United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Burbank, CA, Employer
__________________________________________

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

Docket No. 16-1375
Issued: January 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2016 appellant filed a timely appeal from a May 10, 2016 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 a recurrence of total
disability for the period November 7, 2014 through March 24, 2015, caused by an August 3,
2014 employment injury.
On appeal appellant generally asserts that he was totally disabled during this period.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 3, 2014 appellant, then a 54-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that he injured his left arm that day while running
bags at work. He accepted a limited-duty assignment on September 12, 2014 for the hours
5:00 a.m. to 12:30 p.m. The duties were working in divestiture where appellant would remind
passengers in line of items they should remove, check boarding passes, direct passengers to
appropriate areas, and answer questions. He would also work at the walk-through metal detector
where he would stand in front of the detector and director passengers to pass through the
monitor. On September 8, 2014 OWCP accepted sprain of shoulder and upper arm,
supraspinatus, left.2
A September 28, 2014 magnetic resonance imaging (MRI) scan of the left shoulder
demonstrated a full-thickness tear of the supraspinatus tendon.
By report dated October 14, 2014, Dr. Marc J. Friedman, a Board-certified orthopedic
surgeon, noted the history of injury and appellant’s complaint of constant left shoulder pain. He
related that appellant was working modified duty for eight hours a day, five days a week and
indicated that his job duties involved luggage screening, bag checking, and passenger screening,
which required standing, walking, bending, kneeling, squatting, lifting, carrying, pushing,
pulling, reaching at and above shoulder level, twisting, turning, and constant repetitive use of the
hands. Following physical examination, Dr. Friedman diagnosed left shoulder pain and rotator
cuff tear. He advised that appellant could continue modified duty with no over shoulder work
and lifting greater than 10 pounds.
On November 21, 2014 appellant filed a claim for compensation (Form CA-7) for the
period November 7 to 15, 2014.
He submitted form reports dated November 4 and
December 11, 2014, in which Dr. Friedman advised that appellant could not work from
October 30, 2014, “pending authorization for surgery.”
By letter dated December 17, 2014, OWCP advised appellant that to support the claimed
disability he should submit a narrative report from his physician with objective findings
explaining why he could not perform his modified job duties.
On December 22, 2014 OWCP authorized left shoulder arthroscopic surgery.3
Appellant thereafter submitted an October 14, 2014 form report from Dr. Friedman, in
which the physician advised that appellant could perform modified duty with lifting restricted to
10 pounds, no forceful pushing or pulling, and no work above the shoulder. In treatment notes
and form reports dated October 30, 2014 to January 8, 2015, Dr. Friedman noted appellant’s

2

In reports dated August 4 to October 13, 2014, Dr. J. Jason Toth, Board-certified in emergency medicine,
advised that appellant could return to modified duty with no use of left shoulder, and no overhead work. He initially
provided a 10-pound lifting restriction, which he raised to 25 pounds on August 28, 2014. On October 9, 2014
Dr. Toth reported medications of 600 milligrams (mg) of Ibuprofen every eight hours and #20 Norco at bedtime.
3

On March 3, 2015 OWCP also authorized left shoulder arthroscopic surgery and arthroscopic repair of rotator
cuff.

2

complaint of increasing shoulder pain. He reiterated his diagnoses and advised that appellant
was totally disabled.
In correspondence dated January 14, 2015, the employing establishment challenged
appellant’s disability claim. It noted that he was performing limited duty until October 30, 2014
when Dr. Friedman placed appellant in total disability status. The employing establishment
maintained that there was no objective basis to find appellant totally disabled from his modified
duties.
Appellant continued to submit claims for compensation.
By decision dated February 2, 2015, a hearing representative of OWCP denied
appellant’s claim for wage-loss compensation beginning November 7, 2014 and continuing
because the medical evidence did not support the claimed disability.
Appellant timely requested a hearing before a hearing representative of OWCP’s Branch
of Hearings and Review. On March 4, 2015 he changed his request to a review of the written
record.
On a February 23, 2015 certificate of disability form, Dr. Friedman advised that appellant
was unable to work from October 30, 2014 due to increased pain and discomfort in his left
shoulder and that he needed surgery. He also submitted treatment notes dated January 6,
February 24, and March 19, 2015, in which he repeated appellant’s complaint of left shoulder
pain which, the physician advised, had increased to the point where appellant could not work.
Dr. Friedman noted that appellant attempted to work with restrictions, but was placed on total
disability due to a significant increase in pain with any use of his shoulder.4
On March 25, 2015 Dr. Friedman performed left shoulder arthroscopic rotator cuff repair
with subacromial decompression. Postoperative diagnoses included a full-thickness rotator cuff
tear. OWCP paid disability compensation beginning March 25, 2015.
Dr. Friedman provided follow-up care. On April 23 and May 21, 2015 he noted
appellant’s complaint of some left upper extremity radicular complaints with occasional neck
pain. Dr. Friedman diagnosed left shoulder pain, status post arthroscopic rotator cuff repair, and
rule-out C6 radiculitis.
In a June 5, 2015 report, Dr. Z. Elizabeth Bloze, a Board-certified physiatrist and
associate of Dr. Friedman, noted the history of injury and March 25, 2015 surgery. She reported
complaints of left shoulder pain and tingling in appellant’s arm. Electrodiagnostic studies done
by Dr. Bloze that day demonstrated moderate C6 sensory dysfunction without denervation and
no evidence of left cervical radiculopathy or injury to the left suprascapular, axillary, or long
thoracic nerve.5 She advised that the left cervical radiculopathy was also the result of the
October 2014 work injury. Dr. Bloze recommended cervical MRI scan.
4

Dr. Stanford C. Lee, Board-certified in emergency medicine, performed a preoperative examination on
March 19, 2015. He advised that appellant was medically cleared for surgery.
5

A copy of the study report is found in the case record.

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On July 2, 2015 Dr. Friedman advised that appellant could return to modified duty on
July 6, 2015 with no lifting, carrying, forceful pushing or pulling, or work above the shoulder
with the left upper extremity, and no repetitive movement of the neck. Appellant accepted a
modified position on July 6, 2015.
In correspondence dated July 24, 2015, Dr. Friedman advised that on October 3, 2014
appellant was placed on total disability due to the August 3, 2014 employment injury, which
resulted in a rotator cuff tear for which he took strong pain medication that made him unable to
drive a motor vehicle or take any type of public transportation before 5:00 a.m. to get to work.
He concluded that following surgery appellant continued to suffer from pain, stiffness, burning,
spasms, and aching.6 On September 15, 2015 Dr. Friedman again advised that appellant was
unable to drive a motor vehicle or take any type of transportation to arrive at work in a timely
manner. He further opined that appellant’s left cervical radiculopathy was a result of the
October 2014 employment injury.
Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon, evaluated appellant on
October 1, 2015. He described the August 3, 2014 employment injury and appellant’s medical
history. Current complaints included constant pain at the base of appellant’s neck, headaches,
and occasional pain in the left shoulder and arm. Dr. Tauber reviewed some medical records and
provided findings. He diagnosed status post arthroscopic rotator cuff repair with subacromial
decompression and possible adhesive capsulitis, and cervical radiculopathy with C5-6 disc
protrusion. Regarding the period November 7, 2014 through March 24, 2015, Dr. Tauber
advised that as a transportation security officer, appellant would have to lift luggage along with
pushing, pulling, and grasping, which, he opined, were clearly inappropriate activities for an
individual with a rotator cuff tear. He asserted that appellant’s cervical condition was also work
related because appellant had to carry out repetitive lifting of heavy luggage and had to wandsearch passengers. Dr. Tauber also provided an impairment rating for appellant’s left shoulder.
On October 8, 2015 Dr. Friedman indicated that he had nothing further to add in support
of his position regarding appellant’s period of total disability.
Counsel submitted a brief to the Branch of Hearings and Review on November 10, 2015.7
He asserted that the February 2, 2015 decision denying disability compensation for the period
November 7, 2014 through March 24, 2015 should be reversed, based on the medical evidence of
record. Counsel further maintained that the claim should be expanded to include full-thickness
tear of the supraspinatus tendon and adhesive capsulitis of the left shoulder and cervical
radiculopathy with disc protrusion at C5-6. In support of his assertions, he submitted duplicates
of reports previously of record: the medication list from Dr. Toth dated October 9, 2014, reports
from Dr. Friedman dated October 30, 2014 to September 15, 2015, Dr. Friedman’s operative
report of March 25, 2015, the July 28, 2015 report of the MRI scan of the cervical spine, and
Dr. Tauber’s October 1, 2015 report.
By decision dated January 4, 2016, an OWCP hearing representative affirmed the
February 2, 2015 decision. He noted that Dr. Tauber’s description of appellant’s modified duties
6

