United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Campbell, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1947
Issued: February 3, 2009

Case Submitted on the Record

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

JURISDICTION
On July 7, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ decision dated June 18, 2008 denying appellant’s claim for compensation. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On January 28, 2008 appellant, then a 43-year-old city route mail carrier, filed an
occupational disease claim alleging that he sustained bilateral tendinitis of the right and left
shoulders. He stated that he first became aware of his condition on August 21, 2007 when his
shoulders started to hurt. Appellant further stated that he did not file the claim within 30 days
because his doctor informed him the pain would eventually go away. He did not stop work and

had been on light duty at the time he filed his claim, restricted to casing two bottom shelves and
nothing above his shoulders.
In a January 28, 2008 letter, the employing establishment controverted appellant’s claim
asserting that he had been working under physical medical restrictions since August 9, 2007,
including no lifting, carrying, standing, walking or reaching above the shoulders.
On February 8, 2008 the Office notified appellant of the type of factual and medical
evidence needed to establish his claim and allowed him 30 days to submit such evidence. In
particular, it asked him to describe in detail which employment-related activities contributed to
his bilateral tendinitis of the shoulders. The Office also requested that appellant submit
comprehensive medical reports from his treating physicians.
In a March 18, 2008 decision, the Office denied appellant’s claim for compensation on
the grounds that the factual evidence was insufficient to establish that the injury occurred as
alleged and there was no medical evidence providing a diagnosis.
On March 25, 2008 appellant filed a request for reconsideration. In support of his
request, he submitted a February 20, 2008 treatment report from Dr. Samir Sharma, a Boardcertified orthopedic surgeon, in which the physician concluded that appellant sustained bilateral
shoulder impingement syndrome and developed subacromial bursitis with rotator cuff tendinitis
due to repetitive casing of mail for six to eight hours a day.
In an April 29, 2008 letter to the employing establishment, which appellant also was sent,
the Office noted that appellant had not responded to the February 8, 2008 development letter in
which the Office requested specific information regarding which work duties he believed caused
his claimed condition. The Office invited the employing establishment to comment on the
evidence submitted within 20 days.
Appellant subsequently submitted several reports from Dr. Dinesh Bhuva, a Boardcertified orthopedic surgeon. In an October 22, 2007 treatment note, Dr. Bhuva noted bilateral
shoulder pain. In the treatment notes dated November 15 and December 19, 2007 and
January 14, 2008, he also noted bilateral shoulder pain and treated appellant with cortisone
injections in both shoulders.
On June 18, 2008 the Office modified its denial of appellant’s claim finding that the
medical evidence now supported a diagnosis of a medical condition. However, it found that the
claim remained denied because appellant did not identify specific work duties that he alleged
caused his bilateral tendinitis condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
2

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.2
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that a claimed medical condition was caused or adversely affected by
employment factors. This burden includes the submission of a detailed description of the
employment factors or conditions, which the claimant believes caused or adversely affected the
condition or conditions for which compensation is claimed. If a claimant does establish an
employment factor, he must submit medical evidence showing that a medical condition was
caused by such a factor.3 It is the claimant’s responsibility to prove that work was performed
under these specific conditions at the time, in the manner and to the extent alleged.4
ANALYSIS
As noted, three criteria must be established in an occupational disease claim. The record
supports that the first requirement, establishing the existence of a disease or medical condition,
has been met as treatment notes from Drs. Sharma and Bhuva support that appellant has bilateral
shoulder impingement syndrome and that he is also being treated for bilateral tendinitis of both
shoulders.
However, appellant has not met his burden of proof in establishing his claim because he
has not identified employment factors alleged to have caused or contributed to the presence or
occurrence of his claimed condition. His Form CA-2 states that his “shoulders started to hurt”
but does not indicate any particular work assignments or describe the types of duties he performs
at work. The employing establishment also disputed appellant’s claim noting that he had been
restricted from carrying, lifting and reaching above his shoulders since August 9, 2007.
Additionally, the Office’s February 8, 2008 letter requested that appellant provide a detailed
description of the employment-related activities causing or contributing to his bilateral tendinitis.
Despite the fact that the Office advised appellant of the type of factual and medical evidence
1

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

2

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

Effie Morris, 44 ECAB 470 (1993).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(a) (April 1993)
(in occupational disease cases, the claimant must submit evidence to identify fully the particular work conditions
alleged to have caused the disease); see also L.B., 59 ECAB ___ (Docket No. 07-1748, issued December 18, 2007)
(stating that the claimant has the burden of proof to identify employment factors believed to have caused or
aggravated a claimed employment-related condition).

