United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, ABILENE MAIL
PROCESSING CENTER, Abilene, TX, Employer
__________________________________________

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

Docket No. 15-1620
Issued: October 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2015 appellant filed a timely appeal from a January 23, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from December 10, 2014, the most recent OWCP merit decision, to the filing of the
current appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3,2 the Board lacks jurisdiction to review the merits of appellant’s claim.3

1

5 U.S.C. §§ 8101-8193.

2

Appellant submitted additional evidence with his appeal to the Board. The Board cannot consider this evidence
as its review is limited to evident which was before OWCP at the time of its merit decision. 20 C.F.R. § 501.2(c)(1);
P.W., Docket No. 12-1262 (issued December 5, 2012).
3

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from January 23, 2015, the date of OWCP’s last decision, was
July 22, 2015. Since using July 23, 2015, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is July 18, 2015 rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for a merit review.
On appeal he asserts that he could not submit his request in a timely manner because he
could not obtain documentation from his physician. He further asserts that the medical evidence
of record establishes his claim.
FACTUAL HISTORY
On September 30, 2014 appellant, then a 38-year-old postal support employee, filed a
traumatic injury claim alleging that on September 19, 2014 he felt a pop in his right forearm as
he was gripping and lifting a package out of a hamper. He did not stop work. In an attached
statement, appellant related that his arm continued to hurt daily, with numbness and burning.
The employing establishment controverted the claim, stating that the claimed injury did
not hinder appellant’s work from September 19 until October 1, 2014. Appellant was offered
and accepted modified duty on October 15, 2014. By letter dated October 24, 2014, OWCP
informed him of the evidence needed to support his claim.
In support of his claim, appellant submitted October 1, 2014 reports from Dr. Lynn M.
Robinson, a Board-certified internist, who reported a history that appellant injured his right hand
at work on September 19, 2014 when he lifted a box. Dr. Robinson described physical
examination findings of decreased sensation of the fingertips of his right hand, diagnosed ulnar
neuropathy at the elbow, and advised that he could work modified duty.
In reports dated October 9 to December 1, 2014, Dr. Richard D. Trifilo, Board-certified
in family and occupational medicine, described appellant’s complaints of burning pain, tingling,
and numbness in his right arm and hand since lifting a box at work on September 19, 2014.
Examination demonstrated positive Phalen’s and Tinel’s signs on the right. Dr. Trifilo
diagnosed neuritis of the right median nerve with sprain/strain and provided restrictions to
appellant’s physical activity.
In a December 10, 2014 decision, OWCP denied the claim, finding the medical evidence
insufficient to establish that the work incident of September 19, 2014 caused and/or aggravated
his condition.
By letter dated January 7, 2015 and postmarked January 10, 2015, appellant requested a
review of the written record.
By decision dated January 23, 2015, an OWCP hearing representative denied appellant’s
request for a review of the written record as untimely filed. OWCP considered the request and
determined that his case could equally be addressed by requesting reconsideration with OWCP
and submitting new evidence.
LEGAL PRECEDENT
A claimant dissatisfied with a decision of OWCP shall be afforded an opportunity for an
oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
2

hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought. If the request is not made within 30 days, or if
it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.4 The Board has held that OWCP, in its broad discretionary
authority in the administration of FECA has the power to hold hearings in certain circumstances
where no legal provision was made for such hearings and that OWCP must exercise this
discretionary authority in deciding whether to grant a hearing.5
ANALYSIS
As noted above, a request for a review of the written record must be made within 30 days
after the date of the issuance of OWCP’s final decision.6 In this case, appellant requested a
review of the written record before OWCP’s Branch of Hearings and Review on a form dated
January 7, 2015 and postmarked January 10, 2015. Under OWCP’s regulations, the timeliness of
a hearing request, or request for a review of the written record, is based on the date of the
postmark.7
Thirty days following the December 10, 2014 decision was Thursday,
January 9, 2015. Appellant’s request was not postmarked until January 10, 2015. The request
was, therefore, untimely.
OWCP also has the discretionary power to grant a request for a hearing or review of the
written record when a claimant is not entitled to such as a matter of right. In the January 23,
2015 decision, it properly exercised its discretion by stating that it had considered the matter in
relation to the issue involved and had denied appellant’s request on the basis that the issue could
be addressed through a reconsideration application. The Board has held that, 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 deduction from established facts.8 In the present
case, the evidence of record does not indicate that OWCP committed any act in connection with
its denial of appellant’s request for a review of the written record that could be found to be an
abuse of discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record.9
4

Claudio Vazquez, 52 ECAB 496 (2001).

5

Marilyn F. Wilson, 52 ECAB 347 (2001).

6

Supra note 4.

7

20 C.F.R. § 10.616(a) (the hearing request must be sent within 30 days, as determined by postmark or other
carrier’s date marking, of the date of the decision for which a hearing is sought.
8

See Mary Poller, 55 ECAB 483 (2004).

9

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one
year of its December 10, 2014 merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.

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ORDER
IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 12-792
Issued: August 15, 2012

Case Submitted on the Record

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

JURISDICTION
On February 27, 2012 appellant filed a timely appeal from a January 26, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained more than a 31 percent impairment of the left
upper extremity, for which he received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. By decision and order issued
September 1, 2010,2 the Board set aside OWCP’s September 25, 2009 schedule award
1

5 U.S.C. § 8101 et seq.

2

Docket No. 10-395 (issued September 1, 2010).

determination and remanded the case for further development regarding the percentage of
permanent impairment of the left arm due to the accepted carpal tunnel syndrome. OWCP
previously granted appellant a schedule award for a 31 percent left arm impairment. The law
and the facts of the case as set forth in the Board’s prior decision are incorporated by reference.
In a September 30, 2010 letter, OWCP advised appellant to submit an impairment rating
from his attending physician according to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) then in effect.
Appellant submitted the November 24, 2010 and March 28, 2011 chart notes from Dr. David A.
Suber, an attending Board-certified neurologist, noting continued left carpal tunnel syndrome
with minimal weakness. Dr. Suber obtained an electromyogram (EMG) on December 20, 2010
demonstrating left carpal tunnel syndrome unchanged since an April 2008 study.3
In a December 22, 2010 letter, OWCP requested an impairment rating directly from
Dr. Suber. As Dr. Suber did not provide the requested report, on February 26, 2011, OWCP
referred appellant, the medical record and a statement of accepted facts to Dr. Ronald M.
Lampert, a Board-certified orthopedic surgeon, for a second opinion impairment rating.
Dr. Lampert submitted a March 11, 2011 report reviewing the medical record and statement of
accepted facts. On examination, he found negative Tinel’s and Phalen’s signs, no atrophy of the
left thenar eminence, full range of left wrist motion and good grip strength. Dr. Lampert stated
that, according to the sixth edition of the A.M.A., Guides, he required an updated EMG study to
determine the percentage of permanent impairment. OWCP authorized April 12, 2011 EMG and
nerve conduction velocity (NCV) studies, showing moderate left median neuropathy at the wrist,
correlating with clinical findings of left carpal tunnel syndrome.
In a May 2, 2011 report, Dr. Lampert opined that appellant had reached maximum
medical improvement as of March 11, 2011. He opined that, according to Table 15-23 of the
A.M.A., Guides,4 appellant had two percent impairment of the left upper extremity due to a class
1 diagnosis-based impairment (CDX) for carpal tunnel syndrome with mild motor and sensory
involvement.
In an August 18, 2011 report, an OWCP medical adviser reviewed Dr. Lampert’s
impairment rating. While Dr. Lampert used the appropriate methodology for rating carpal tunnel
syndrome according to the A.M.A., Guides, the default rating for grade 1 carpal tunnel syndrome
was only one percent as there was no evidence of any functional impairment.
By decision dated January 26, 2012, OWCP denied appellant’s claim for an augmented
schedule award on the grounds that the medical evidence did not establish that he sustained more
than the 31 percent impairment of the left upper extremity for which he received prior schedule
awards.