A July 28, 2015 MRI scan of the cervical spine demonstrated disc bulges at C5-6, C6-7, and C7-T1.

7

Counsel’s representation ended on November 10, 2015.

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was inaccurate, that Dr. Friedman had not explained why appellant’s pain precluded him from
his modified duties, or why the pain medication precluded him from driving or taking public
transportation. The hearing representative advised that appellant should file an occupational
disease claim for his cervical condition, and ordered that this claim should be expanded to
include a torn left supraspinatus tendon. On January 6, 2016 OWCP expanded the claim to
include a torn left supraspinatus tendon.
In a January 5, 2016 report, Dr. H. Leon Brooks, a Board-certified orthopedic surgeon
and associate of Dr. Friedman, who cosigned the report, described appellant’s medical and
surgical history. He noted appellant’s current complaints of left shoulder and radiating neck
pain. Dr. Brooks described examination findings and provided an impairment rating. He
concluded that appellant could return to regular duties with the restriction of no repeated
activities at or above shoulder level.
On February 12, 2016 appellant requested reconsideration. He advised that he did not
stop work immediately after the August 3, 2014 employment injury. Appellant continued to
work modified duty, but missed intermittent periods for medical appointments. He provided
copies of his earning and leave statements covering the period July 27 to September 20, 2014.
Appellant explained that the modified duties he was performing when he stopped work exceeded
those described, indicating that he had to twist and turn his neck and would inadvertently extend
his arms to assist passengers. He also maintained that he could not work due to increased
discomfort and pain and was under the influence of medication. Appellant attached a number of
medical reports previously of record.
In a merit decision dated May 10, 2016, OWCP denied modification of the prior decision.
It noted that there was no evidence to show that appellant was made to work beyond the
restrictions provided by Dr. Toth and initially by Dr. Friedman. OWCP found that Dr. Friedman
had not provided a rationalized explanation as to why pain medications kept appellant from
modified duties, and that a pending authorization for surgery did not establish disability from
work. It concluded that appellant should consider filing a separate occupational disease claim
for his neck condition.8
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.9 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical

8

The Board notes that, following this decision on appeal to the Board, appellant filed a schedule award claim
(Form CA-7) that is under development by OWCP.
9

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

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requirements of such an assignment are altered so that they exceed his or her established physical
limitations.10
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative, and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.11
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with sound medical
reasoning.12
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish a recurrence
of total disability for the period November 7, 2014 through March 24, 2015, due to his August 3,
2014 employment injury. The accepted conditions were sprain of shoulder and upper arm,
supraspinatus, left, and complete rotator cuff tear, supraspinatus, left shoulder.
Following the August 3, 2014 employment injury, appellant missed intermittent periods
for medical treatment until he stopped work on November 7, 2014 and claimed wage-loss
compensation. Although he argued that the modified duties he was performing when he stopped
work exceeded his restrictions, he has submitted no evidence corroborating this assertion.
Medical opinion evidence submitted by appellant to support a claim for compensation
should reflect a correct history and should offer a medically sound explanation by the physician
of how the modified duties he was performing could no longer be performed beginning
November 7, 2014 due to the accepted condition.13 Appellant submitted no such evidence in this
case.
Following the August 3, 2014 employment injury, appellant was initially treated by
Dr. Toth who advised that he could return to modified duty with no use of the left shoulder and
no overhead work. He prescribed 600 mg of Ibuprofen every eight hours and #20 Norco at
bedtime.14 In October 2014 appellant began treatment with Dr. Friedman.
10

Id.

11

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
12

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

13

Id.

14

Supra note 2.

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Dr. Friedman initially advised that appellant could continue modified duty, but in form
reports beginning November 4, 2014, he advised that appellant could not work, initially noting
“pending authorization for surgery.” He later advised that appellant was totally disabled
beginning October 30, 2014 due to increased left shoulder pain and discomfort and that the pain
medication he took rendered him unable to drive or take public transportation before 5:00 a.m. in
order to get to work. There is, however, no evidence of the medication Dr. Friedman prescribed
appellant, and he did not reflect specific knowledge of the limited duties appellant was
performing after the August 3, 2014 employment injury.
To meet appellant’s burden of proof, the medical evidence submitted should reflect a
correct history, and the physician should offer a medically sound explanation of how the specific
duties appellant performed in his modified position caused or aggravated the claimed condition
such that he became totally disabled. The opinion must be supported by medical rationale
explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.15 Medical form reports and narrative statements merely asserting
causal relationship cannot discharge appellant’s burden of proof.16 The medical evidence must
also include rationale explaining how the physician reached his or her opinion.17 The Board
concludes that that Dr. Friedman’s opinion is of insufficient rationale to establish that appellant
was totally disabled from his modified duties from November 7, 2014 through March 24, 2015,
until his surgery on March 25, 2015.
Appellant was also seen in consultation by Dr. Tauber on October 1, 2015. Dr. Tauber
too exhibited no knowledge of appellant’s modified duties, and instead advised that he had to
lift, pull, push, and grasp luggage. Thus, his opinion was based on an incorrect history and the
Board has long held that medical reports must be based on a complete and accurate factual and
medical background, and medical opinions based on an incomplete or inaccurate history are of
little probative value.18 Dr. Tauber’s opinion is therefore insufficient to meet appellant’s burden
of proof.
As noted above, appellant’s burden requires that he furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and who supports that
conclusion with sound medical reasoning.19 Where no such rationale is present, the medical
evidence is of diminished probative value.20 As appellant failed to submit sufficient medical
evidence to establish a recurrence of disability for the period November 7, 2014 through

15

See J.J., Docket No. 09-27 (issued February 10, 2009).

16

Sedi L. Graham, 57 ECAB 494 (2006).

17

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

18

Douglas M. McQuaid, 52 ECAB 382 (2001).

19

Supra note 12.

20

Mary A. Ceglia, 55 ECAB 626 (2004).

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March 24, 2015 causally related to the accepted August 13, 2014 left shoulder injury, he has
failed to meet his burden of proof.21
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of total disability for the period November 7, 2014 through March 24, 2015, caused by an
August 3, 2014 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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Id.