3

needed to support his claim, he failed to provide any evidence identifying specific employment
factors alleged to have caused or contributed to his claimed condition. The Office also noted this
deficiency in the evidence of its March 18, 2008 decision and in its April 29, 2008 letter to the
employing establishment which was also sent to appellant. However, appellant did not submit a
statement in which he identified specific employment duties that he believes caused or
aggravated his claimed shoulder conditions.
Because appellant has not identified employment factors alleged to have caused or
contributed to a diagnosed condition, it is not necessary to consider medical evidence addressing
causal relationship.5 In any event, Dr. Sharma’s February 20, 2008 report, in which he attributed
bilateral shoulder impingement syndrome to repetitive casing is insufficient since, is insufficient.
The opinion of the physician must be based on a complete factual and medical background, 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 compensable
employment factors identified by the claimant.6 Because appellant failed to identify specific
work duties or activities alleged to have caused his condition, Dr. Sharma’s diagnosis is not
based on a complete background of appellant’s history. Additionally, the treatment notes from
Dr. Bhuva do not reference contributing employment factors and also do not provide an opinion
as to whether employment factors caused or adversely affected appellant’s condition.7
As a result, the evidence of record insufficiently meets appellant’s burden of proof in
establishing that his bilateral tendinitis is causally related to specific employment factors of his
federal employment.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an occupational disease in the performance of duty.

5

See S.P., 59 ECAB __ (Docket No. 07-1584, issued November 15, 2007); Bonnie Contreras, 57 ECAB 364
(2006) (where a claimant has not established an employment incident alleged to have caused an injury, it is not
necessary to consider the medical evidence).
6

See M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007).

7

See K.W., 59 ECAB __ (Docket No. 07-1669, issued December 13, 2007); Willie Miller, 53 ECAB 697 (2002)
(medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 18, 2008 is affirmed.
Issued: February 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S. FISH
& WILDLIFE SERVICE, Valley Stream, NY,
Employer
__________________________________________
Appearances:
Behich Mustafa, for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 20-1451
Issued: July 26, 2021

Case Submitted on the Record

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

On July 29, 2020 appellant, through her representative, filed a timely appeal from a
March 10, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 20-1451.
On March 14, 2019 appellant, then a 45-year-old wildlife inspector, filed a traumatic injury
claim (Form CA-1) alleging that on May 12, 2017 she sustained a back injury when she attempted
to open a container with a tool that slipped causing her to twist/lunge while in the performance of
duty. She also claimed that her back injury was related to her prior June 1, 2016 work-related
injuries of lumbosacral strain and sprain, bulging disc at L4-L5, post-traumatic lumbar facet

1

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

syndrome, and S1 lumbar radiculopathy.2 Appellant did not stop work. She submitted medical
evidence in support of her claim. OWCP assigned that case File No. xxxxxx640.
Appellant completed an OWCP development questionnaire on April 20, 2019 and again
noted that, prior to her claimed May 12, 2017 employment-related injury, she was diagnosed as
having sprain of ligaments of the lumbar spine, a bulging lumbar disc, and lumbar pain with
radiculopathy. She indicated that she was also diagnosed as having osteoarthritis of the lumbar
spine, degenerative disc disease, and lumbago syndrome. Appellant related that some of these
conditions had been accepted as employment-related under OWCP File No. xxxxxx670. She
maintained that relevant medical records were available in that ﬁle and related to her June 1, 2016
employment injury.
OWCP, by decision dated May 14, 2019, denied appellant’s traumatic injury claim, finding
that the evidence of record failed to establish that her diagnosed medical conditions were causally
related to the accepted May 12, 2017 employment incident.
On August 2, 2019 appellant, through her representative, requested reconsideration and
submitted new evidence. Appellant’s representative contended that OWCP, in its May 14, 2019
decision, made no reference to the medical evidence contained in OWCP File No. xxxxxx670,
which related to appellant’s accepted June 1, 2016 employment injury. He further contended that
contrary to OWCP’s finding that a May 15, 2017 medical report by Dr. Laximidhar Diwan, a
Board-certified orthopedic surgeon, was of diminished probative value because he was not fully
aware of appellant’s history of injury on May 12, 2017 and medical background, Dr. Diwan had
continuously treated appellant since April 10, 2017 and obtained and reviewed her prior medical
records dating back to June 1, 2016 as indicated in his accompanying letter dated April 10, 2017.
Appellant’s representative asserted that the case record in OWCP File No. xxxxxx670 played a
significant role in the adjudication of appellant’s current case under OWCP File No. xxxxxx640.
Thus, he requested that OWCP administratively combine OWCP File No. xxxxxx670 with the
present claim, OWCP File No. xxxxxxx640.
By decision dated August 8, 2019, OWCP denied modification of its May 14, 2019
decision.
On February 28, 2020 appellant, through her representative, again requested
reconsideration. He reiterated that OWCP should administratively combine the current case
record, OWCP File No. xxxxxx640, with appellant’s traumatic lumbar injury claim under OWCP
File No. xxxxxx670. Appellant’s representative also continued to submit new medical evidence.
OWCP, in a March 10, 2020 decision, denied modification of its August 8, 2019 decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
2

Appellant has a prior claim for a June 1, 2016 traumatic injury, which OWCP accepted for sprain of the
lumbosacral spine, strain of the lumbosacral spine, bulging disc at L4-L5, post-traumatic lumbar facet syndrome, and
left S1 lumbar radiculopathy under OWCP File No. xxxxxx670. OWCP has not administratively combined that claim
with the current claim, OWCP File No. xxxxxx640.