3

Dr. Suber submitted chart notes from June 28 to December 28, 2011 finding appellant’s condition unchanged.

4

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”

2

LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the 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).9
ANALYSIS
OWCP accepted that appellant sustained left carpal tunnel syndrome and awarded him a
total 31 percent impairment to the left arm. Following the prior appeal, it obtained a second
opinion from Dr. Lampert, a Board-certified orthopedic surgeon, who opined on May 2, 2011
that appellant had two percent impairment of the left upper extremity due to mild carpal tunnel
syndrome. An OWCP medical adviser noted that, while Dr. Lampert used the correct elements
of the A.M.A., Guides, appellant had only one percent impairment of the left arm as there was no
evidence of functional impairment. On January 26, 2011 OWCP denied appellant’s claim for an
additional schedule award as the medical evidence did not demonstrate a greater percentage of
impairment to the left arm than the 31 percent previously awarded.
The Board finds that OWCP properly relied on Dr. Lampert’s clinical findings, as
interpreted by OWCP’s medical adviser, in finding that appellant had one percent impairment of
the left upper extremity. Dr. Lampert based his opinion on a thorough clinical examination, a
review of the medical record and a statement of accepted facts. OWCP’s medical adviser
applied the correct methodology of the A.M.A., Guides in determining the one percent left upper
extremity impairment. Therefore, OWCP’s January 26, 2011 decision finding that appellant had
5

5 U.S.C. § 8107.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
9

A.M.A., Guides 494-531 (6th ed., 2008).

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not sustained an additional percentage of permanent impairment beyond the 31 percent
previously awarded was proper under the law and facts of this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a 31
percent impairment of the left upper extremity, for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 26, 2012 is affirmed.
Issued: August 15, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Honolulu, HI, Employer
__________________________________________

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

Docket No. 21-0257
Issued: February 22, 2022

Case Submitted on the Record

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

JURISDICTION
On December 11, 2020 appellant filed a timely appeal from an August 13, 2020 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 13, 2020 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 additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for the period commencing January 5, 2020, causally related to his accepted November 24, 2019
employment injury.
FACTUAL HISTORY
On November 25, 2019 appellant, then a 40-year-old transportation security screener, filed
a traumatic injury claim (Form CA-1) alleging that on November 24, 2019 he injured his lower
right arm and lower back as a result of repetitive standing, bending, turning, twisting, lifting bins,
and pushing and pulling a cart more than seven hours per day while in the performance of duty.
OWCP accepted appellant’s claim for lumbar sprain and right forearm strain/sprain.
On January 29 and February 1, 2020 appellant filed claims for compensation (Form CA-7)
for disability from work for the period January 5 through February 1, 2020. He indicated that he
had stopped work on November 26, 2019.
In support of his claims, appellant submitted medical reports from Dr. Mankwan T. Wong,
an attending Board-certified internist. In a duty status report (Form CA-17) and an attending
physician’s report (Form CA-20) dated January 23, 2020, Dr. Wong noted appellant’s history of
injury on November 24, 2019 and diagnosed the conditions of right forearm and lumbar sprain. In
the Form CA-17 report, he indicated that appellant’s diagnosed conditions were due to injury,
advised that appellant could not resume work, and provided limited-duty work restrictions. In the
Form CA-20 report, Dr. Wong checked a box marked “Yes,” indicating that the diagnosed
conditions were caused or aggravated by the described employment activity. He advised that
appellant was totally disabled from work during the period January 25 through February 6, 2020.
In certificates to return to work dated December 23, 2019 and January 23, 2020, Dr. Wong
requested that appellant be excused from work during the period December 24, 2019 through
January 10, 2020 and January 25 through February 6, 2020 due to a work-related injury.
Dr. Wong, in progress notes dated December 23, 2019 and January 10, 2020, repeated
appellant’s history of injury and his prior diagnoses of the conditions of right forearm and lumbar
sprain.
In a development letter dated February 7, 2020, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim for wage-loss compensation. It advised
him of the type of medical evidence necessary to establish his claim and afforded him 30 days to
respond.
OWCP received additional medical reports from Dr. Wong. In a November 26, 2019
progress note and February 6, 2020 prescription, Dr. Wong again diagnosed lumbar and right
forearm conditions. In the February 6, 2020 prescription, he ordered physical therapy to treat
appellant’s diagnosed conditions.
Appellant filed additional CA-7 forms claiming compensation for disability from work for
the period February 2 through March 14, 2020.
2

In a February 10, 2020 lumbar spine magnetic resonance imaging (MRI) scan report,
Dr. Robert T. Duong, a Board-certified diagnostic radiologist, provided an impression of
significant degenerative spondylosis at the L4-L5 level, which was worse than seen on a July 24,
2014 MRI scan. He also provided an impression of moderate spinal stenosis, with anteroposterior
(AP) diameter of the thecal sac measuring eight millimeters (mm) at the L4-L5 level. Dr. Duong
noted that a 2014 lumbar spine MRI scan revealed that the AP diameter of the thecal sac measured
10 mm. He related that his current examination demonstrated mild left neural foraminal
narrowing, which had developed since appellant’s prior examination.
In a February 10, 2020 right forearm MRI scan report, Dr. Andrew V. Kayes, a Boardcertified diagnostic radiologist, provided impressions of an equivocal mild strain pattern of the
flexor forearm musculature and mild degenerative change in the radiocarpal joint. He noted that
the remainder of the MRI scan results were within normal limits.
Appellant also submitted additional medical evidence from Dr. Wong. In a February 6,
2020 progress note, Dr. Wong continued to diagnose lumbar and right forearm conditions.
In a March 5, 2020 letter, Dr. Wong noted that a February 10, 2020 lumbar spine MRI scan
revealed significant progression of lumbar spine spondylosis and a right forearm MRI scan of even
date demonstrated tendinitis. He further noted that an accompanying study showed that
occupations such as, appellant’s, involved frequent lifting and forward bending, which increased
lumbar spondylosis and caused chronic pain. Dr. Wong concluded that appellant required
continuing physical and massage therapy treatment.
Dr. Wong, in certificates to return to work dated February 20 and March 5, 2020, requested
that appellant be excused from work for the period February 21 through April 6, 2020 due to a
work-related injury.
In a Form CA-20 and Form CA-17 dated February 20, 2020, and progress notes dated
February 20 and March 5, 2020, Dr. Wong continued to diagnose the accepted lumbar and right
forearm conditions. In the February 20, 2020 Form CA-20, he again checked a box marked “Yes,”
indicating that the diagnosed conditions were caused or aggravated by appellant’s November 24,
2019 employment injury. Additionally, Dr. Wong advised that appellant was temporarily totally
disabled from work for the period November 26, 2019 through March 5, 2020. In the February 20,
2020 Form CA-17 report, he restated his prior opinion that appellant’s diagnosed conditions were
due to injury, continued to advise that appellant could not resume work, and provided his limitedduty work restrictions.
By decision dated March 26, 2020, OWCP denied appellant’s claims for compensation for
wage-loss compensation for the period commencing January 5, 2020. It found that the medical
evidence of record was insufficient to establish disability during the claimed period due to the
accepted employment injury.
Appellant continued to file CA-7 forms claiming compensation for disability from work
for the period March 15 through April 11, 2020. He continued to submit additional medical
evidence from Dr. Wong. In progress notes dated December 9, 2019 and April 6, 2020 and a

