employment injury. He indicated that he would not address the left ankle injury as it had
been accepted.

3

examination findings from his April 2012 report and diagnoses of chronic right knee strain and
chronic low back pain with a history of L4-5 degenerative disc disease, left sacroiliac joint
dysfunction, myofascial pain syndrome, and a negative lower extremity neurological
examination. Dr. Rook described appellant’s work duties and opined that the repetitive activities
associated with casing and mail delivery stressed annular fibers on the outside of his lumbar disc.
He related, “With medical probability, I would state that these activities contributed to
accelerated degeneration of [appellant’s] L4-5 disc level. Additionally, I felt that these activities
caused stress to his low back musculature resulting in perpetual muscle spasm, muscle fiber
microtrauma, and scar tissue formation. I render these opinions with medical probability.”
Dr. Rook additionally determined that appellant had chronic right knee strain that was
aggravated by weight-bearing work such as mail casing and deliver. He opined, “With
prolonged standing activities, there is quadriceps muscle contraction which pushes the patella
back into the notch formed by the medial and lateral femoral condyles. This direct and
prolonged impact causes gradual erosion/degeneration of the cartilage of the joint thereby
perpetuating his ongoing knee condition.” Dr. Rook concluded that, with medical probability,
appellant experienced a permanent aggravation of his right knee and low back condition due to
his work duties and noted that he had provided “a pathophysiological explanation for his
worsening back and knee pain.” He noted that his use of “likely” in his prior report meant “a 51
[percent] likelihood as opposed to less than 50 [percent].”
On July 17, 2014 counsel requested reconsideration.
By decision dated November 10, 2014, OWCP denied modification of its June 5, 2013
decision. It found that Dr. Rook’s report was speculative in nature and that he relied upon an
inaccurate history.
On December 11, 2014 counsel again requested reconsideration. He questioned why
OWCP found that Dr. Rook had relied upon an inaccurate history of injury, noting that it was not
explained in the decision.
In a decision dated December 29, 2014, OWCP denied modification of its November 10,
2014 decision. It found that Dr. Rook relied upon a history of appellant sustaining work injuries
on August 1, 1997 and July 12, 2006.
On March 6, 2015 counsel requested reconsideration.8 He noted that OWCP did not
adjudicate whether the July 12, 2006 work injury occurred as alleged. Counsel also indicated
that appellant filed the August 1, 1997 injury claim as a recurrence of disability and OWCP
advised him to file a new injury claim. He requested that OWCP determine whether the events
occurred as alleged. Counsel submitted a medical report from August 1, 1997 discussing
appellant’s fall from a landing and evidence from 1999 regarding a notice of recurrence of
disability in 1997 due to a December 18, 1995 work injury. He further provided an October 8,
1999 OWCP decision finding that appellant had not established a recurrence of disability on

8

In a statement dated February 28, 2015, appellant described an injury that occurred on an unspecified date when
a shelf fell on his right knee.

4

August 1, 1997 after he jumped off a porch escaping a dog. OWCP advised appellant to file a
new claim rather than a recurrence of disability.
By decision dated March 16, 2015, OWCP denied appellant’s request for reconsideration
after finding that he had failed to submit evidence or had failed to raise an argument sufficient to
warrant reopening the case for further merit review under 5 U.S.C. § 8128.
On March 27, 2015 appellant, through counsel, again requested reconsideration. He
contended that the opinion of Dr. Rook was not speculative. In a report dated April 2, 2015,
Dr. Rook indicated that he expressed the opinions in his April 12, 2012 report within reasonable
medical certainty.
By decision dated June 25, 2015, OWCP denied modification of its November 10 and
December 29, 2014 decisions. It found that Dr. Rook did not fully describe the etiology of the
diagnosed conditions, including the baseline from which the aggravation occurred. OWCP also
determined that he based his opinion in part on August 1, 1997 and July 12, 2006 work injuries
not accepted as work related.
On appeal counsel contends that he did not have to show that OWCP accepted the
August 1, 1997 and July 12, 2006 incidents and that OWCP should determine whether the events
occurred as alleged. He maintains that the opinion of Dr. Rook is uncontroverted and sufficient
to warrant further development of the evidence, citing Board case law and OWCP procedures.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of 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 and/or specific condition for which compensation is claimed are causally related to
the employment injury.9 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.10
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;11 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;12 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for

9

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

10

See Ellen L. Noble, 55 ECAB 530 (2004).