2

correct adjudication of the issues depends on frequent cross-referencing between files.3 For
example, if a new injury is reported for an employee who previously filed an injury claim for a
similar condition or the same part of the body, doubling is required.4 In the instant case, appellant
had a prior traumatic injury claim for her back in OWCP File No. xxxxxx670. She then filed the
present traumatic injury claim for the same body part, assigned OWCP File No. xxxxxx640, and
related her current injury to her prior accepted back conditions in OWCP File No. xxxxxx670.
The evidence pertaining to OWCP File No. xxxxxx670, however, is not part of the case record
presently before the Board.
For a full and fair adjudication, the Board finds that the new claim should be
administratively combined with the previously accepted claim, pursuant to OWCP’s procedures.
Therefore, the case must be remanded to OWCP to administratively combine the case records for
OWCP File Nos. xxxxxx670 and xxxxxx640. Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision on the merits of appellant’s claim.
IT IS HEREBY ORDERED THAT the March 10, 2020 merit decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: July 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; see P.B., Docket No. 19-1532 (issued April 30, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Mount Hope, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-234
Issued: August 1, 2011

Case Submitted on the Record

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

JURISDICTION
On November 8, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated October 15, 2010. 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 schedule award decision.
ISSUE
The issue is whether appellant has more than a two percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On April 29, 2010 appellant, then a 56-year-old mine safety and health specialist, filed an
occupational claim for compensation benefits alleging that he sustained hearing loss due to his
1

5 U.S.C. § 8101 et seq.

federal employment. He first became aware of his hearing loss on June 1, 2000 and continued to
be exposed to noise in his federal employment.
By letter dated May 18, 2010, OWCP advised appellant of the evidence needed to
establish his claim.
Appellant submitted medical documentation, including audiogram studies from 1995 to
May 3, 2010. The May 3, 2010 audiogram was ostensibly performed at the request of
Dr. David A. Phillips, a Board-certified otolaryngologist; however, this audiogram was unsigned
and did not provide any verification information regarding the audiometric testing.
By letter dated September 7, 2010, OWCP referred appellant and a statement of accepted
facts to Dr. Albert James Paine, Jr., a Board-certified otolaryngologist. Audiologist Kathryn J.
Teolenberg, performed audiometric testing of appellant on September 21, 2010 at the request of
Dr. Paine. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed the following: right ear 15, 20, 15 and 60 decibels; left ear 15, 20, 10 and 60 decibels.
Dr. Paine determined that appellant sustained bilateral high frequency sensorineural hearing loss,
due to noise exposure encountered in his federal employment. The loss was in excess of that
expected from presbycusis. Dr. Paine determined that the workplace exposures as described
were sufficient intensity and duration to have caused the loss in question. He recommended
binaural hearing aids and no further testing. Dr. Paine’s report included audiometric testing
verification documentation.
By decision dated October 7, 2010, OWCP accepted that appellant sustained bilateral
hearing loss due to workplace exposure to noise. On the same date, an OWCP’s medical adviser
reviewed Dr. Paine’s report and the audiometric test of September 21, 2010. The medical
adviser concluded that, in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), appellant had
a two percent binaural sensorineural hearing loss. He noted that the date of maximum medical
improvement was September 21, 2010.
On October 8, 2010 appellant filed a claim for a schedule award.
In a decision dated October 15, 2010, OWCP granted appellant a schedule award for a
two percent binaural sensorineural hearing loss. The period of the award was from September 22
to October 19, 2010.
LEGAL PRECEDENT
The schedule award provision of FECA2 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. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

2

and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.4
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 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has affirmed OWCP’s adoption of
this standard for evaluating hearing loss.5
The requirements of the evidence to be used in evaluating occupational hearing loss
claims are defined by the Federal (FECA) Procedure Manual. It provides that the employee
should undergo audiological evaluation and otological examination; that the audiological testing
precede the otologic examination; that the audiological evaluation and otologic examination be
performed by different individuals as a method of evaluating the reliability of the findings; that
the clinical audiologist and otolaryngologist be certified; that all audiological equipment
authorized for testing meet the calibration protocol contained in the accreditation manual of the
American 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; and that the otolaryngologist’s report include the date and hour of
examination; date and hour of the employee’s last exposure to loud noise; and rationalized
medical opinion regarding the relationship.6
ANALYSIS
OWCP relied on the second opinion physician, Dr. Paine, to accept appellant’s claim. An
OWCP medical adviser applied OWCP’s standardized procedures to the September 21, 2010
audiogram performed for Dr. Paine. Testing for the right ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cycles per second revealed decibel losses of 15, 20, 15 and 60,
respectively. These decibels were totaled at 110 and were divided by 4 to obtain an average
hearing loss at those cycles of 27.5 decibels. The average of 27.5 decibels was then reduced by
25 decibels (the first 25 decibels were discounted as discussed above) to equal 2.5 which was

4

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

5

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

6

Joshua A. Holmes, 42 ECAB 231 n.2 (1990).