3

prescription dated April 3, 2020, Dr. Wong continued to diagnose the accepted lumbar and right
forearm conditions.
Dr. Wong, in an April 6, 2020 certificate to return to work, requested that appellant be
excused from work for the period April 7 through May 7, 2020 due to a work-related injury.
On April 18, 2020 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review regarding the March 26, 2020 decision. The hearing
was held on July 9, 2020.
Appellant subsequently filed additional CA-7 forms claiming compensation for disability
from work for the period April 12 through August 1, 2020.
In a June 4, 2020 physician review report, Dr. Tifani Gleeson, Board-certified in
occupational medicine, reviewed appellant’s medical record on behalf of the employing
establishment. She noted the accepted conditions of lumbar and right forearm sprain. Dr. Gleeson
further noted that appellant had been off work since November 26, 2019. She indicated that he
was six months post injury with minimal care, no planned interventions, and no indication of
progress. Dr. Gleeson, therefore, recommended a second opinion examination to assess the extent
of appellant’s work-related disability. She related that, if such an examination could not be
promptly obtained, then review by an OWCP district medical adviser (DMA) would be indicated.
OWCP continued to receive medical reports from Dr. Wong. In certificates to return to
work dated May 6, June 8, and July 8, 2020, Dr. Wong requested that appellant be excused from
work for the period May 8 through August 10, 2020 due to a work-related injury. In progress
notes of even dates and dated July 3, 2020, Dr. Wong continued to diagnose the accepted medical
conditions.
Dr. Wong, in a July 5, 2020 letter, maintained that appellant was entitled to work-related
compensation. He explained that he had not reached maximum medical improvement and he had
taken time off work and medications, but had slow continuous improvement in his low back and
right forearm pain over the past several months. Dr. Wong reiterated his prior finding that
appellant’s strenuous job duties of frequent lifting and bending put him at high risk of exacerbating
his injuries if he was forced to return to work when he was not ready. Additionally, he restated
his request for the expansion of the acceptance of appellant’s claim to include lumbar spondylosis.
By decision dated August 13, 2020, an OWCP hearing representative affirmed the
March 26, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which

3

Supra note 1.

4

compensation is claimed is causally related to the employment injury.4 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.7 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.8
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.9 The opinion of the physician 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.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period commencing January 5, 2020, causally related to his accepted November 24,
2019 employment injury.
In support of his claims for compensation, appellant submitted a series of reports from
Dr. Wong. In Form CA-17 reports dated January 23 and February 20, 2020, Dr. Wong placed
appellant off work due to a work-related injury. Although Dr. Wong opined that appellant
developed employment-related disability, his opinion is of limited probative value because he did
not explain, with rationale, how or why appellant was unable to perform his regular work during
the claimed period of disability due to the effects of his accepted conditions of lumbar sprain and
right forearm strain/sprain. The Board has held that a report is of limited probative value regarding
4

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
5

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
6

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

7

Id. at § 10.5(f); see e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

8

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

9

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

10

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

5

causal relationship if it does not contain medical rationale explaining how a given medical
condition/period of disability has an employment-related cause. 11 Therefore, Dr. Wong’s reports
are insufficient to establish appellant’s disability claim.
Likewise, while Dr. Wong’s certificates to return to work dated December 23, 2019
through July 8, 2020, placed appellant off work on intermittent dates during the period
November 26, 2019 through August 10, 2020 due to a work-related injury, he did not explain, with
rationale, how or why appellant was unable to perform his regular work during the claimed period
of disability due to the effects of his accepted conditions. Therefore, these reports are insufficient
to establish appellant’s disability claim. 12
In CA-20 form reports dated January 23 and February 20, 2020, Dr. Wong indicated by
checking a box marked “Yes” indicating that the diagnosed conditions were caused or aggravated
by the described employment activity. The Board has held that an opinion on causal relationship
with an affirmative check mark, without more by way of medical rationale, is insufficient to
establish the claim. 13 Consequently, appellant has not established his claim with the submission
of these form reports.
Dr. Wong’s March 5 and July 5, 2020 letters noted that appellant had been off work and
advised that if he returned to his regular work he would be required to engage in frequent lifting
and bending, which would exacerbate his diagnosed conditions of lumbar spine spondylosis and
right forearm tendinitis. He recommended that the acceptance of appellant’s claim should be
expanded to include lumbar spine spondylosis. However, Dr. Wong did not explain how the
accepted conditions were competent to cause disability during the claimed period. 14 Further, he
did not explain how and why the additional conditions were causally related to the accepted
employment injury. The Board notes that in his prior progress and form reports Dr. Wong had not
diagnosed lumbar spine spondylosis, but rather he related appellant’s diagnoses as lumbar sprain
and right forearm strain/sprain. Where an employee claims conditions not accepted or approved
by OWCP were due to an employment injury, appellant bears the burden of proof to establish that
the condition is causally related to the work injury. 15 A physician’s opinion on causal relationship
between a claimant’s employment injury and additional conditions or disability is not conclusive
simply because it is rendered by a physician. To be of probative value, the physician must provide
rationale for the opinion reached. Where no such rationale is present, the medical opinion is of

11

See S.S., Docket No. 21-0763 (issued November 12, 2021); A.G., Docket No. 21-0756 (issued October 18, 2021);
T.S., Docket No. 20-1229 (issued August 6, 2021).
12

Id.

13

A.A., Docket No. 21-0802 (issued December 27, 2021); C.S., Docket No. 18-1633 (issued December 30, 2019);
D.S., Docket No. 17-1566 (issued December 31, 2018); Gary J. Watling, 52 ECAB 278 (2001).
14

Id.

15

G.H., Docket No. 18-0288 (issued June 8, 2018); L.N., Docket No. 16-0137 (issued October 14, 2016); Jaja K.
Asaramo, 55 ECAB 200 (2004).