11

Michael R. Shaffer, 55 ECAB 386 (2004).

12

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

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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.13
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,14 must be one of reasonable medical certainty15 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.16
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.17 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.18
ANALYSIS
Appellant filed an occupational disease claim alleging an aggravation of chronic right
knee strain, chronic left ankle strain with a permanent aggravation of arthritis, lumbar
degenerative joint disease, sacroiliac joint dysfunction, myofascial pain syndrome, and thoracic
myofascial syndrome causally related to his employment. On his prior appeal the Board found
that the April 12, 2012 and March 12, 2013 reports of Dr. Rook were insufficient to establish an
occupational disease due to the identified work factors. The Board determined that Dr. Rook’s
use of the word “likely” was speculative and that he relied upon an inaccurate history of
appellant sustaining work injuries on August 1, 1997 and July 12, 2006.
Following the Board’s decision, counsel requested that Dr. Rook address the deficiencies
in his reports identified in the Board’s decision. In a report dated June 1, 2014, Dr. Rook
reported that he used the word “likely” in his April 12, 2012 report to mean medical probability,
or more likely than not. He reviewed the examination findings from his April 12, 2012 report
and appellant’s history of a December 19, 1995 right knee contusion and lumbosacral strain.
Dr. Rook diagnosed chronic right knee strain and chronic low back pain with a history of
degenerative disc disease at L4-5, left sacroiliac joint dysfunction, and myofascial pain
syndrome. He advised that these conditions were aggravated by appellant’s work duties as a
carrier, including extensive carrying, lifting, twisting, and bending. Dr. Rook explained that
repetitive work activities, including casing and delivering mail, stressed the annular fibers of his
lumbar disc thereby accelerating his degenerative condition at L4-5 and causing muscle spasms,
microtrauma, and the formation of scar tissue in his lower back. He additionally attributed
13

Beverly A. Spencer, 55 ECAB 501 (2004).

14

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

15

John W. Montoya, 54 ECAB 306 (2003).

16

Judy C. Rogers, 54 ECAB 693 (2003).

17

Jimmy A. Hammons, 51 ECAB 219 (1999).

18

20 C.F.R. § 10.121.

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appellant’s chronic right knee strain to his employment. Dr. Rook provided rationale for his
opinion by explaining that his extensive standing, casing, and delivering mail caused contraction
in the quadriceps muscle which pushed the patella into the “notch formed by the medial and
lateral femoral condyles,” resulting in the gradual degeneration of the joint cartilage of the knee.
On April 2, 2015 he clarified that he rendered the opinions in his April 12, 2012 report within
reasonable medical certainty.
The Board finds that the case is not in posture for decision. Dr. Rook has further clarified
his report to explain his rationale for finding that appellant’s employment aggravated a
degenerative condition at L4-5 and a right knee condition. He identified the history of injury,
provided more detailed examination findings, and explained the physiologic process by which
the employment factors caused or aggravated the diagnosed conditions. The Board finds that
Dr. Rook’s reports are sufficient, given the absence of any opposing medical evidence, to require
further development of the record.19
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.20 On remand,
OWCP should refer appellant, the case record, and a statement of accepted facts to an
appropriate specialist for an evaluation and a rationalized medical opinion regarding causation.
After such further development as OWCP deems necessary, it should issue a de novo decision.21
CONCLUSION
The Board finds that the case is not in posture for decision.

19

See L.C., Docket No. 16-0655 (issued May 26, 2016); John J. Carlone, 41 ECAB 354 (1989).

20

See W.W., Docket No. 15-1130 (issued August 7, 2015); Phillip L. Barnes, 55 ECAB 426 (2004).