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

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

Docket No. 14-507
Issued: August 12, 2014

Case Submitted on the Record

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

JURISDICTION
On December 28, 2013 appellant filed a timely appeal from July 2, 2013 merit decisions
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award and overpayment issues of this case.
ISSUES
The issues are: (1) whether appellant has more than five percent impairment of the right
upper extremity, for which she received a schedule award; (2) whether OWCP properly found
that she received an overpayment of compensation in the amount of $1,186.71 for the period
February 26 to March 9, 2013 because she received compensation after she returned to work; and
(3) whether it properly denied waiver of recovery of the overpayment.
1

As the date of receipt of the appeal, January 7, 2014, would render the appeal untimely filed, the date of the
postmark, December 28, 2013, is utilized to determine the date of filing. 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 12, 2012 appellant, then a 51-year-old mail clerk,
sustained a right shoulder injury when she slipped and fell on ice in the parking lot. She stopped
work. Appellant’s claim was accepted for right shoulder fracture of the humerus. She returned
to limited duty on March 5, 2012. On March 11, 2012 appellant stopped work as the employing
establishment could not accommodate her restrictions. OWCP paid wage-loss compensation and
on August 9, 2012 placed her on the periodic rolls.
In a September 26, 2012 report, Dr. John J. Aschberger, Board-certified in physical
medicine and rehabilitation, related appellant’s complaints of right arm pain, restriction of
motion at the hand and neck pain with increasing irritation and tightness. He noted that on
January 12, 2012 she fractured her right humerus when she fell on ice at work. Dr. Aschberger
reported that appellant underwent a conservative course of treatment and noted that
electrodiagnostic testing showed no identifiable abnormality. He initially examined her on
March 1, 2012 and expected her distal issues to resolve but she never actually regained full
motion. Upon examination, Dr. Aschberger observed that appellant carried her right shoulder
slightly elevated and noted restriction of motion at the digits with some flexion tightening.
Regarding appellant’s physical examination of the right shoulder, he reported that shoulder range
of motion was assessed utilizing the goniometric technique. Three trials in each plane of motion
were performed with maximum measurements recorded. Dr. Aschberger noted that the
measurements were consistent results on three trials. “For flexion [appellant] measured 110, 110
and 100 degrees, extension of 30 degrees three times, abduction 110, 105 and 110 with
30 degrees of adduction, internal rotation -- 20 degrees, 20 degrees and 10 degrees and external
rotation 50 degrees.” Pursuant to Table 15-34, at page 475 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (hereinafter,
A.M.A., Guides), range of motion of the shoulder demonstrated flexion of 110 degrees, a three
percent impairment; extension to 30 degrees, a one percent impairment; abduction to 110
degrees, a three percent impairment; adduction to 30 degrees, a one percent impairment; internal
rotation to 20 degrees, a four percent impairment; and external rotation to 50 degrees, a two
percent impairment. Dr. Aschberger diagnosed right humeral fracture with symptoms of
restricted motion at the shoulder.
Utilizing the sixth edition of the A.M.A., Guides, Dr. Aschberger opined that, based on
loss of range of motion to the shoulder and hand, appellant had 22 percent impairment of the
upper extremity for the hand. He referred to Table 15-3 and rated her range of motion for each
digit for a total of 24 percent impairment of the hand, which converted to 22 percent impairment
of the upper extremity. Dr. Aschberger also noted 14 percent impairment for limitations in range
of motion at appellant’s shoulder, pursuant to Table 15-34. He calculated that the values
combined to a total impairment of 33 percent impairment of the upper extremity, which
converted to 20 percent whole person impairment. Dr. Aschberger reported that appellant was at
maximum medical improvement. He recommended that she work with restrictions.
Dr. Stephen Danahey, a general surgeon, in his November 7, 2012 report, related
appellant’s complaints of discomfort in her shoulder and hand, that her fingers locked and that
she felt popping and clicking in her neck. He reported that her physical examination was
basically unchanged from the prior visit and diagnosed right humeral fracture with symptoms of

2

restricted motion at the shoulder and at the right hand. Dr. Danahey reviewed Dr. Aschberger’s
September 26, 2012 impairment rating and agreed that appellant reached maximum medical
improvement.
In a January 22, 2013 report, Dr. Danahey stated that appellant felt that she could do her
job but noted that she still complained of difficulty squeezing, making a fist with her right hand
and bending or flexing the digits of her right hand. He diagnosed status post right humeral
fracture with symptoms of restricted motion at the shoulder and at the right hand.
Appellant returned to full duty on February 25, 2013. A payroll computer printout listed
that she continued to receive compensation until March 9, 2013 for a total of 13 days. Appellant
was paid $15.78 from March 1 to 9, 2013 and $1,285.60 from February 25 to March 9, 2013.
OWCP determined that she was overpaid a total of $1,301.38.
In a February 27, 2013 letter, the employing establishment advised OWCP that appellant
had returned to full duty on February 25, 2013.
In a March 14, 2013 report, Dr. Morley Slutsky, Board-certified in occupational medicine
and OWCP’s medical adviser, reviewed the medical evidence, including Dr. Aschberger’s
September 26, 2012 impairment rating. He noted that Dr. Aschberger used the less preferred
impairment rating method for loss of range of motion. Further, Dr. Aschberger included an
impairment rating for loss of hand motion, which was not an accepted condition. Dr. Slutsky
explained that according to the sixth edition of the A.M.A., Guides the diagnosis-based
impairment method was the preferred rating method for the upper extremities or that range of
motion impairment method should be used as a physical adjustment factor and when no other
approach is available. He quoted the A.M.A., Guides as follows:
“Section 15.2, page 387 indicates, ‘Range of motion is used primarily as a
physical examination adjustment factor and only to determine actual impairment
values in the rare case when it is not possible to otherwise define impairment; this
is a significant change from prior editions.’”
Utilizing Table 15-5 of the sixth edition of the A.M.A., Guides, Dr. Slutsky stated that
the accepted diagnosis of humerus fracture would be used for the impairment rating. He noted
that appellant was treated conservatively and healed but she continued to complain of persistent
symptoms in the right upper extremity. Dr. Slutsky pointed out that thermograms and
electrodiagnostic testing were negative for peripheral nerve damage. Appellant was a class 1 for
a displaced humerus fracture. Dr. Slutsky utilized Table 15-34 to determine that she had 14
percent impairment of the right upper extremity for loss of range of the shoulder. He referred to
Table 15-35 to determine that appellant’s loss of range of motion of her right shoulder equaled a
grade modifier of 2. Appellant also had a grade modifier of 2 based on physical examination for
tenderness and some evidence of dysfascularization. Dr. Slutsky applied the net adjustment
formula of 2 to rate five percent impairment of the right upper extremity.
On April 10, 2013 OWCP issued a preliminary decision that appellant received an
overpayment in the amount of $1,285.60 because she received wage-loss compensation for total
disability after she returned to work on March 9, 2013 at full salary. An overpayment calculation