6

diminished probative value. 16 Moreover, medical limitations based solely on the fear of a possible
future injury are also insufficient to support payment of compensation. 17 For these reasons, the
Board finds that Dr. Wong’s letters are insufficient to establish the disability claim.
Dr. Wong’s progress notes dated November 26, 2019 through July 8, 2020 and
prescriptions dated February 6 and April 3, 2020 diagnosed the accepted conditions of lumbar
sprain and right forearm and lumbar strain/sprain. However, he offered no opinion regarding
appellant’s disability status during the period commencing January 5, 2020. The Board has held
that medical evidence that does not provide an opinion as to whether a period of disability is due
to an accepted employment condition is insufficient to meet a claimant’s burden of proof. 18
Therefore, these progress notes and prescriptions are insufficient to establish appellant’s disability
claim.
Appellant also submitted Dr. Gleeson’s June 4, 2020 report in which she noted the
accepted conditions of lumbar and right forearm sprain and that appellant had been off work since
November 26, 2019. Dr. Gleeson recommended a second opinion evaluation or review by a DMA
to determine the extent of his employment-related disability. She did not, however, offer an
opinion concerning appellant’s disability status during the period commencing January 5, 2020.
Thus, Dr. Gleeson’s report is of no probative value and are insufficient to establish appellant’s
disability claim. 19
The record also contains the February 10, 2020 lumbar spine and right forearm MRI scan
reports of Dr. Duong and Dr. Kayes. However, the Board has long held, however, that diagnostic
studies, standing alone, lack probative value as they do not address whether the employment injury
caused any of the diagnosed conditions or associated disability. 20 For this reason, the diagnostic
reports of record are insufficient to establish appellant’s disability claim.
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 21 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related total disability during the claimed period due to his
accepted employment conditions, the Board finds that he has not met his burden of proof to
establish his claim.

16

G.H., id.; L.N., id.

17

See B.L., Docket No. 20-1685 (issued May 25, 2021); V.G., Docket No. 18-0936 (issued February 6, 2019).

18
See B.M., Docket No. 20-0826 (issued May 10, 2021); Y.D., Docket No. 20-0097 (issued August 25, 2020); M.A.,
Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019); L.B., Docket No.
18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
19

Id.

20

See T.W., Docket No. 20-1669 (issued May 6, 2021); J.S., Docket No. 17-1039 (issued October 6, 2017).

21

Supra note 5.

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period commencing January 5, 2020, causally related to his accepted November 24,
2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION, RAIL
YARD, Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2121
Issued: March 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 17, 2013 appellant filed a timely appeal from the July 24, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he was injured in
the performance of duty on December 23, 2012, as alleged.
On appeal, appellant alleges that he was exposed to a chemical spill during his
employment and the employing establishment sent him to the hospital as a precautionary
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. However, the Board lacks jurisdiction to review such evidence
for the first time on appeal. See 20 C.F.R. § 501.2(c)(a); Sandra D. Pruitt, 57 ECAB 126 (2005).

measure. He noted that he could not know if he had any lasting injuries from his scratchy throat
and coughing until he was checked by a physician.
FACTUAL HISTORY
On December 25, 2012 appellant, then a 51-year-old Customs and Border Protection
officer, filed a claim for occupational disease alleging that on December 23, 2012 he was
exposed to Dipentene while working at the rail yard.
In support of his claim, appellant submitted a report by Dr. Michael Paul, a Boardcertified surgeon, who treated appellant in the emergency department at Port Huron Hospital on
December 23, 2012. The intake notes indicate that appellant was seen for exposure to Dipentene
for less than one minute and that appellant denied contact with skin. The notes indicate that
appellant complained of a slight scratchy sensation to his throat but denied an eye irritation.
Dr. Paul stated that appellant had chemical inhalation. He listed diagnosis of acute pharyngitis,
moderate elevation of systolic blood pressure and seasonal/environmental allergies. An x-ray
taken at the hospital was read by Dr. John J. Ference, a Board-certified radiologist, as showing
no acute process, findings suggestive of chronic obstructive pulmonary disease and asymmetric
sclerosis to the anterior margin the right first rib.
By letter dated April 1, 2013, OWCP asked appellant to submit further evidence,
including medical evidence, in support of his claim. In a handwritten response to the questions
on April 9, 2013, appellant indicated that he was exposed to Dipentene for approximately two
minutes at work and that he experienced a scratchy throat that is now better. He noted that he
has seasonal allergies.
On April 16, 2013 a representative from the employing establishment submitted
responses to OWCP questions and admitted that appellant was exposed to Dipentene fumes. He
noted that appellant was working in the office and a worker from the warehouse entered the
office and told the employees that a barrel of Dipentene had been pierced and that they should
get out of the building. The representative noted that appellant removed himself from the
building and moved upwind of the building and went to the hospital to be checked per fire
department personnel recommendation.
By decision dated July 24, 2013, OWCP denied appellant’s claim because the medical
evidence was not sufficient to establish that a medical condition was diagnosed in connection
with the claimed event or work factors.
LEGAL PRECEDENT
OWCP’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.3 An employee
seeking benefits under FECA has the burden of establishing the essential elements of his or her
3

20 C.F.R. § 10.5(e).

2

claim, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.9 Simple exposure to a workplace hazard does not constitute a
work-related injury entitling an employee to medical treatment under FECA.10

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

8

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

9

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

10

20 C.F.R. § 10.303(a); see also S.H., Docket No. 10-1952 (issued May 5, 2011).

3

ANALYSIS
Initially, the Board finds that, although appellant filed a claim for occupational disease,
this claim is actually a traumatic injury, as the specific incident occurred during a single workday
or shift.11 The employing establishment does not contest that appellant was exposed to
Dipentene on December 23, 2012. Accordingly, appellant submitted sufficient evidence to
establish an occupational exposure to Dipentene while in the course of his federal employment.
However, in order to meet his burden of proof, he must also submit sufficient evidence that the
accepted Dipentene exposure caused an injury. The Board finds, however, that appellant did not
submit such evidence.
In support of his claim, appellant submitted his treatment notes with regard to his visit to
the emergency department on December 23, 2012 wherein Dr. Paul diagnosed pharyngitis,
moderate elevation of systolic blood pressure and seasonal/environmental allergies. Dr. Ference
noted that appellant’s x-rays were suggestive of chronic obstructive pulmonary disease and
asymmetric sclerosis to the anterior margin of the right first rib. However, neither of these
physicians explained how these diagnoses were connected to appellant’s brief exposure to
Dipentene on December 23, 2012. As stated above, simple exposure to a workplace hazard does
not entitle an employee to medical treatment under FECA unless the employee has sustained an
identifiable injury or medical condition as a result of that exposure.12 In this case, the medical
record does not demonstrate that appellant sustained an injury or condition from briefly inhaling
Dipentene at work.13 Therefore, appellant has not met his burden of proof that this exposure
caused an injury. Accordingly, he has not established fact of injury and his claim was properly
denied.
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 that he was
injured in the performance of duty on December 23, 2012, as alleged.