3

multiplied by the established factor of 1.5 to compute a 3.75 percent monaural loss of hearing for
the right ear.7
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed decibel losses of ear 15, 20, 10 and 60, respectively. These decibels were
totaled at 105 and were divided by 4 to obtain the average hearing loss at those cycles of 26.25
decibels. The average of 26.25 decibels was then reduced by 25 decibels (the first 25 decibels
were discounted as discussed above) to equal 1.25, which was multiplied by the established
factor of 1.5 to compute a 1.875 percent hearing monaural loss for the left ear.
The binaural loss was calculated by taking the lesser loss, 1.875, multiplying it by 5,
(9.375) then adding it to the greater loss of 3.75 (13.125) with the total divided by 6 to arrive at
the amount of the binaural hearing loss of 2.1876 which equals 2 percent after rounding.
Under FECA, the maximum award for 100 percent binaural hearing loss is 200 weeks of
compensation.8 In this case, appellant is entitled to two percent of 200 weeks or 4 weeks of
compensation.9
The Board finds that Dr. Phillips’ report lacks probative value because, as mentioned
above, the audiological evaluation must be conducted by an audiologist and cosigned by a
physician, and must meet the calibration protocol requirement. Dr. Phillips’ evaluation report
was unsigned and did not contain information regarding calibration of the audiometric
equipment.
A claimant retains the right to file for a schedule award or increased schedule award, at
any time, based on new exposure or on medical evidence indicating progression of an
employment-related condition, resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he has more than two percent
binaural hearing loss.

7

A mistake in calculation resulted the percentage to be 3.875. The mistake is immaterial, however, as it did not
affect the result of the final percentage calculation.
8

E.S., 59 ECAB 249 (2007).

9

It is well established, however, that, if calculations based on the monaural hearing loss result in greater
compensation, then the monaural hearing loss calculation should be used. Id. The maximum number of weeks of
compensation for hearing loss in one ear is 52 weeks. Id. The Board finds that the hearing loss in appellant’s right
ear should be rounded to four percent, the nearest whole number. Four percent of 52 weeks equals 2.1 weeks of
compensation and two percent of 52 is 1.04 weeks. Since the binaural loss results in a greater number of weeks, the
Office properly based the award on binaural hearing loss.

4

ORDER
IT IS HEREBY ORDERED THAT the October 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
J. Steven Huffines, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-172
Issued: September 29, 2011

Case Submitted on the Record

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

JURISDICTION
On October 27, 2010 appellant filed a timely appeal from July 14 and October 26, 2010
Office of Workers’ Compensation Programs’ (OWCP) merit decisions regarding her schedule
award claim. 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 has more than four percent impairment of the right upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On April 7, 1999 appellant, then a 45-year-old mail processor, filed an occupational
disease claim alleging injury while repetitively traying and stamping mail. OWCP accepted the
claim for right neuropathy, right nerve decompression and right bicipital tendinitis and paid
1

5 U.S.C. §§ 8101-8193.

compensation benefits including authorizing a March 23, 2000 anterior transposition of the ulnar
nerve, right elbow. By decision dated May 23, 2005, OWCP determined that appellant’s
modified mail processing clerk position effective March 21, 2005 fairly and reasonably
represented her wage-earning capacity.
On June 28, 2008 appellant filed a claim for a schedule award. In a June 7, 2008 report,
Dr. Robert Macht, a Board-certified surgeon, opined that appellant had 19 percent permanent
impairment of the right arm under the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides). This was comprised
of 6 percent for sensory loss, 12 percent for weakness and 3 percent for pain, for a total
combined impairment of 19 percent.
In a November 11, 2008 report, Dr. David L. Gold, a Board-certified orthopedic surgeon
and OWCP referral physician, reviewed appellant’s history, medical records and presented
examination findings. Based on the fifth edition of the A.M.A., Guides, he opined that appellant
had 10 percent right arm impairment due to entrapment neuropathy of the ulnar nerve.
On January 11, 2009 an OWCP medical adviser reviewed the medical record and opined
that appellant had four percent impairment of the right upper extremity under the fifth edition of
the A.M.A., Guides. He indicated that there was only evidence of a grade 3 sensory impairment
without motor loss. The medical adviser indicated that, while Dr. Macht had found weakness,
Dr. Gold did not.
By decision dated January 30, 2009, OWCP issued a schedule award for four percent
right upper extremity impairment. The period of the award ran from November 11, 2008 to
February 6, 2009 for a total of 12.48 weeks.
Appellant requested an oral hearing. By decision dated April 7, 2009, an OWCP hearing
representative vacated the January 30, 2009 decision and remanded the case for referral to an
impartial medical specialist to resolve a conflict between Dr. Macht and Dr. Gold and an OWCP
medical adviser.
OWCP referred appellant to Dr. John C. Gordon, a Board-certified orthopedic surgeon,
for an impartial medical examination. In a May 4, 2009 report, Dr. Gordon opined that appellant
had 17 percent permanent impairment of the right upper extremity based on the fifth edition of
the A.M.A., Guides. In letters dated May 28 and July 22, 2009, OWCP advised Dr. Gordon that
the sixth edition of the A.M.A., Guides became effective on May 1, 2009 and requested that he
provide a report with an impairment rating based on the sixth edition. An upper extremity
worksheet was enclosed. On August 21, 2009 OWCP faxed a copy of its July 22, 2009 letter to
Dr. Gordon and, on September 28, 2009, followed up on the status of the report. On October 5,
2009 it received another copy of Dr. Gordon’s May 4, 2009 report. In an October 8, 2009 letter,
OWCP again requested that Dr. Gordon submit a supplemental impairment report. Several times
from November 3, 2009 to January 26, 2010, it telephoned Dr. Gordon’s office to check on the
status of the supplemental report. In February 4 and March 4, 2010 letters, OWCP repeated its
request that Dr. Gordon provide a supplemental report. No supplemental report was received.