21

On appeal counsel argues that OWCP should determine whether he had factually established the occurrence of
the alleged August 1, 1997 and July 12, 2006 work incidents. The issue, however, is whether appellant has met his
burden of proof to establish an occupational disease as a result of factors of his federal employment.

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ORDER
IT IS HEREBY ORDERED THAT the June 25, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 11, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. ARMY CORPS OF ENGINEERS, J.
STROM THURMOND POWER PLANT,
Savannah, GA, Employer
__________________________________________

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

Docket No. 08-1742
Issued: February 2, 2009

Case Submitted on the Record

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

JURISDICTION
On June 3, 2008 appellant filed a timely appeal from the April 28, 2008 merit decision of
the Office of Workers’ Compensation Programs granting him a schedule award for four percent
permanent impairment of binaural hearing loss. The record also contains an Office decision
dated May 14, 2008 denying appellant’s request for review of the merits of his claim pursuant to
5 U.S.C. § 8128(a). Pursuant to 5 U.S.C. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merit schedule award decision and the nonmerit decision in this case.
ISSUES
The issues are: (1) whether appellant has more than four percent binaural hearing loss for
which he received a schedule award; and (2) whether the Office properly denied appellant’s
request for reconsideration pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On October 29, 2007 appellant, then a 52-year-old power plant mechanic, filed an
occupational disease claim for hearing loss in both ears caused by noise exposure in the course of
his federal employment. He indicated that he first became aware of his hearing loss on
January 19, 1995 and realized it was caused by his employment on October 24, 2007 after
undergoing an audiological evaluation. Appellant did not stop work. He subsequently filed
Form CA-7, claim for compensation, on October 29, 2007 requesting a schedule award for his
hearing loss. The employing establishment submitted results from its March and October 2001
and August 2007 hazardous noise survey documenting the decibel levels at appellant’s
workplace.
On February 28, 2008 the Office referred appellant to Dr. Thomas Crews, a Boardcertified otolaryngologist, for a second opinion evaluation to determine whether he sustained a
noise-induced hearing loss condition caused by noise exposure during federal employment.
Dr. Crews submitted a March 14, 2008 report detailing his examination with an accompanying
audiogram made on the same day. He diagnosed noise induced bilateral high frequency
sensorneural hearing loss and opined that appellant’s hearing loss was due to noise exposure
encountered in his workplace given the absence of any other precipitating factors.
Dr. Crews also recommended a trial of amplification. An audiogram performed on behalf of his
on March 14, 2008 reflected testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles
per second (cps) and revealed the following decibel losses: 15, 15, 20 and 65 for the right ear and
15, 15, 25 and 55 for the left ear respectively.
In an April 18, 2008 report, an Office medical adviser reviewed Dr. Crews’ report and
audiometric test results and concluded that appellant had a four percent bilateral sensorineural
hearing loss. In addition to authorizing hearing aids, the Office medical adviser also noted that
the date of appellant’s maximum medical improvement was March 14, 2008, the date of
Dr. Crews’ examination.
On April 22, 2008 the Office accepted appellant’s occupational disease claim for bilateral
sensorineural hearing loss. In an April 28, 2008 decision, it granted a schedule award for a four
percent bilateral hearing loss. The period of the award ran for eight weeks from March 14 to
May 8, 2008.
In a May 6, 2008 letter, appellant requested reconsideration on the basis that the number
of weeks of compensation awarded was too low. He also noted that wearing hearing aids was
like a permanent disfigurement.
On May 14, 2008 the Office denied appellant’s request for reconsideration without
reviewing the merits on the grounds that appellant did not raise any substantive legal questions
or submit new and relevant evidence.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. Where the loss of use is less than 100 percent, the amount of compensation is paid in
proportion to the percentage loss of use. The Act, however, does not specify the manner in
which the percentage loss of a member shall be determined. The method used in making such
determination is a matter which rests in the sounds discretion of the Office. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. The American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) has been adopted
by the Office for evaluating schedule losses and the Board has concurred in such adoption.1
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions. The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss. The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.2
ANALYSIS -- ISSUE 1
Appellant submitted a claim for hearing loss and the Office developed the claim by
referring him to Dr. Crews who opined that appellant’s hearing loss was due to noise exposure
encountered in his workplace given the absence of any other precipitating factors. Dr. Crews
also had an audiogram performed on his behalf and he recommended a trial of amplification.
The Office medical adviser applied the Office’s standard procedures, as noted by the
March 14, 2008 audiogram. The Office tested decibel losses at 500, 1,000, 2,000 and 3,000
cycles per second and recorded decibel losses of 15, 15, 20 and 65 respectively in the right ear.
The total decibel loss in the right ear is 115 decibels. When divided by 4, the result is an average
hearing loss of 28.75 decibels. The average loss of 28.75 decibels is reduced by the fence of 25
decibels to equal 0, which when multiplied by the established factor of 1.5, resulted in 5.63
percent impairment of the right ear. The audiogram tested decibel losses for the left ear at 500,
1,000, 2,000 and 3,000 cycles per second and recorded decibel losses of 15, 15, 25 and 55
respectively for a total decibel loss of 110 decibels. When divided by 4, the result is an average
hearing loss of 27.5 decibels. The average loss of 27.55 decibels is reduced by the fence of 25
1