11

20 C.F.R. § 10.5(15), (16) defines a traumatic injury as a wound or other injury caused by a specific event or
incident within a single workday or shift, whereas an occupational injury is defined as a condition produced in the
work environment over a period longer than a single workday or shift. As appellant’s exposure occurred only
during one work shift, it is being treated as a condition arising from a traumatic work incident within a single day.
See J.G., Docket No. 07-2371 (issued April 8, 2008).
12

20 C.F.R. § 10.303(a).

13

J.F., Docket No. 09-1061 (issued November 17, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2013 is affirmed.
Issued: March 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-1464
Issued: February 27, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 19, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 10, 2006 decision denying his claim for additional employmentrelated conditions. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he had
employment-related injuries other than the accepted left shoulder tendinitis and mild
degenerative meniscal disease of the right knee.
FACTUAL HISTORY
On October 12, 2001 appellant, then a 46-year-old clerk, filed an occupational disease
claim alleging that his work duties caused him to experience pain in his neck, back, left hip,
shoulders, elbows, right wrist, right knee, ankles and left foot. He did not stop work at the time
claim but began working in a light-duty position. The record reveals that appellant worked on a

mail sorting machine which required him to engage in extensive typing, lifting, carrying,
pushing, pulling, twisting, reaching and bending. The employing establishment indicated that he
was required to lift mail trays weighing up to 20 pounds.
The findings of October 25, 2001 electromyogram testing revealed mildly abnormal
results in the right triceps and right abductor of the fifth finger consistent with a C7-T1 root
finding. Magnetic resonance imaging (MRI) scan testing from late 2001 revealed mild disc
protrusions at multiple levels between C3 and C7, a mild disc bulge at L2-3, a right knee
meniscal tear and a subchondral cyst and edema in the anterior distal femur at the right knee.1
On January 3, 2002 nerve conduction studies of the extremities found a C6-7 radiculopathy and
an neurologic changes at the left peroneal/posterior tibial nerve. The medical evidence reveals
that appellant had polio since childhood which caused him to have a left leg atrophy.
On October 18, 2001 Dr. Fred Hafezi, an attending Board-certified orthopedic surgeon,
indicated that appellant developed accelerated degenerative changes, particularly in the low
cervical spine and the low back spine, due to working at the employing establishment. On
December 4, 2001 Dr. Hafezi stated that appellant had a L2-3 disc bulge, irritation of the L4-5
and L5-S1 annular ligaments, irritation of the L4-5 nerve fibers, a C3-4 discopathy and irritation
of the C4 and C7-8 nerve fibers. He posited that these conditions were caused by the repetitive
injury sustained at the employing establishment.
In a June 8, 2003 decision, the Office accepted that appellant sustained employmentrelated left shoulder tendinitis and mild degenerative meniscal disease of the right knee. The
Office paid appropriate compensation for periods of disability.
The Office referred appellant to Dr. William C. Boeck, Jr., a Board-certified orthopedic
surgeon, for additional evaluation of his employment-related conditions. On June 15, 2003
Dr. Boeck determined that appellant’s employment-related residuals were limited to his left
shoulder and right knee and found that his cervical and lumbar degenerative conditions were not
employment related.
The findings of July 18, 2003 nerve conduction studies suggested bilateral carpal tunnel
syndrome and possible neuropathy of the tarsal tunnels of the legs, primarily on the right. On
March 18, 2004 appellant underwent a partial medial meniscectomy, synovectomy and
chondroplasty of the right knee. The procedure was authorized by the Office.
Appellant claimed that he had employment-related injuries other than the accepted left
shoulder tendinitis and mild degenerative meniscal disease of the right knee. The Office
determined that there was a conflict in the medical opinion between Dr. Hafezi and Dr. Boeck
regarding whether appellant had such additional employment-related injuries. In order to resolve
the conflict, the Office referred appellant to Dr. Paul Bouz, a Board-certified orthopedic surgeon,
for an impartial medical examination and an opinion on the matter.

1

MRI scan testing from this period showed no significant abnormalities of the left shoulder.

2

On May 2, 2006 Dr. Bouz indicated that appellant reported pain in his neck, back,
shoulders, elbows, wrists, hands, knees and right ankle and tingling in his wrists and hands. He
stated that on examination appellant exhibited normal range of motion in his neck, shoulders,
wrists, fingers and legs and that he had a slightly positive Tinel’s sign in both wrists. Dr. Bouz
noted that appellant had some tenderness at L5-S1 with no muscle spasms. He diagnosed
degenerative changes of the neck and low back, status post right knee and left shoulder
arthroscopy, minimal right elbow tendinitis, possible minimal left elbow tendinitis, possible mild
bilateral carpal tunnel syndrome but more likely cervical spondylolysis, polio of the left lower
extremity and possible tarsal tunnel syndrome. Dr. Bouz discussed appellant’s work duties,
including sorting mail and indicated that this type of work would not be competent to cause his
multiple conditions other than the accepted left shoulder and right knee conditions.2 He asserted
that appellant had exaggerated his condition and that it was not possible that his work could cause
pain in virtually every part of his body. Dr. Bouz determined that appellant’s neck and low back
conditions were a result of the natural progression of his preexisting degenerative changes.
In a May 10, 2006 decision, the Office denied appellant’s claim that he had employmentrelated injuries other than the accepted left shoulder tendinitis and mild degenerative meniscal
disease of the right knee. The Office found that the special weight of the medical evidence rested
with the well-rationalized report of Dr. Bouz.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4 The medical
evidence required to establish a causal relationship between a claimed period of disability and an
employment injury is rationalized medical opinion evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’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 claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.5

2

In particular, he indicated that the type of work appellant performed could not cause right tarsal tunnel
syndrome.
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

3

Section 8123(a) of the Act provides in pertinent part: “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.”6 In situations
where 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.7
ANALYSIS
The Office accepted that appellant sustained employment-related left shoulder tendinitis
and mild degenerative meniscal disease of the right knee. Appellant claimed that he had
employment-related injuries other than the accepted left shoulder and right knee conditions.
The Office properly determined that there was a conflict in the medical opinion between
Dr. Hafezi, appellant’s attending Board-certified orthopedic surgeon and Dr. Boeck, a Boardcertified orthopedic surgeon acting as an Office referral physician, on whether appellant had such
additional employment injuries. In October 18 and December 4, 2001 reports, Dr. Hafezi
determined that appellant’s cervical and lumbar degenerative changes were due to working at the
employing establishment. In a June 15, 2003 report, Dr. Boeck determined that appellant’s
employment-related residuals were limited to his left shoulder and right knee and posited that his
cervical and lumbar degenerative conditions were not employment related. In order to resolve
the conflict, the Office properly referred appellant, pursuant to section 8123(a) of the Act, to
Dr. Bouz, a Board-certified orthopedic surgeon, for an impartial medical examination and an
opinion on the matter.8
The Board finds that, the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Bouz, the impartial medical specialist selected to resolve the
conflict in the medical opinion. The May 2, 2006 report of Dr. Bouz establishes that appellant did
not sustain employment-related injuries other than the accepted left shoulder tendinitis and mild
degenerative meniscal disease of the right knee. He indicated that appellant reported pain in his
neck, back, shoulders, elbows, wrists, hands, knees and right ankle and tingling in his wrists and
hands. Dr. Bouz noted limited findings on examination with normal range of motion in the neck,
back and extremities, a slightly positive Tinel’s sign in both wrists and tenderness at L5-S1 with no
muscle spasms. He diagnosed degenerative changes of the neck and low back, status post right
knee and left shoulder arthroscopy, minimal right elbow tendinitis, possible minimal left elbow
tendinitis, possible mild bilateral carpal tunnel syndrome but more likely cervical spondylolysis,
polio of the left lower extremity and possible tarsal tunnel syndrome. Dr. Bouz concluded that
appellant did not have any employment-related conditions other than the accepted left shoulder and
right knee conditions.