2

On April 5, 2010 OWCP referred appellant to Dr. Zia Zakai, a Board-certified orthopedic
surgeon, for an impartial medical examination. In an April 21, 2010 report, Dr. Zakai noted the
history of injury, her review of the medical record and presented his examination findings. He
diagnosed ulnar nerve neuropathy, right elbow, as confirmed by electromyogram, and status post
anterior transposition of the ulnar nerve with residual, right elbow, which appellant underwent
March 23, 2000. Dr. Zakai indicated that the date of maximum medical improvement was
March 2001 and there was some persistent paresthesia with diminished sensation and some
weakness in grip. Using the sixth edition of the A.M.A., Guides, he opined that appellant had
five percent permanent impairment of the right upper extremity under Table 15-21, page 443.
Dr. Zakai assigned a grade modifier 2 for ulnar peripheral nerve impairment history; grade
modifier 3 for physical findings based on decreased sensation and nerve conduction block; and a
QuickDASH score of 32 using the middle value for the grade.
In a May 11, 2010 report, an OWCP medical adviser reviewed Dr. Zakai’s report and,
using the examination findings, opined that appellant had four percent impairment under Table
15-23, page 449 of the sixth edition of the A.M.A., Guides. He stated that the physical
examination findings did not support assignment of a grade modifier three. The medical adviser
assigned a grade 2 physical findings modifier for sensory deficits only. He explained despite
Dr. Zakai’s finding of motor deficit based on grip strength deficit, there was no objective
evidence of motor deficit and no documented objective findings relative to motor deficit to
consider in rating impairment for the ulnar nerves.
In a May 11, 2010 letter, OWCP requested Dr. Zakai provide a supplemental report
addressing the physical findings assignment of grade 3. It asked Dr. Zakai to comment on the
OWCP medical adviser’s assessment of physical findings under Table 15-23 and the type of
testing that he performed and the manner in which he determined motor deficit. In a May 18,
2010 report, Dr. Zakai addressed appellant’s motor deficit. He stated that appellant’s grip was
weak and intrinsic function of the hand. After manual testing and noticing weakness, Dr. Zakai
measured her strength on dynameter, which was two kilograms (kgs) on the right and five kgs on
the left. He stated that the weakness in appellant’s hands was caused by musculature supplied by
the ulnar nerve.
In a June 29, 2010 report, OWCP’s medical adviser reviewed Dr. Zakai’s May 18, 2010
report, and again opined that appellant had four percent permanent right arm impairment under
Table 15-23 page 449 of the sixth edition of the A.M.A., Guides. He concluded that “if there
was a grade modifier [three] for physical findings based on weakness this would not alter the
final rating.” The medical adviser explained that physical findings were based on observations
of decreased strength or atrophy or weakness, not nerve conduction block. In defining grade
modifier three for physical findings, Dr. Zakai did not make reference to atrophy or weakness.
In his clinical report, there was no objective clinical documentation of motor deficit, rather only
a single grip strength was reported. Grip strength is not used as a factor for rating or adjusting
impairment in the sixth edition. Thus, the physical findings grade modifier would be grade 2 for
sensory deficits. The medical adviser stated that, if there was weakness present, then there could
be an assignment of grade modifier 3. The grade modifiers are added together for a total of 7,
with an average of 2.33. Therefore, the final grade modifier class is two based on Table 15-23
criteria. The medical adviser agreed that a QuickDASH score of 32 was reasonable as it reflected
a mild impairment consistent with appellant’s complaints. Thus, the functional scale would be

3

used to decrease the default rating of five percent arm impairment to four percent arm
impairment.
In a July 14, 2010 decision, reissued on October 26, 2010, OWCP denied appellant’s
claim for an additional schedule award in excess of that previously paid.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 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 shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.3 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying 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).6 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).7
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, OWCP shall appoint a third physician who shall make
an examination.8 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.9

2

20 C.F.R. § 10.404.

3

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

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides 494-531.

7

Id. at 521.