Harry Butler, 43 ECAB 859 (1992).

2

E.S., 59 ECAB ___ (Docket No. 07-1587, issued December 10, 2007); Donald E. Stockstad, 53 ECAB
301 (2002), petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).

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decibels to equal 0, which when multiplied by the established factor of 1.5, resulted in 3.75
percent impairment of the left ear. The Office medical adviser then proceeded to calculate
appellant’s binaural hearing loss. The 3.75 percent hearing loss for the left ear, when multiplied
by 5, yielded a product of 18.75. The 18.75 was then added to the 5.63 percent hearing loss for
the right ear to obtain a total of 24.38. The 24.38 was then divided by 6, in order to calculate a
binaural hearing loss of 4.06 percent, rounded to 4 percent. Therefore, the evidence of record
does not establish that appellant has greater than a four percent binaural hearing loss.
As noted, when the loss of use is less than 100 percent, the amount of compensation is
paid in proportion to the percentage loss of use. The compensation schedule in the Act provides
200 weeks of compensation for complete loss of hearing in both ears.3 The 200 weeks of
compensation was multiplied by four percent in order to calculate 8 weeks as the appropriate
duration of compensation. Under the Office’s standardized procedures for determining hearing
loss impairment, appellant has no greater impairment. Consequently, the Office properly
awarded appellant eight weeks of compensation for a four percent binaural hearing loss.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.4 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS -- ISSUE 2
Appellant’s request for reconsideration consists of a letter asserting that the number of
weeks of compensation awarded was too low for a permanent disability and those hearing aids
were a permanent disfigurement. However, he does not satisfy any of the three criteria required
to reopen a case for merit review. Appellant’s letter does not attempt to show that the Office
erroneously applied the law because he did not identify a point of law that was erroneously
applied or interpreted. He also did not advance any new relevant legal arguments in his letter
requesting reconsideration. In addition, appellant did not submit any new medical evidence,
which is necessary to determine the medical issue of hearing loss impairment. As a result, no
relevant and pertinent new evidence supports his request for reconsideration.
Furthermore, appellant’s assertion that hearing aids are a permanent disfigurement is not
compensable according to the terms of the Act. His hearing aids do not constitute a serious
disfigurement of the face, head or neck of a character likely to handicap him in securing or
3

5 U.S.C. § 8107(c)(13)(b).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

4

maintaining employment.6 Therefore, appellant is not entitled to additional compensation due to
his use of hearing aids.
Consequently, the Office properly denied appellant’s request for reconsideration without
a merit review.
CONCLUSION
The Board finds that the Office properly awarded eight weeks of compensation for a four
percent binaural hearing loss. The Board also finds that the Office properly denied appellant’s
request for reconsideration without a review of the merits.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated May 14 and April 28, 2008 are affirmed.
Issued: February 2, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