6

5 U.S.C. 8123(a).

7

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

8

See supra notes 6 and 7 and accompanying text.

4

The Board has carefully reviewed the opinion of Dr. Bouz and notes that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant issue
of the present case. Dr. Bouz’ opinion is based on a proper factual and medical history in that he
had the benefit of an accurate and up-to-date statement of accepted facts, provided a thorough
factual and medical history and accurately summarized the relevant medical evidence.9
Dr. Bouz provided medical rationale for his opinion by discussing appellant’s work duties
and indicating that this type of work would not be competent to cause his multiple conditions other
than the accepted left shoulder and right knee conditions. He further explained that appellant had
exaggerated his condition and that it was not possible that his work could cause pain in virtually
every part of his body. Dr. Bouz explained appellant’s continuing neck and low back conditions
by indicating that they were a result of the natural progression of his preexisting degenerative
changes.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he had
employment-related injuries other than the accepted left shoulder tendinitis and mild
degenerative meniscal disease of the right knee.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 10, 2006 decision is affirmed.
Issued: February 27, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF DEFENSE, DECA-WEST
)
REGION, MCCLELLAN AIR FORCE BASE,
)
CA, Employer
)
___________________________________________ )
D.C., Appellant

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

Docket No. 08-999
Issued: February 12, 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 February 19, 2008 appellant filed a timely appeal from a February 4, 2008 Office of
Workers’ Compensation Programs’ wage-earning capacity decision. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof in reducing appellant’s
compensation effective February 17, 2008, based on its determination that the constructed
position of a telephone sales representative represented her wage-earning capacity.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In an August 21, 2007
decision, the Board reversed the Office’s January 5 and April 6, 2006 decisions which reduced
1

Docket No. 06-1238 (issued August 21, 2007).

appellant’s compensation based on the constructed position of a telephone sales representative
effective February 20, 2004. The Board found that, as the Office did not first consider whether
appellant’s actual earnings as a part-time motivator fairly and reasonably represented her
wage-earning capacity, it did not meet its burden of proof. The facts and the history contained in
the prior appeal are incorporated by reference.
On January 10, 2008 the Office requested that the employing establishment provide
appellant’s current pay information for her date-of-injury position.
On January 23, 2008 the Office received pay rate information from the employing
establishment which reflects that appellant would have received an hourly rate of $16.75 as a
store worker at WG-4 Step 4 effective January 8, 2008 in Barstow, California and $16.54 on
January 15, 2008 in Topeka, Kansas, as a store worker.
On February 1, 2008 the Office received current wage information in the local area for a
telephone sales representative from Leslie Nelson, the rehabilitation specialist, who noted that
she had previously rated appellant for a position as a telephone sales representative in the local
area. Ms. Nelson indicated that the current wage information in the local area was obtained from
the Occupational Employment Statistics and Kansas Occupational Wage and Outlook Reports
for 2006, which was the most current information available. She noted that the compilation of
wage information for the year 2007 had not been released to date. Regarding the Topeka,
Kansas area, Ms. Nelson noted that the entry level wage for a sales representative was
$24,100.00 per year or $11.57 per hour. She noted that the wages for a sales representative were
the most representative of the job of telephone sales representative in the labor market.
Ms. Nelson concluded that appellant was educationally, vocationally and medically capable of
performing the duties of telephone sales representative, DOT 299.357-014.
By decision dated February 4, 2008, the Office finalized the proposed reduction of
compensation to $641.00 every four weeks, effective February 17, 2008, based on her ability to
work as a telephone sales representative. It considered appellant’s position as a part-time
motivator effective February 17, 2004 and noted that she worked approximately 16 hours per
week. However, the Office concluded that her actual earnings did not fairly and reasonably
represent her wage-earning capacity because the part-time position was not equivalent to the job
she held at the date of injury, which was a permanent full-time job. It noted that the position at
the Curves Fitness Center was a part-time job, which only paid $6.50 per hour, while her date-ofinjury job paid her $9.96 per hour, full time. The Office concluded that the actual earnings of the
part-time position did not fairly and reasonably represent her wage-earning capacity. It also
found that the weight of the medical evidence continued to support that appellant was capable of
performing the position of telephone sales representative.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
2

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

2

Section 8115(a) of the Federal Employees’ Compensation Act,3 provides in determining
compensation for partial disability, the wage-earning capacity of an employee is determined by
her actual earnings if her actual earnings fairly and reasonably represent her wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and
in the absence of evidence showing they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.4 If the actual earnings do
not fairly and reasonably represent wage-earning capacity or if the employee has no actual
earnings, her wage-earning capacity is determined with due regard to the nature of her injury, her
degree of physical impairment, her usual employment, her age, her qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect her wage-earning capacity in her disabled condition.5 Wage-earning capacity is a
measure of the employee’s ability to earn wages in the open labor market under normal
employment conditions.6 The job selected for determining wage-earning capacity must be a job
reasonably available in the general labor market in the commuting area in which the employee
lives.7 In determining an employee’s wage-earning capacity, the Office may not select a
makeshift or odd lot position or one not reasonably available on the open labor market.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to her physical limitation,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.9 Finally, application of the principles set forth
in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.10
ANALYSIS
The Board previously found that the Office did not meet its burden of proof in reducing
appellant’s compensation based on the constructed position of a telephone representative,
effective February 20, 2004 and reversed the Office’s January 5 and April 6, 2006 decisions,
3

5 U.S.C. § 8115.

4

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

5

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

6

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

7

Id.

8

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

9

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

10

Id. See Albert C. Shadrick, 5 ECAB 376 (1953).