3

worksheet noted that appellant was paid $2,768.98 from February 10 to March 9, 2013 but she
should have only received $1,483.38, which resulted in an overpayment of $1,285.60. OWCP
found that she was without fault in the creation of the overpayment. It requested that appellant
complete the enclosed overpayment recovery questionnaire and submit supporting financial
documents within 30 days of the date of the letter.
Appellant claimed on April 19, 2013 that she returned to work on February 26, 2013 and
submitted a Form SF-50.
Based on that evidence OWCP amended its preliminary determination to find that
appellant received an overpayment of $1,186.71. An amended overpayment worksheet found
that appellant was paid $2,768.98 from February 10 to March 9, 2013 but was only entitled to
$1,582.27 for a total overpayment of $1,186.71.
Appellant noted her disagreement with the amount of the overpayment on May 23, 2013.
She stated that the overpayment needed to be corrected to reflect the insurance deduction amount
that she paid covering the period February 10 to March 9, 2013. Appellant explained that, after
she returned to work on February 26, 2013, she was no longer on OWCP payrolls and paid for
basic life and health insurance for the period February 10 to March 9, 2013. She noted that the
total deduction for this period was $134.94. Appellant did not request a telephone conference or
prerecoupment hearing.
By decision dated July 2, 2013, OWCP finalized the overpayment in the amount of
$1,186.71. It found that appellant was without fault in the creation of the overpayment but
denied waiver of recovery because she did not submit any information to support that recovery
would defeat the purpose of FECA or be against equity and good conscience. OWCP noted that
while she responded to the preliminary determination she did not request a waiver or
prerecoupment hearing. It determined that it would deduct the full of amount of $1,186.71 from
appellant’s July 2, 2013 schedule award payment.
In a separate July 2, 2013 decision, OWCP granted a schedule award for five percent
impairment of the right upper extremity. The award ran for a period March 10 to June 27, 2013
for 15.6 weeks. OWCP noted that an overpayment of $1,186.71 would be deducted from the
schedule award payment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such a determination is a matter that rests within the sound discretion of
OWCP.4 For consistent results and to ensure equal justice, the Board has authorized the use of a
3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

4

single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standard for evaluating schedule
losses.5 Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides as the
appropriate edition for all awards issued after that date.6
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator identifies the impairment class for the diagnosed condition (CDX),
which is then adjusted by grade modifiers based on Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.9
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted for right shoulder fracture of the humerus. She submitted
an impairment rating by her treating physician for a schedule award. On July 2, 2013 OWCP
granted appellant a schedule award for five percent impairment of the right upper extremity. The
Board finds that the medical evidence of record establishes that appellant has 14 percent
impairment of her right arm.
In a September 26, 2012 report, Dr. Aschberger found that appellant had 33 percent
impairment of the upper extremity, which converted to 20 percent whole person impairment. He
referred to Table 15-13 of the sixth edition of the A.M.A., Guides and rated her range of motion
for each digit of the hand for a total of 24 percent impairment of the hand, which converted to 22
percent impairment. The only accepted condition in this case, however, is the right shoulder
fracture. Therefore, there is no entitlement to a schedule award for a hand injury.
Dr. Aschberger rated a 14 percent permanent impairment for limitation in range of
motion of appellant’s right shoulder. Regarding the accepted shoulder condition, he provided an
impairment rating based on the sixth edition of the A.M.A., Guides and examination findings.
On March 12, 2013 OWCP referred appellant’s schedule award claim to the district
medical adviser. In a report dated March 12, 2013, Dr. Slutsky, an OWCP medical adviser,
5

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

6

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
7

A.M.A., Guides 383-419.

8

Id. at 411.

9

See supra note 6 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(d)
(August 2002).

5

reviewed the medical evidence for rating impairment under the A.M.A., Guides. He noted that
while Dr. Aschberger had properly determined that appellant has a 14 percent permanent
impairment of the right upper extremity due to loss of motion of the shoulder, loss of range of
motion was the less preferred method for rating impairment under Chapter 15. Dr. Slutsky
explained that according to pages 387 and 481 of the sixth edition of the A.M.A., Guides, the
diagnosis-based impairment method is the preferred rating method for the upper extremities or
that range of motion impairment method should be used as a physical adjustment factor and
when no other approach is available. Utilizing Table 15-5 of the sixth edition of the A.M.A.,
Guides, he stated that appellant was a class 1 for a diagnosis of displaced humerus fracture.
Dr. Slutsky determined that appellant had grade modifiers of 2 for functional history and grade
modifier for physical examination based on findings. Applying the net adjustment formula of 2,
he found that appellant had five percent impairment of the right upper extremity. Dr. Slutsky
indicated a date of maximum medical improvement of September 26, 2012, the date of
Dr. Aschberger’s impairment rating report.
The Board finds that OWCP’s medical adviser incorrectly determined that the range of
motion method should be only used when no other approach was available and only used as an
alternative to the diagnosis-based rating when there were no diagnosis-based ratings available.10
Section 15.2 at page 387 of the A.M.A., Guides states that “range of motion is used primarily as
a physical examination adjustment factor and only to determine actual impairment values when a
grid permits its use as an option.” Appellant’s claim has been accepted for fracture of the right
shoulder. Fracture of the shoulder is evaluated on page 405 of the A.M.A., Guides, Table 15-5,
Shoulder Regional Grid.11 By means of an asterisk, Table 15-5, the Shoulder Regional Grid
provides that for a fracture of the shoulder “if motion loss is present, this impairment may
alternatively be assessed using Section 15.7, Range of Motion Impairment.” The Board has
previously affirmed that appellant is entitled to a range of motion impairment rating under the
sixth edition of the A.M.A., Guides, for shoulder impairment, when such impairment is greater
than the diagnosis-based rating.12
Regarding the range of motion examination, the A.M.A., Guides state that the range of
motion examination is performed by recording the active measurements from three separate
range of motion efforts. Measurements should be rounded up or down to the nearest number
ending in zero. All measurements should fall within 10 degrees of the mean of these three
measurements. The maximum observed measurement is used to determine the range of motion
impairment.13
Dr. Aschberger explained that range of motion of the shoulder had been tested in three
trials. The maximum observed measurement for flexion was 110 degrees, extension 30 degrees,
10

See T.T., Docket No. 13-258 (issued April 17, 2013).

11

A.M.A., Guides 405.

12

G.O., Docket No. 13-1973 (issued March 11, 2014).

13

A.M.A., Guides 464. Compare D.U., Docket No. 13-2086 (issued February 11, 2014). (The examining
physician did not establish that he conformed to this protocol in providing a loss of range of motion rating of the
employee’s arms).

6

abduction 110 degrees, adduction 30 degrees, internal rotation 20 degrees and external rotation
50 degrees. Each measurement fell within 10 degrees of the mean. Shoulder range of motion is
evaluated under Table 15-34.14 Pursuant to this table, flexion of 110 degrees is a 3 percent
impairment, extension to 30 degrees is a 1 percent impairment, abduction of 110 degrees is a 3
percent impairment, adduction to 30 degrees is a 1 percent impairment, internal rotation to 20
degrees is a 4 percent impairment, external rotation to 50 degrees is a 2 percent impairment, for a
total impairment of 14 percent.
Dr. Slutsky reviewed the medical evidence from Dr. Aschberger and concurred that
appellant had a 14 percent impairment of the right upper extremity under the sixth edition of the
A.M.A., Guides for loss of motion, but used the preferred diagnosis-based estimate of 5 percent.
The Board finds that Dr. Aschberger’s range of motion rating is in accordance with the protocols
pertaining to upper extremity impairment determinations and represents the weight of medical
opinion. Appellant has a 14 percent permanent impairment of the right arm.
On appeal, appellant contends that her schedule award is very little for the lifetime
permanent work injuries. She also addressed several discrepancies between the ratings of
Dr. Aschberger and the district medical adviser. As noted, applying the protocols pertaining to
upper extremity impairment under the sixth edition of the A.M.A., Guides both Dr. Aschberger
and Dr. Slutsky determined that appellant had a 14 percent permanent impairment of the right
shoulder due to loss of motion.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.15
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.16 A claimant is not entitled to receive total disability compensation and
actual earnings for the same period. OWCP procedures provide that an overpayment in
compensation is created when a claimant returns to work but continues to receive wage-loss
compensation.17
14

Id. at 475.