See 5 U.S.C. § 8107(c)(21); see also William Tipler, 45 ECAB 185 (1993) (the Office nor the Board has the
authority to enlarge the terms of the Act or to make an award of benefits under any terms other than those specified
in the statute).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARMENT OF THE NAVY, PACIFIC
FLEET SHIPYARDS, Pearl Harbor, HI,
Employer
__________________________________________

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

Docket No. 08-1514
Issued: December 22, 2008

Case Submitted on the Record

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

JURISDICTION
On May 1, 2008 appellant timely appealed an April 15, 2008 decision of the Office of
Workers’ Compensation Programs finding that he abandoned his request for a hearing. Because
more than one year has elapsed between the last merit decision dated February 6, 2006 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant abandoned his hearing
request.
FACTUAL HISTORY
On August 15, 2005 appellant, then a retired 73-year-old health physicist, filed an
occupational disease claim alleging a bilateral hearing loss to noise exposure from the repair of
ships and submarines while employed by the employing establishment. He stated that he was
first aware and realized that his condition was employment related on January 18, 1988.

By letter dated September 12, 2005, the Office requested additional information from
appellant. It noted that 5 U.S.C. § 8122 required that the original claim for compensation be
filed within three years of the date of injury or date of awareness of a relationship between the
claimed condition and the employment, unless the immediate supervisor had actual knowledge
of a work-related medical condition within 30 days.
On September 26, 2005 appellant responded to the Office’s inquiries.
By decision dated February 6, 2006, the Office denied appellant’s claim on the grounds
that it was untimely filed.
On February 15, 2006 appellant requested an oral hearing.
By notice dated February 21, 2008, the Office advised appellant that a hearing was
scheduled for March 24, 2008 and provided the place and time. The notice was sent to his
address of record. It was not returned to the Office as undeliverable. Appellant did not appear
for his scheduled hearing.
By decision dated April 15, 2008, the Office found that appellant had abandoned his
request for a hearing.
LEGAL PRECEDENT
The statutory right to a hearing under the Federal Employees’ Compensation Act,
5 U.S.C. § 8124(b)(1), follows the initial final merit decision of the Office. Section
8124(b)(1) provides as follows: “Before review under section 8128(a) of this title, a claimant for
compensation not satisfied with a decision of the Secretary [of Labor] under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”
With respect to abandonment of hearing requests, Chapter 2.1601.6(e) of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited circumstances. All
three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant
has failed to provide any notification for such failure within 10 days of the scheduled date
of the hearing. Under these circumstances, [the Branch of Hearings and Review] will
issue a formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office].”1

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also G.J., 58 ECAB ___ (Docket No. 07-1028, issued August 16, 2007); see also
Claudia J. Whitten, 52 ECAB 483 (2001).

2

ANALYSIS
The record establishes that, on February 21, 2008, in response to appellant’s request for
an oral hearing, the Office mailed an appropriate notice of the March 24, 2008 hearing. The
Board notes that the notice was sent more than 30 days prior to the scheduled hearing.2
Appellant asserts that he did not appear for the scheduled hearing because he never received a
copy of the hearing notice. However, the record reflects that a copy of the February 21, 2008
hearing notice was mailed to the correct address of record and was not returned as undeliverable.
The Board has found that, in the absence of evidence to the contrary, a letter properly addressed
and mailed in the due course of business, such as in the course of the Office’s daily activities, is
presumed to have arrived at the mailing address in due course.3 This is known as the mailbox
rule. The record reflects that the Office properly mailed a hearing notice to appellant’s address
of record and it is presumed that it arrived at his mailing address. The record shows that
appellant did not request a postponement of the hearing and failed to provide an explanation for
his failure to attend within 10 days of the scheduled date of the hearing. As the circumstances of
this case meet the criteria for abandonment, the Board finds that appellant abandoned his request
for a hearing.
CONCLUSION
The Board finds that the Office properly found that appellant abandoned his request for a
hearing.

2

See 20 C.F.R. § 10.617(b) (provides that the Office will mail a notice of the time and place of the oral hearing
to the claimant at least 30 days before the scheduled date).
3

Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2008 is affirmed.
Issued: December 22, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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