3

because the Office did not consider appellant’s actual earnings as a part-time motivator for
Curves, a fitness facility.
Following the Board’s action, the Office considered appellant’s position as a part-time
motivator for Curves and noted that she worked approximately 16 hours per week and earned
$6.50 per hour as of February 17, 2004. It found that appellant had demonstrated the ability to
perform the duties of the part-time position for two months or more; however, it concluded that
the actual earnings of that position did not fairly and reasonably represent her wage-earning
capacity. The Office found that the kind of appointment and tour of duty were not equivalent to
the job appellant held on the date of injury. It explained that, on the date of injury, appellant
worked in a permanent, full-time position as a store worker with the employing establishment for
40 hours per week and earned $9.96 per hour.
The Office also requested that the rehabilitation specialist provide current wage
information in the local area for the constructed position of a telephone sales representative.
Ms. Nelson provided updated information for a telephone sales representative in the Topeka,
Kansas area and determined that the entry level wages for a sales representative, were
approximately $24,100.00 per year or $11.57 per hour. She noted that the wages for the sales
representative most closely represented the job of telephone sales representative in the labor
market and that appellant was educationally, vocationally and medically capable of performing
the duties of telephone sales representative, DOT 299.357-014.
By decision dated February 4, 2008, the Office made a determination that the constructed
position of a telephone sales representative represented appellant’s wage-earning capacity.
However, the Office’s procedures require that a prereduction of compensation notice be provided
to appellant. In particular, the procedures note:
“After selecting a position from those listed by the RC and after determining that
the job is suitable and available, the CE should provide the claimant with a
prereduction notice as described in FECA PM 2-1400.6 and 7. This action should
be taken within 30 days of receipt of the RC’s or RS’s final report.
(a) If the claimant does not respond within 30 days of the notification of
proposed reduction, the [claims examiner] should prepare a formal
decision (Form CA-1048) determining the claimant’s [wage-earning
capacity] and reducing the compensation payments beginning with the
next periodic roll payment cycle.”11
The Office provided no prereduction notice in this case. It indicated that it was finalizing
the February 20, 2004 proposed notice of reduction. However, the Board reversed the earlier
decision which sought to finalize the reduction of compensation proposed in that notice.
Furthermore, the rehabilitation counselor provided updated information and the Office further
developed the matter of whether appellant’s actual earnings fairly and reasonably represented her

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-earning Capacity,
Chapter 2.814.8(e) (December 1995); see also David W. Green, 43 ECAB 883 (1992); 20 C.F.R. § 10.540.

4

wage-earning capacity. Office procedures, as noted, contemplate that a prereduction notice be
issued.
The Board notes that reduction of benefits prior to the issuance of a notice of proposed
reduction of compensation defeats the purpose of the Office’s procedures that provide for notice
before reduction of benefits since “the claimant must be provided with written notice of the
proposed action and given 30 days to submit relevant evidence or argument to support
entitlement to continued compensation.”12 These procedures indicate that the notice of proposed
reduction in compensation does not constitute a decision to reduce compensation and they
contemplate that reduction of compensation will follow the issuance of a notice-of-reduction of
compensation.13 None of the exceptions to the requirement of prereduction notice apply to this
situation where the Office is seeking to reduce appellant’s compensation.14
CONCLUSION
The Board finds that the Office did not reduce appellant’s compensation based on its
determination that the constructed position of a telephone sales representative represented her
wage-earning capacity effective February 4, 2008.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.6 (March 1997).

13

Id. at para. 7(a).

14

See id. at para 6. Office regulations, at 20 C.F.R. § 10.541(b) provide that, if the beneficiary submits evidence
that fails to refute the evidence upon which the proposed action was based but which requires further development
by the Office, the Office will not provide another notice of proposed action upon completion of such development.
The Board notes that such regulatory provision is not applicable to the present situation as the Board previously
reversed the Office’s reduction of compensation when it found that the Office did not meet its burden of proof to
reduce appellant’s compensation.

5

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 12, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, PUGET
)
SOUND NAVAL SHIPYARD &
)
INTERMEDIATE MAINTENANCE FACILITY, )
Bremerton, WA, Employer
)
__________________________________________ )
R.B., Appellant

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

Docket No. 19-1466
Issued: April 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 26, 2019 appellant filed a timely appeal from March 21 and May 8, 2019 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish ratable
hearing loss for schedule award purposes; and (2) whether OWCP properly exercised its discretion
in denying authorization for a right-side hearing aid.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 4, 2018 appellant, then an 87-year-old retired tool and parts attendant, filed
an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors
of his federal employment. 2 He indicated that he first became aware of his hearing loss and its
relationship to his federal employment on March 3, 1988.
Appellant submitted employment-related audiometric reports providing the results of
audiometric testing from January 24, 1966 to March 3, 1988. The March 3, 1988 results of
audiometric testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz
(Hz) revealed decibel losses of 10, 5, 5, and 20, respectively. Testing for the left ear at the same
frequency levels revealed decibel losses of 25, 15, 20, and 30, respectively.
In a development letter dated December 13, 2018, OWCP requested that the employing
establishment review appellant’s claim and provide comments from a knowledgeable supervisor
regarding appellant’s employment-related exposure to hazardous noise.
In an undated summary of occupational exposure to noise, the employing establishment
noted that, from May 30, 1971 until June 2, 1989, appellant worked as a tool and parts attendant.
The background sound level range of the ship work area was measured as 80 to 85 decibels (dBs)
continuously, while the background sound level range of the shop work area was measured as 70
to 80 dBs continuously.
OWCP subsequently prepared a statement of accepted facts (SOAF) and referred appellant
for a second opinion examination.
In a February 28, 2019 report, Dr. Edward Treyve, a Board-certified otolaryngologist
serving as an OWCP second opinion physician, noted appellant’s history of noise exposure during
his federal employment. He also examined appellant, obtained a current audiogram, and reviewed
the results of appellant’s previous audiograms from January 24, 1966 through October 10, 2018.
Dr. Treyve advised that the ear canals were normal, while the tympanic membranes were scarred.
He noted that the latest audiometric testing, on February 28, 2019, revealed moderate-tomoderately-severe sensorineural hearing loss on the right with moderate-to-profound
sensorineural hearing loss on the left. Dr. Treyve noted that review of appellant’s audiometry
results from January 24, 1966 through March 3, 1988 revealed high-frequency hearing loss
involving 4,000 to 6,000 Hz in the right ear and 3,000 to 6,000 Hz in the left ear, resulting in a
deterioration of hearing at 4,000 Hz in both ears over the course of employment. Audiometry
results from October 10, 2018 revealed moderate-to-severe binaural hearing loss, worse on the left
than the right. Dr. Treyve diagnosed binaural hearing loss. He indicated that deterioration in
hearing over the course of employment was in excess of what would have been predicted on the
basis of presbycusis alone, and workplace exposures were of significant intensity and duration to
have contributed to appellant’s hearing loss. Dr. Treyve calculated that, under the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,

2

Appellant voluntarily retired effective June 2, 1989.