15

5 U.S.C. § 8102.

16

Id. at § 8116(a).

17

Danny E. Haley, 56 ECAB 393 (2005); supra note 6 at Part 6 -- Debt Management, Initial Overpayment
Action, Chapter 6.200.2(a) (May 2004).

7

ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount
of $1,186.71. OWCP accepted that on January 12, 2012 she sustained a right shoulder injury in
the performance of duty and stopped work. On March 5, 2012 appellant returned to limited duty.
On March 11, 2012 she stopped work again because the employing establishment could not
accommodate her restrictions. OWCP paid disability compensation and placed appellant on the
periodic rolls. The record reveals that she returned to work on February 26, 2013 but continued
to receive compensation until March 9, 2013.
Because she returned to work on
February 26, 2013, appellant was no longer entitled to receive compensation after that date.18
OWCP calculated the overpayment by subtracting the amount she should have received for the
period February 10 to March 9, 2013, $1,582.27, from the amount that she actually received,
$2,768.98, to find an overpayment of $1,186.71. Accordingly, the Board will affirm the fact and
amount of overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.19
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment.20 OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in sections 10.434 and 10.437 of the
implementing federal regulations.21
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses and the
beneficiary’s assets do not exceed a specified amount as determined by OWCP.22 Additionally,
recovery of an overpayment is considered to be against equity and good conscience when any
individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when any individual, in reliance on such payment or on notice
18

See supra note 16; 20 C.F.R. § 10.500.

19

Id. at § 8129(b).

20

James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

21

20 C.F.R. §§ 10.434 and 10.437.

22

Id. at § 10.436(a)(b). For an individual with no eligible dependents, the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Supra note 17 at Chapter 6.200.6(a)(1)(b) (June 2009).

8

that such payments would be made, gives up a valuable right or changes his or her position for
the worse.23
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.24 Failure to submit the requested information within 30 days
of the request shall result in the denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.25
As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from known facts.26
ANALYSIS -- ISSUE 3
OWCP advised appellant by an April 10, 2013 notice of its preliminary determination of
the $1,186.71 overpayment and that she was not at fault. It advised her to submit information
regarding her income, assets and expenses by completing a questionnaire and providing
supporting documentation. Appellant, however, did not provide any financial information or
documentation. In the absence of the information requested, OWCP could not determine
whether or not recovery of the overpayment could defeat the purpose of FECA or be against
equity and good conscience. Therefore, it properly denied waiver of recovery.27
CONCLUSION
The Board finds that appellant’s impairment rating is modified to reflect a 14 percent
impairment of her right upper extremity. The Board also finds that she received an overpayment
of compensation of $1,186.71 for the period February 26 to March 9, 2013 because she received
compensation after she returned to work. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment.

23

Id. at § 10.437(a)(b).

24

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

25

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

26

Daniel J. Perea, 42 ECAB 214 (1990).

27

Supra note 25.

9

ORDER
IT IS HEREBY ORDERED THAT the July 2, 2013 schedule award is affirmed as
modified. The July 2, 2013 overpayment decision of the Office of Workers’ Compensation
Programs is affirmed.
Issued: August 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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)

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

Docket No. 19-0600
Issued: August 12, 2019

Case Submitted on the Record

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

JURISDICTION
On January 24, 2019 appellant filed a timely appeal from a January 7, 2019 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.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted November 5, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 7, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On November 15, 2018 appellant, then a 51-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 5, 2018 he sustained injuries to his arm, ankle, left
knee, and forehead when a dog bit him while in the performance of duty. On the reverse side of
the claim form the employing establishment indicated that appellant stopped work on the date of
injury.
Appellant submitted a continuation of pay (COP) nurse’s report dated December 4, 2018,
which indicated that appellant returned to work on November 29, 2018.
In a development letter dated December 7, 2018, OWCP advised appellant of the factual
and medical deficiencies of his claim. It informed him of the evidence necessary to establish his
claim. OWCP specifically requested that appellant submit a narrative medical report from his
treating physician which provided a diagnosis and the physician’s rationalized medical explanation
as to how the alleged employment incident caused the diagnosed condition. Appellant was
afforded 30 days to submit the necessary evidence.
OWCP did not receive further evidence.
By decision dated January 7, 2019, OWCP denied appellant’s claim finding that appellant
had not submitted evidence containing a medical diagnosis in connection with the accepted
November 5, 2018 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including 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
in the performance of duty, as alleged, and that any specific condition or disability 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 on a traumatic injury or an
occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); R.M., Docket No. 18-1281 (issued March 6, 2019); see Jacquelyn L. Oliver, 48 ECAB
232, 235-36 (1996).
5

S.G., Docket No. 18-1373 (issued February 12, 2019); Michael E. Smith, 50 ECAB 313 (1999).

6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

2

occurred.7 The second component is whether the employment incident caused a personal injury.8
An employee may establish that an injury occurred in the performance of duty as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the accepted incident.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.11
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the accepted November 5, 2018 employment incident.
The Board finds that appellant has not submitted medical evidence from a physician
containing a diagnosis in connection with the November 5, 2018 employment incident.13 The only
evidence appellant submitted to the record was his completed Form CA-1 and a continuation of
pay nurse’s report dated December 4, 2018 which is of no probative value. OWCP advised
appellant in a development letter dated December 7, 2018 that further medical evidence was
necessary to establish his claim. It also afforded him an opportunity to submit a narrative medical
report from his physician, which included a diagnosis and an opinion regarding causal
relationship.14 However, appellant did not respond. He has the burden of proof to submit
rationalized medical evidence establishing that a diagnosed medical condition was causally related

7

C.L., Docket No. 18-1732 (issued April 2, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine
Pendleton, 40 ECAB 1143 (1989).
8
C.L., id.; R.M., supra note 4; B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB
354 (1989).
9

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11
E.V., Docket No. 18-1617 (issued February 26, 2019); see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L.
Fowler, 45 ECAB 365 (1994).
12

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

13

C.L., supra note 7; see E.B., Docket No. 18-0014 (issued July 12, 2018); L.F., Docket No. 17-1511 (issued
November 28, 2017); J.P., Docket No. 14-0087 (issued March 14, 2014).
14

See A.F., Docket No. 17-1374 (issued March 19, 2019).

3

to the accepted November 5, 2018 employment incident.15 Appellant has not submitted such
evidence and thus has not met his 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 his burden of proof to establish a traumatic
injury causally related to the accepted November 5, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

15

See R.C., Docket No. 18-1639 (issued February 26, 2019).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant

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and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Shorterville, AL,
Employer
__________________________________________
Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-431
Issued: July 20, 2012

Case Submitted on the Record

ORDER ERRATUM
The Board issued a decision and order in the above-entitled case on July 6, 2011. The
Board notes that the correct issuance date should have been July 6, 2012.
The Board will reissue the decision and order with a new issuance date which will
accompany this order.
Issued: July 20, 2012
Washington, DC

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

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

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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________
Appearances:
Fernando A. Lara, for the appellant
Office of Solicitor, for the Director

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)

Docket No. 13-596
Issued: August 23, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 8, 2013 appellant filed an application for review of a November 30, 2012
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
recurrence of disability.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that,
when adjudicating a claim, OWCP is obligated to consider all evidence properly received before
a final decision is issued. In the present case, appellant filed a claim for recurrence of disability
arising on April 27, 2012 and submitted, inter alia, an October 8, 2012 report from
Dr. Anthony M. Hicks prior to issuance of the November 30, 2012 decision. Nonetheless,
OWCP denied her claim indicating that it did not receive any new medical evidence.
Accordingly, the case will be remanded to enable OWCP to properly consider all of the
evidence in the case record at the time of the November 30, 2012 decision. Following this and
any further development deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s claim.