8

5 U.S.C. § 8123(a).

9

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

4

When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report.10 However, when the impartial specialist is unable to clarify or elaborate on
the original report or if a supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining a rationalized medical opinion on the issue.11
OWCP procedures indicate that referral to OWCP’s medical adviser is appropriate when
a detailed description of the impairment from the attending physician is obtained. Where a
medical conflict is present, it is the impartial medical specialist who should provide a reasoned
opinion as to a permanent impairment to a scheduled member of the body in accordance with the
A.M.A., Guides.12 OWCP’s medical adviser may review the opinion, but the resolution of the
conflict is the responsibility of the impartial medical examiner.13
ANALYSIS
Appellant’s claim was accepted for right neuropathy, right nerve decompression and right
bicipital tendinitis and she underwent approved anterior transposition of the ulnar nerve of the
right elbow March 23, 2000. She received a schedule award for four percent right upper
extremity impairment. Appellant disagreed with the award and requested a hearing before an
OWPC hearing representative, who found that a conflict in medical opinion existed between
Dr. Macht and Dr. Gold and the OWCP medical adviser concerning her impairment. OWCP
properly referred appellant to an impartial medical specialist to resolve the conflict in medical
opinion.
Dr. Gordon, the first impartial medical specialist, provided an impairment rating under
the fifth edition of the A.M.A., Guides. Because he did not apply the proper edition of the
A.M.A., Guides, his report was insufficient to resolve the conflict. OWCP made multiple
attempts to obtain a supplemental report from Dr. Gordon that applied the sixth edition of the
A.M.A., Guides, but Dr. Gordon was not responsive. Consequently, it properly referred
appellant to Dr. Zakai.14 On appeal, appellant’s attorney argues that it was unfair to calculate
appellant’s award under the sixth edition of the A.M.A., Guides. The sixth edition of the
A.M.A., Guides became effective May 1, 2009. FECA Bulletin No. 09-3 provides that any

10

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
11

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).
12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010), Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(c) (October 1995).
13

See Thomas J. Fragale, 55 ECAB 619 (2004).

14

See supra notes 10, 11.

5

initial schedule award decision issued on or after May 1, 2009 will be based on the sixth edition
of the A.M.A., Guides even if the amount of the award was calculated prior to that date.15
Dr. Zakai, the second impartial specialist, opined that appellant had five percent
permanent partial impairment of the right upper extremity under Table 15-21, page 443, of the
sixth edition of the A.M.A., Guides, which is for peripheral nerve impairments. OWCP’s
medical adviser reviewed Dr. Zakai’s reports and opined that appellant had four percent
impairment of the right upper extremity under Table 15-23, page 449, which is for
entrapment/compression neuropathy impairment.
The Board finds this case is not in posture for decision. In his April 21, 2010 report, it is
not clear whether Dr. Zakai properly used Table 15-21, page 443, to rate appellant’s impairment
as he did not fully explain why a peripheral nerve impairment diagnosis was appropriate, he did
not specify the precise provision for the ulnar nerve that he used on page 443, and he did not
fully explain how grade modifiers determined and used in reaching the impairment rating. On
May 11, 2010 OWCP’s medical adviser expressed reservation about the use of Table 15-21,
finding that Table 15-23 was more appropriate, and also asserted that the physical examination
grade modifier should be two instead of three as found by Dr. Zakai. On May 11, 2010 OWCP
asked Dr. Zakai to comment on OWCP’s medical adviser’s assessment of physical findings
under Table 15-23 and the type of testing that he performed and the manner in which he
determined motor deficit. In his May 18, 2010 report, Dr. Zakai addressed the testing he
performed, noting his findings that supported right arm weakness in musculature supplied by the
ulnar nerve. He did not clarify whether Table 15-23 was appropriate or whether OWCP’s
medical adviser’s finding of four percent right arm impairment was appropriate under Table 1523. Thereafter, the medical adviser noted Dr. Zakai’s findings and reiterated that appellant had
no more than four percent right arm impairment. The Board finds that Dr. Zakai did not
adequately explain his impairment rating in his initial or supplemental report. As noted,
Dr. Zakai did not fully explain how he determined his impairment rating under specific
provisions of the A.M.A., Guides. Furthermore, the Board finds that OWCP’s medical adviser
improperly substituted his own judgment for that of the impartial medical examiner as he
changed the basis of and reduced Dr. Zakai’s rating. The role of the medical adviser is to verify
the correct application of the A.M.A., Guides. It is the impartial medical specialist, however,
who must resolve the conflict on the degree of permanent impairment in accordance with the
A.M.A., Guides.16
Consequently, the conflict in medical evidence is unresolved and the case will be
remanded to OWCP to secure a supplemental report from Dr. Zakai further explaining his
impairment rating consistent with the A.M.A., Guides. If Dr. Zakai is unable to provide an
appropriate opinion, OWCP should refer the case to another impartial medical examiner.17 After

15

FECA Bulletin No. 09-03 (issued March 15, 2009); see supra note 5.

16

See Richard R. LeMay, 56 ECAB 341 (2005); Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical
Examinations, Chapter 3.500.5(c) (October 1995).
17

See Nancy Keenan, supra note 11.