2

Guides),3 appellant had a binaural hearing impairment of 46.3 percent, with monaural impairments
of 61.9 percent on the left and 43.1 percent on the right. He recommended binaural amplification,
the need for which was, in part, related to the combination of occupational noise exposure and
presbycusis. Dr. Treyve explained that, based on the results of his industrial audiometry from
1988, amplification would have been recommended only for the left ear at that time.
By decision dated March 21, 2019, OWCP accepted appellant’s claim for binaural hearing
loss. It found that the medical evidence of record established that he would benefit from a hearing
aid for the left ear only. Appellant was informed that he could file a claim for a schedule award
and/or wage-loss compensation.
On April 4, 2019 appellant filed a claim for a schedule award (Form CA-7).
OWCP forwarded the case, including Dr. Treyve’s February 28, 2019 second opinion
evaluation and audiogram, to a district medical adviser (DMA) for an assessment of the extent, if
any, of appellant’ binaural hearing loss.
In an April 22, 2019 report, Dr. Stephen Maturo, a Board-certified otolaryngologist serving
as the DMA, reviewed the otologic and audiologic testing performed by Dr. Treyve and applied
OWCP’s standardized procedures to his evaluation. He noted that in 1966 appellant had highfrequency hearing loss, worse in the left ear than the right ear, and that over the next decade this
became a severe loss in the left ear and a moderate loss in the right ear. From 1976 through 1988
appellant’s hearing loss remained stable, and he retired in 1989. Dr. Maturo found zero percent
binaural hearing loss based upon the hearing testing from 1988, noting that appellant had retired
in 1989, and thus hearing tests after that time period should not be used to calculate hearing loss.
He indicated that occupational hearing loss does not progress once a person is removed from the
noise environment. Dr. Maturo disagreed with Dr. Treyve’s findings regarding the extent of
appellant’s ratable hearing loss noting that the rating should be based on appellant’s 1988
audiogram data.
By decision dated May 8, 2019, OWCP denied appellant’s schedule award claim. It
explained that while the claim had been accepted for employment-related hearing loss, based upon
the 1988 audiogram appellant had no ratable hearing loss. OWCP noted the DMA’s comment that
as appellant retired in 1989, his impairment rating should be based on the 1988 audiogram data,
as occupational hearing loss does not progress once one is removed from a loud noise environment.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 4 and its implementing regulations 5 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 by which the percentage loss of a member, function, or organ shall be
3

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

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses. 6 As of May 1, 2009, schedule awards are determined in accordance
with the sixth edition of the A.M.A., Guides (2009).7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. 8 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by
five and then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.9
Regarding progression of hearing loss, OWCP’s procedures provide, that noise-induced
hearing loss does not typically progress after exposure to noise ceases. A claimant with an
audiogram showing less than a 25-dB loss soon after exposure ceases and a second audiogram
showing a ratable loss may be denied if a DMA provides a well-reasoned opinion. Other benefits
remain payable if any employment-related hearing loss exists. 10
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP referred appellant for a second opinion evaluation with Dr. Treyve, who obtained
audiometric data on February 28, 2019. In his February 28, 2019 report, Dr. Treyve determined
that appellant sustained work-related binaural hearing loss and calculated binaural hearing
impairment of 46.3 percent, with monaural impairments of 61.9 percent on the left, and 43.1
percent on the right under the sixth edition of the A.M.A., Guides.
OWCP’s DMA, Dr. Maturo, disagreed with Dr. Treyve, noting that occupational hearing
loss does not progress once a person is removed from the source of noise. He concluded that based
6

Id. B.B., Docket No. 19-1491 (issued February 3, 2020); see also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January
2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017).
8

See A.M.A., Guides 250.

9

V.M., Docket No. 18-1800 (issued April 23, 2019); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52
ECAB 462 (2001).
10
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January
2010); W.H., Docket No. 13-1470 (issued January 6, 2014).

4

on appellant’s March 3, 1988 audiogram, he had no ratable hearing loss. As previously noted, a
DMA’s opinion that hearing loss due to hazardous noise exposure does not progress after noise
exposure ceases must be supported by medical rationale. 11 The Board finds, however, that the
DMA merely concluded that hearing loss does not progress after exposure to hazardous noise ends.
The DMA did not offer a rationalized medical opinion explaining why appellant’s hearing loss
progression was not compensable, given the factual and medical evidence of record. 12
Further, there is evidentiary support in the record, based upon the report of Dr. Treyve,
OWCP’s second opinion physician, that the progression of appellant’s hearing loss after 1989
should be compensable. The Board has recognized that a claimant may be entitled to a schedule
award for hearing loss, even after exposure to hazardous noise has ceased, if causal relationship is
supported by the medical evidence of record. 13
When a DMA fails or neglects to provide rationale for a percentage of impairment
specified, OWCP should request a clarification or supplemental report from the DMA.14 The
Board finds that OWCP failed to request a clarification or supplemental report containing
necessary rationalization from the DMA as to whether appellant had a progression of sensorineural
hearing loss after 1989 due to his accepted employment-related hearing loss based upon the
medical evidence of recording including the report of Dr. Treyve.
On remand OWCP should request a supplemental report from the DMA which addresses,
with the necessary medical rationale, whether appellant sustained a progression of hearing loss
due to the accepted employment injury. Following this and such further development as deemed
necessary, OWCP shall issue a de novo decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty the services, appliances, and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure, give
relief, reduces the degree, or the period of any disability, or aid in lessening the amount of any
monthly compensation. 15 OWCP must therefore exercise discretion in determining whether the
particular service, appliance, or supply is likely to affect the purposes specified in FECA. 16

11

Id.; see also E.C., Docket No. 19-1007 (issued November 8, 2019; Adelbert E Buzzell, 34 ECAB 96 (1982).

12

Id.

13

See E.R., Docket No. 16-1529 (issued March 3, 2017); Adelbert E. Buzzell, supra note 11.

14

Supra note 7 at 2.808.6.f(2)(a).

15

See J.W., Docket No. 16-0231 (issued March 10, 2016); Joshua A. Holmes, 42 ECAB 231, 236 (1990).

16

5 U.S.C. § 8103.

5

Following medical evaluation of a claim, if the hearing loss is determined to be nonratable
for schedule award purposes, other benefits such as hearing aids may still be payable if any
employment-related hearing loss exists. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP abused its discretion in denying appellant’s request for a rightside hearing aid.18
The Board has held that, following medical evaluation of a claim, if the hearing loss is
determined to be nonratable for schedule award purposes, other benefits such as hearing aids may
still be provided if any causally related hearing loss exists. 19 Dr. Treyve’s February 28, 2019 report
recommended binaural amplification, the need for which was in part related to the combination of
occupational noise exposure and presbycusis. Dr. Treyve explained that based on industrial
audiometry in 1988, amplification would have been recommended only for the left ear. However,
as previously noted, OWCP’s procedures provide that other benefits are still payable if any
employment related hearing loss exists, even if progression of hearing loss after exposure to
hazardous noise ends was not related to the accepted exposure. 20
Dr. Treyve recommended bilateral amplification based in part on appellant’s occupational
noise exposure, and the DMA did not offer any opinion disputing appellant’s need for bilateral
hearing aids. The Board therefore finds that OWCP abused its discretion in denying appellant’s
request for a right-side hearing aid. Upon return of the case record, OWCP shall authorize a rightside hearing aid.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant met
his burden of proof to establish a ratable hearing loss, warranting a schedule award. The Board
also finds that OWCP abused its discretion in denying a right-side hearing aid.

17

J.M., Docket No. 16-0526 (issued May 13, 2016); see F.D., Docket No. 10-1175 (issued January 4, 2011).

18

See J.W., supra note 15; R.N., Docket No. 13-284 (issued July 3, 2013).

19

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(2)
(October 1995); J.W., supra note 15; Raymond VanNett, 44 ECAB 480 (1993).
20
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); W.H., Docket No. 13-1470 (issued January 6, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the March 21, 2019 decision of the Office of
Workers’ Compensation Programs is reversed in part regarding the denial of the right-sided
hearing aid.
IT IS FURTHER ORDERED THAT the May 8, 2019 decision is set aside and this case
is remanded for further proceedings consistent with this decision of the Board.
Issued: April 9, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7