1

41 ECAB 548 (1990).

IT IS HEREBY ORDERED THAT the November 30, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this order of the Board.
Issued: August 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 08-354
Issued: May 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 November 14, 2007 appellant filed a timely appeal from the December 27, 2006 and
July 5, 2007 merit decisions of the Office of Workers’ Compensation Programs, which denied
his claim of consequential injury and additional impairment. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant developed a knee, hip or back injury as a consequence of
his employment-related ankle and foot injuries, causing additional impairment.
FACTUAL HISTORY
On May 14, 1994 appellant, then a 44-year-old mail handler, filed a claim alleging that
his bilateral plantar fasciitis was a result of his federal employment: “Condition began within 45
days of original injury and has progressed to date. Condition dramatically improves when not

standing on job-site floors.”1 The Office accepted his claim for bilateral plantar fasciitis and
bilateral subtraumatic subtalar arthritis. Appellant received a schedule award for a 15 percent
impairment of his right lower extremity and a 14 percent impairment of his left lower extremity.
A conflict in medical opinion arose on the extent of appellant’s permanent impairment.
On March 6, 2006 an Office hearing representative directed the Office to refer appellant to an
impartial medical specialist to determine whether he developed a knee, hip or back condition in
any way causally related to his accepted ankle and foot injuries. “After having addressed such,”
the hearing representative stated, “the physician should then address in terms of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, fifth edition, all
permanent impairment experienced by the claimant as a result of all employment-related
conditions either by injury or consequential injury related thereto.”
The Office referred appellant, together with the case file and a statement of accepted
facts, to Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon. On November 29, 2006
Dr. Didizian reviewed appellant’s history and symptoms and described his findings on physical
examination. He noted that appellant’s gait pattern was alternating with all three stages of gait
analysis. Appellant was walking at a slower pace, with or without a cane. He was able to stand
on his toes and heels holding the examination table but indicated that he could not do so
independently without a cane.
Dr. Didizian found that appellant had a three percent pain-related impairment of each
lower extremity due to the ankles. He also found a three percent pain-related impairment of each
lower extremity due to the knees. Dr. Didizian did not report impairment due to the hips or low
back.2
On the issue of consequential injury, Dr. Didizian offered the following opinion:
“I do not have any scientific work to indicate that if someone has plantar fasciitis
or ankle sprain he/she will develop eventual knee pathology, hip pathology or
back pathology. I would be interested in reading such a scientific publication if
there is one in existence.”
In a decision dated December 27, 2006, the Office denied an additional schedule award.
The Office found that Dr. Didizian’s opinion represented the weight of the medical evidence and
established no consequential injury to the knees, hips or back and only a three percent
impairment of each lower extremity. On July 5, 2007 an Office hearing representative affirmed
the denial of an additional schedule award.

1

Appellant was recovering from an employment-related left ankle sprain on February 24, 1989 (OWCP File No.
0301406230) when he filed his claim for bilateral plantar fasciitis. Other preexisting injuries include a right leg and
ankle fracture in December 1990, a left ankle sprain in February 1993 and a right ankle sprain in August 1993.
Appellant also has congenital subtalar joint coalition.
2

Dr. Didizian reported no range of motion measurements for the hips.

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.3 It is
an accepted principle of workers’ compensation law that when the primary injury is shown to
have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent,
intervening cause attributable to the employee’s own intentional conduct.4
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.5 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.6 When the Office secures an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and the
opinion from the specialist requires clarification or elaboration, the Office has the responsibility to
secure a supplemental report from the specialist for the purpose of correcting a defect in the
original report.7
ANALYSIS
The opinion of Dr. Didizian, the impartial medical specialist, requires clarification and
elaboration on the issue of consequential injury. He limited his discussion to two sentences. It is
unclear whether Dr. Didizian means that there is no scientific literature to support the development
of knee, hip or back pathology as a consequence of plantar fasciitis or ankle sprain, or whether he
is simply unaware of such literature and remains open to the possibility. Regardless, he did not
support his opinion with medical rationale sufficient to resolve the issue. Dr. Didizian reported
that appellant’s gait pattern was alternating with all three stages of gait analysis. He did not fully
explain whether the accepted ankle and foot injuries caused this alternating gait pattern, whether
an alternating gait pattern can physiologically cause a consequential injury to the knees, hips or
low back, and if so, whether appellant in fact developed any such consequential injury. The
Board finds that Dr. Didizian’s report is not well rationalized. Appellant may be entitled to
compensation for any knee, hip or low back injury that is consequential to his accepted
employment injuries. The impartial medical specialist must therefore provide a well-reasoned
opinion to resolve this issue.

3

5 U.S.C. § 8102(a).

4

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

5

5 U.S.C. § 8123(a).

6

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

7

Nathan L. Harrell, 41 ECAB 402 (1990).

3

The Board will set aside the Office’s December 27, 2006 and July 5, 2007 decisions and
remand the case for a supplemental report from the impartial medical specialist. Following such
further development of the evidence as may be necessary, the Office shall issue an appropriate
final decision on the issues of consequential injury and additional impairment.
CONCLUSION
The Board finds that this case is not in posture for decision. The medical evidence
requires further development.
ORDER
IT IS HEREBY ORDERED THAT the July 5, 2007 and December 27, 2006 decisions
of the Office of Workers’ Compensation Programs are set aside. The case is remanded for
further action consistent with this opinion.
Issued: May 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

4


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

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

Docket No. 09-50
Issued: March 6, 2009

Case Submitted on the Record

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

JURISDICTION
On October 6, 2008 appellant filed a timely appeal from the November 13, 2007 and
January 3, 2008 merit decisions of the Office of Workers’ Compensation Programs, denying his
claim for fact of injury, and a February 7, 2008 nonmerit decision, denying his request for
reconsideration of the merits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant established that he sustained a left shoulder, left
arm and neck injury in the performance of duty; and (2) whether the Office properly refused to
reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 20, 2007 appellant, then a 40-year-old postal clerk, filed a traumatic injury
claim (Form CA-1) alleging that, on September 17, 2007, while breaking down flats, he
experienced severe left shoulder, left arm and neck pain and loss of strength in his left arm. He