6

such further development as may become necessary, OWCP shall issue an appropriate final
decision on the extent of appellant’s permanent impairment of the right arm.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2010 decision of the Office of
Workers’ Compensation Programs reissued October 26, 2010 be set aside and the case remanded
for further action consistent with this opinion.
Issued: September 29, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
DEFENSE AGENCIES, PENTAGON FORCE
PROTECTION AGENCY, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0046
Issued: June 1, 2021

Case Submitted on the Record

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

JURISDICTION
On October 14, 2020 appellant, through counsel, filed a timely appeal from an August 25,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On October 14, 2014 appellant, then a 40-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her hip, left knee, left lower leg, lower
back, and right elbow when she slipped and fell down wet steps while in the performance of duty.
She did not stop work.
On February 18, 2015 OWCP accepted appellant’s claim for lumbar back sprain, coccyx
sprain, and peripheral enthesopathy.3 It paid her wage-loss compensation on the supplemental
rolls commencing January 27, 2015.
A magnetic resonance imaging (MRI) scan of appellant’s lumbosacral spine, dated
March 19, 2015, revealed levoscoliosis, mild discogenic disease, spondylosis, and diffuse
posterior disc bulge at L5-S1.
An electromyography (EMG) study, dated July 20, 2015, revealed left L5 lumbar
radiculopathy.
Appellant filed a notice of recurrence (Form CA-2a) on February 1, 2016 alleging that on
January 8, 2016 she sustained a recurrence of disability causally related to her October 14, 2014
employment injury.
By decision dated March 9, 2016, OWCP accepted that appellant sustained a recurrence of
disability on January 8, 2016 due to her accepted lumbar back sprain, coccyx sprain, and peripheral
enthesopathy. It placed her on the supplemental rolls, with wage-loss compensation retroactive to
January 10, 2016.
On April 27, 2017 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits. By decision dated August 3, 2017, it finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective August 20, 2017.
In a December 8, 2017 report, Dr. Eric Dawson, an orthopedic surgeon, noted appellant’s
history of injury. Utilizing the diagnosis-based impairment (DBI) method of the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)4 and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth
Edition (July/August 2009) (The Guides Newsletter), he identified the class of diagnosis (CDX)
as a class 1 impairment for the diagnosis of very severe sensory deficit and motor deficit under
Table 2, page 6 of The Guides Newsletter, which corresponded to 13 percent permanent
3

Appellant accepted a part-time, light-duty assignment, effective January 27, 2015, and was removed from federal
employment, effective August 7, 2016.
4

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

2

impairment of the left lower extremity. Dr. Dawson also identified the CDX as a class 1
impairment for the diagnosis of moderate sensory impairment at L5, which corresponded to six
percent permanent impairment of the right lower extremity. He totaled the two impairments and
found that appellant had 19 percent permanent impairment of the lower extremities. Dr. Dawson
opined that appellant had reached maximum medical improvement (MMI).
On February 9, 2018 OWCP referred appellant’s case, along with a statement of accepted
facts (SOAF), for a schedule award impairment rating with Dr. Michael M. Katz, a Board-certified
orthopedic surgeon serving as the district medical adviser (DMA). In a February 12, 2018 report,
Dr. Katz reviewed the SOAF and medical record. He determined that a conflict of medical opinion
existed that could not be resolved on the basis of a medical records review. Dr. Katz, therefore,
recommended that a second opinion impairment evaluation be obtained.
On February 27, 2018 OWCP referred appellant for a second opinion examination with
Dr. Robert Allen Smith, a Board-certified orthopedic surgeon. In a March 15, 2018 report,
Dr. Smith noted his review of the medical record and provided physical examination findings. He
opined that appellant had reached MMI. Utilizing the sixth edition of the A.M.A., Guides and The
Guides Newsletter, Dr. Smith identified the CDX as a class 1 impairment for the diagnosis of mild
sensory deficit without any motor deficit. He assigned a grade modifier for functional history
(GMFH) of 0, in accordance with Table 16-6, page 516, as appellant had no limp. Dr. Smith
reported a grade modifier for clinical studies (GMCS) of 4, in accordance with Table 16-8, page
519, as appellant had denervation. He calculated that appellant had a net adjustment of 3, resulting
in movement from the default class of C to E and corresponding to two percent permanent
impairment of the lower extremity.
On October 11, 2018 OWCP again referred appellant’s case to Dr. Katz, the DMA, for a
schedule award impairment rating. In an October 13, 2018 report, Dr. Katz reviewed the SOAF
and medical record. Utilizing the DBI method of the sixth edition of the A.M.A., Guides and The
Guides Newsletter, he identified the CDX as a class 1 impairment for the diagnosis of mild sensory
deficit under Table 2, page 6 of The Guides Newsletter. Dr. Katz assigned a GMFH of 0 and a
GMCS of 4 and noted that a grade modifier for physical examination (GMPE) was not applicable.
He calculated that appellant had a net adjustment of 2, resulting in movement from the default
class of C to E and corresponding to two percent impairment of the left lower extremity. Dr. Katz,
therefore, concurred with Dr. Smith’s impairment rating and noted that his physical examination
findings were consistent with the medical record. He opined that a range of motion (ROM) rating
was not applicable under the A.M.A., Guides and that appellant had reached MMI on
March 15, 2018.
In a January 11, 2019 addendum report, Dr. Dawson reviewed Dr. Smith’s March 15, 2018
report. He noted that Dr. Smith failed to perform any reflex testing so appellant’s deep tendon
reflexes were not tested. Dr. Dawson further indicated that Dr. Smith failed to perform adequate
ROM testing and that he failed to perform straight leg raise testing. He identified the CDX as a
class 1, grade B impairment for the diagnosis of moderate motor deficit under Table 2, page 6 of
The Guides Newsletter, which corresponded to 13 percent permanent impairment of the left lower
extremity. Dr. Dawson also identified the CDX as a class 1 impairment for the diagnosis of
moderate sensory impairment at L5, which corresponded to six percent permanent impairment of