claimed the pain felt like a strained muscle. Appellant stopped work on September 19, 2007 and
did not return.
In a letter dated October 12, 2007, the Office notified appellant of the deficiencies in his
claim and requested additional information.
Appellant subsequently submitted handwritten medical notes dated September 18 and
October 3, 2007 with an illegible signature, an October 19, 2007 medical report signed by a
nurse and an October 3, 2007 x-ray report diagnosing C4-5 disc space narrowing in the cervical
spine. The September 18, 2007 medical note diagnosed neuritis or muscle spasm and strain,
indicating that the injury was related to lifting heavy bundles at work and pushing cages.
By letter dated October 1, 2007, the employing establishment controverted appellant’s
claim, contending that he did not notify management of an injury on September 17, 2007. The
employing establishment further stated that he showed up for work on September 18, 2007,
however he left early.
On October 2, 2007 appellant contacted the employing establishment by telephone. In a
handwritten telephone message, he was recorded as stating that he first noticed pain on
September 17, 2007 while sorting mail. Appellant worked until September 19, 2007, when he
woke up and could barely move his left arm.
In a decision dated November 13, 2007, the Office denied appellant’s claim on the
grounds that he did not establish that the alleged incident occurred at the time, place and in the
manner alleged.
On December 7, 2007 appellant filed a request for reconsideration. On November 28,
2007 he alleged that he was unable to return to work due to numbness running from the left side
of his neck down to his left arm. Appellant also provided two prescriptions for physical therapy
dated September 19 and October 22, 2007 and physical therapy progress notes dated
September 27 through November 28, 2007.
By decision dated January 3, 2008, the Office denied modification of the November 13,
2007 decision, finding that appellant did not submit factual or medical evidence sufficient to
remedy the defects in his claim.
In a November 26, 2007 medical report, a Dr. Lon Baratz stated that on September 19,
2007 appellant presented with a two-week history of left neck stiffness radiating into his left
shoulder and left arm and associated weakness in the left arm with occasional numbness and
tingling. Physical examination revealed initial tenderness in the left, mid-back and trapezius
muscles and associated tingling of the left arm with head movement. Dr. Baratz noted that
appellant remained totally disabled from his job since September 19, 2007 and opined that his
injury was a direct result of lifting heavy bundles of magazines and pushing and pulling cages
filled with magazines and mail at work.
On January 22, 2008 appellant requested reconsideration. He submitted a duplicate copy
of the October 3, 2007 x-ray report and a series of handwritten medical notes with an illegible
signature dated September 18 through December 11, 2007.
Appellant also provided a
2

November 26, 2007 certification of health care provider signed by Dr. Baratz, who indicated that
appellant sustained a serious health condition. Dr. Baratz stated that in September 2007
appellant began experiencing left neck and upper back pain with numbness and weakness of the
left arm, which interfered with his ability to function at work for approximately three to four
months.
By decision dated February 7, 2008, the Office denied further merit review on the
grounds that appellant did not indicate the basis for his reconsideration request and that the
evidence was submitted prior to his request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his or her claim by the weight of the
reliable, probative and substantial evidence,2 including that he is an “employee” within the
meaning of the Act3 and that a claim was filed within the applicable time limitation.4 The
employee must also establish that he sustained an injury in the performance of duty as alleged
and that his disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action.8 An employee has not met his or her burden of proof in establishing the occurrence of
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

M.H., supra note 3; George W. Glavis, 5 ECAB 363, 365 (1953).

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an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.9 Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.10 However, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS -- ISSUE 1
The issue is whether appellant established that he sustained a neck and left shoulder and
arm injury on September 17, 2007 while breaking down flats at work. In the November 13, 2007
and January 3, 2008 decisions, the Office found that appellant did not establish that the incident
occurred at the time, place and in the manner alleged.
Appellant alleged that on September 17, 2007 he experienced left shoulder, left arm and
neck pain, similar to that of a muscle strain, while breaking down flats at work. The employing
establishment noted that he did attend work the next day, however he left early. Medical records
support that appellant sought medical treatment the day after his injury, September 18, 2007,
presenting left shoulder pain, left arm and neck pain related to his employment at the employing
establishment, including lifting bundles of magazines and pushing and pulling cages. Appellant
timely notified the employing establishment of his injury and filed a claim on September 20,
2007, only three days after the incident.
The Board finds that the record does not contain inconsistencies such as to cast serious
doubt on the validity of appellant’s claim. Appellant only worked one day after the incident, at
which time he left early and did not return. He gave timely notification of his injury to the
employing establishment, filing his claim within three days of the incident. Further, appellant
sought contemporaneous medical treatment the day after the alleged incident and the medical
record generally support’s his claim that he injured his left shoulder, arm and neck at work.12
The Board finds that the factual evidence supports that the September 17, 2007 incident
occurred as alleged. However, the medical evidence is insufficient to establish that appellant
sustained an injury related to the accepted incident.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
9

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Gus Mavroudis, 9 ECAB 31, 33 (1956).

10

M.H., supra note 3; John D. Shreve, 6 ECAB 718, 719 (1954).

11

S.P., supra note 9; Wanda F. Davenport, 32 ECAB 552, 556 (1981).

12

Cf. M.H., supra note 3, (where the Board accepted that appellant established that the incident occurred as
alleged, despite the fact that she neglected to respond to the Office’s initial development letter requesting
information as to the circumstances of the alleged incident. Here, appellant sought medical attention within two
days, did not continue to work after the incident, filed her claim within five days and the record did not contain any
inconsistencies as to the factual circumstances of the incident.).

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opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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 the specific employment factors identified by the employee.13
The only medical evidence of record addressing the cause of appellant’s injury is a
handwritten medical note dated September 18, 2007, with an illegible signature. A report may
not be considered probative medical evidence unless it can be established that the person
completing the report is a physician as defined in 5 U.S.C. § 8101(2).14 Thus, the Board finds
that this note is insufficient to establish causation as there is no indication that the note was
completed by a physician.
The Board finds that the factual evidence was sufficient to establish that the
September 17, 2007 incident occurred as alleged. However, the medical evidence fails to
establish that appellant sustained a left shoulder, left arm or neck injury causally related to the
accepted incident.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act15 does not entitle a
claimant to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.16 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).17
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,18 its 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.19 To be entitled to a merit
13

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
14

5 U.S.C. § 8101(2) defines physicians as surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. See Merton J.
Sills, 39 ECAB 572 (1988).
15

5 U.S.C. §§ 8101-8193.

16

Id. at § 8128(a).

17

Annette Louise, 54 ECAB 783, 789-90 (2003).

18

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
19

20 C.F.R. § 10.606(b)(2).

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review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.20 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.21
ANALYSIS -- ISSUE 2
The issue is whether the Office properly denied further merit review of appellant’s claim.
The Board finds that the Office improperly denied merit review.
Subsequent to the last merit decision on January 3, 2008, appellant submitted a
November 26, 2007 medical report signed by Dr. Baratz who described the history and treatment
for appellant’s neck and left shoulder and arm injury, opining that his condition was a direct
result of lifting heavy bundles of magazines and pushing and pulling cages filled with magazines
and mail at work. Appellant also submitted a November 26, 2007 certification of healthcare
provider, signed by Dr. Baratz, who stated that appellant sustained a neck and back injury,
interfering with his ability to work. The Board finds that these documents constitute new
evidence, pertinent to the issue of whether appellant sustained an injury in the performance of
duty, and entitling him for further merit review. Accordingly, the Office should have reviewed
appellant’s case on the merits and discussed this relevant and pertinent new evidence.22
CONCLUSION
The Board finds that appellant failed to establish that he sustained a left shoulder, left arm
and neck injury in the performance of duty. While the evidence is sufficient to establish that the
September 17, 2007 incident occurred as alleged, no physician has provided a well-reasoned
explanation of how this incident caused or contributed to an injury. Further, the Board finds that
the Office improperly refused to reopen appellant’s claim for further review of the merits
pursuant to 5 U.S.C. § 8128(a).

20

Id. at § 10.607(a).

21

Id. at § 10.608(b).

22

See 5 U.S.C. § 8128(a). See also Bill B. Scoles, 57 ECAB 258 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the January 3, 2008 and November 13, 2007 merit
decisions of the Office of Workers’ Compensation Programs are affirmed, as modified. Further,
a February 7, 2008 decision of the Office is set aside. The case is remanded for further
consideration consistent with this opinion.
Issued: March 6, 2009
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 15-1474
Issued: March 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 29, 2015 appellant filed a timely appeal from a June 4, 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 has met his burden to proof to establish binaural hearing
loss causally related to his federal employment.
On appeal appellant contends that his hearing has consistently declined as a result of his
exposure to noise from various types of equipment while working at the employing
establishment for 31 years.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 22, 2014 appellant, then a 63-year-old electrician leader, filed an
occupational disease claim (Form CA-2) alleging that on December 16, 2014 he first became
aware of his bilateral hearing loss and first realized that his condition was caused or aggravated
by his exposure to high noises, motors, and pumps at work.
By letter dated January 8, 2015, OWCP informed appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit factual evidence in support of
his claim. OWCP also requested that the employing establishment respond to appellant’s
allegations and provide noise survey reports for each site where he worked, the sources and
period of noise exposure for each location, whether he wore ear protection, and copies of all
medical examinations pertaining to hearing or ear problems, including preemployment
examinations and audiograms.
In a January 27, 2015 letter, appellant provided his employment history which reflected
noise exposure from 1971 to 1980 during his military service and work at a private ironworks
company. He stated that he was exposed to noise from 1984 to the present at the employing
establishment. Appellant did not have any previous ear or hearing problems and had no hobbies
that exposed him to loud noise.
Appellant submitted audiograms performed by the employing establishment as part of a
hearing conservation program dated September 21, 1984 through December 23, 2013. He also
submitted employment records, which included a description of his electrician leader position.
By letter dated April 30, 2015, OWCP informed appellant of his referral for a second
opinion evaluation with a physician who specialized in otolaryngology, along with a statement of
accepted facts, a set of questions, and the medical record. Appellant was instructed to telephone
MES Solutions to confirm the appointment.
In a letter dated May 4, 2015, OWCP scheduled a second opinion evaluation for appellant
with Dr. Thomas J. Mueller, a Board-certified otolaryngologist, for May 27, 2015 at 10:30 a.m.
In his May 27, 2015 medical report, Dr. Mueller noted finding on examination. Appellant’s
chief complaint was bilateral hearing loss that had occurred gradually over the years.
Dr. Mueller provided appellant’s history of working as an electrician for 30 years around ships,
namely pump motors and compressed air pumps and that he did wear hearing protection.
Appellant claims tinnitus with questionable impact, but denied vertigo. Dr. Mueller insured that
it had been greater than 16 hours since his last noise exposure. He reported that appellant’s
ability to hear during the interview was good. An inspection of the ear canals showed scant
cerumen and no tympanic membrane retractions, granulations, debris pockets, or middle ear
fluid. Tuning fork tests were Weber midline and a Rinne test was positive bilaterally. A
May 27, 2015 audiogram, with an attached calibration certificate, showed hearing levels at 500,
1,000, 2,000, and 3,000 hertz respectively of 10, 10, 5, and 20 decibels (dB) on the right and 15,
15, 15, and 50 dB on the left. Dr. Mueller found that the audiometric testing showed a
sensorineural hearing loss, left side slightly greater than the right side. He stated that appellant
had no hearing loss at the beginning of his federal employment, but now there was evidence of
significant high frequency sensorineural hearing loss. Dr. Mueller stated that the workplace

2

exposure, as described by appellant, was insufficient intensity and duration to have caused or
contributed to the hearing loss in question. His hearing loss could represent an age-related
change. Appellant had hypertension, but no diabetes, local infection, toxic drug use, or surgery
relating to the hearing loss in question. Dr. Mueller opined that appellant’s sensorineural hearing
loss was not due to his federal civilian employment. He recommended hearing aids to help with
the rehabilitation of hearing loss, which was impactful, and tinnitus. Dr. Mueller stated,
however, that the recommended hearing aids were not due to occupational noise exposure.
In a June 4, 2015 decision, OWCP denied appellant’s hearing loss claim. It found that
Dr. Mueller’s opinion constituted the weight of the evidence and established that he did not have
hearing loss due to his accepted employment-related noise exposure.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee 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 causally related to the employment factors identified by the employee.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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 the specific employment factors
identified by the employee.3
OWCP procedures set forth requirements for the medical evidence used in evaluating
hearing loss. These include that the employee undergo both audiometric and otologic
examination; that the audiometric testing be performed by an appropriately certified audiologist;
that the otologic examination be performed by an otolaryngologist certified or eligible for
certification by the American Academy of Otolaryngology and that the audiometric and otologic
examination be performed by different individuals as a method of evaluating the reliability of the
findings. Further, all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the America Speech and Hearing Association; that the
audiometric test results include both bone conduction and pure tone air conduction thresholds,
speech reception thresholds and monaural discrimination scores. The otolaryngologist’s report is
to include: date and hour of examination; date and hour of employee’s last exposure to loud
noise; a rationalized medical opinion regarding the relation of the hearing loss to the
employment-related noise exposure, and a statement of the reliability of the tests.4 The physician
2

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

See I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

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should be instructed to conduct additional tests or retests in those cases where the initial tests
were inadequate or there is reason to believe that the claimant is malingering.5
ANALYSIS
The Board finds that appellant has not established binaural hearing loss causally related
to his federal employment noise exposure.
In support of his claim, appellant submitted audiograms for the period September 21,
1984 to December 23, 2013 obtained as part of the hearing conservation program at work. None
of the audiograms were accompanied by a physician’s opinion addressing how appellant’s
employment-related noise exposure caused or aggravated any hearing loss.6 This does not
constitute probative medical opinion evidence and is insufficient to meet his burden of proof.7
Following the submission of evidence from appellant, OWCP referred appellant for an
audiological and otologic evaluation by Dr. Mueller. In a May 27, 2015 report, Dr. Mueller
provided physical examination and audiometric findings that indicated that appellant had
sensorineural hearing loss that was slightly greater on the left than on the right and tinnitus.
However, he concluded that his hearing loss and need for hearing aids were not due to workrelated noise exposure. Dr. Mueller explained that the workplace exposure, as described by
appellant, was not of sufficient intensity and duration to have caused or contributed to his
diagnosed hearing loss. He further explained that his hearing loss could represent an age-related
change. Dr. Mueller provided a thorough examination and a reasoned opinion explaining his
findings on examination and testing that any hearing loss was not due to the noise to which
appellant was exposed at his employment.
There is no current medical evidence of record supporting that appellant’s hearing loss is
employment related. The Board finds that Dr. Mueller’s report represents the weight of the
medical evidence.8 Appellant has failed to establish that his binaural hearing loss was due to his
federal employment.
On appeal appellant contends that his hearing has consistently declined as a result of his
exposure to noise from various types of equipment while working at the employing
establishment for 31 years. As previously stated, however, the weight of the medical evidence
fails to establish that his hearing loss was causally related to his accepted employment-related
noise exposure. The Board finds, therefore, that appellant has not established that he has an
employment-related hearing loss.

5

Luis M. Villanueva, 54 ECAB 666 (2003). See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.8(a) (September 1995).
6

See Leon Thomas, 52 ECAB 202 (2001) (an audiologist is not as a “physician” under FECA).

7

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
8

See John D. Jackson, 55 ECAB 465 (2004).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden to proof to establish binaural
hearing loss causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

5