3

the right lower extremity. He again totaled the two impairments and found that appellant had 19
percent permanent impairment of the lower extremities.
On March 12, 2019 appellant, through counsel, requested a schedule award and submitted
a March 6, 2019 report from Dr. Sami Moufawad, a Board-certified specialist in physical medicine
and rehabilitation. Dr. Moufawad reported appellant’s history of injury, provided physical
examination findings, and reviewed her medical record. He found that appellant’s ROM of the
lumbar spine was 15 degrees of forward flexion, 5 degrees of extension, 15 degrees of right-sided
bending, and 10 degrees of left-sided bending. Dr. Moufawad noted that appellant’s straight leg
raising was positive on the left side at 45 degrees with increased numbness and tingling. He
diagnosed lumbar back sprain, coccyx sprain, peripheral enthesopathies, disc bulge at L5-S1, and
left L5 radiculopathy. Dr. Moufawad opined that appellant’s conditions were a result of her
accepted October 14, 2014 employment injury. He found that appellant had reached MMI on
March 6, 2019. Utilizing the DBI method of the sixth edition of the A.M.A., Guides and The
Guides Newsletter, Dr. Moufawad identified the CDX as a class 1 impairment for the diagnosis of
mild motor deficit under Table 2, page 6 of The Guides Newsletter. He assigned a GMFH of 1, in
accordance with Table 16-6, page 516, as appellant had a lower limb questionnaire score of 24.
Dr. Moufawad noted that a GMPE was not applicable since it was used for class determination.
He reported a GMCS of 1, in accordance with Table 16-8, page 519, based on appellant’s EMG
study. Dr. Moufawad calculated that appellant had a net adjustment of 0, resulting in no movement
from the default class of C and corresponding to five percent permanent impairment. Utilizing the
DBI method, he also identified the CDX as a class 1 impairment for the diagnosis of sensory deficit
under Table 2, page 6 of The Guides Newsletter. Dr. Moufawad noted that a GMFH and a GMPE
were not applicable as they were used for class determination. He assigned a GMCS of 1 based
on appellant’s EMG and MRI scan findings, which showed a bulging disc at L5-S1.
Dr. Moufawad calculated that appellant had a net adjustment of 0, resulting in no movement from
the default class of C and corresponding to one percent permanent impairment. He totaled the two
impairments and found that appellant had six percent permanent impairment of the left lower
extremity. Dr. Moufawad attached a lower limb questionnaire completed by appellant with his
report.
On May 3, 2019 appellant filed a claim for a schedule award (Form CA-7).
By decision dated July 12, 2019, OWCP granted appellant a schedule award for two
percent permanent impairment of the left lower extremity based on the opinions of Dr. Katz, the
DMA, and Dr. Smith, the second opinion physician. The award ran for 5.76 weeks for the period
March 15 through April 24, 2018.
On July 19, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated September 6, 2019, OWCP’s hearing representative vacated the July 12,
2019 decision and remanded the case for further development. The hearing representative found
that OWCP failed to forward Dr. Dawson’s January 11, 2019 addendum report and
Dr. Moufawad’s March 6, 2019 report to the DMA for review prior to issuance of the July 12,
2019 decision.

4

On October 31, 2019 OWCP referred appellant’s case, along with an updated SOAF, to
Dr. Katz, the DMA, for a schedule award impairment rating. In a November 9, 2019 report,
Dr. Katz reviewed the updated SOAF and medical record. He opined that a significant conflict of
medical opinion existed as to the presence of motor deficits in the left lower extremity between
Drs. Smith, Dawson, and Moufawad. Dr. Katz noted that Dr. Dawson’s assertion of a severe
sensory deficit appeared to be an outlier. He opined that the conflict could not be resolved on the
basis of a medical records review. Dr. Katz recommended that a referee impairment evaluation be
obtained from a Board-certified specialist in physical medicine and rehabilitation or orthopedic
surgery.
On December 3, 2019 OWCP determined that a conflict of medical opinion existed
between Drs. Dawson, Moufawad, and Smith and referred appellant for an impartial medical
examination in order to resolve the conflict. In a January 7, 2020 report, Dr. Mohammad H.
Zamani, a Board-certified orthopedic surgeon serving as an impartial medical examiner (IME),
noted his review of the SOAF and medical record. He provided physical examination findings
and noted that appellant had full flexion in her bilateral shoulders, bilateral elbows, bilateral wrists,
metacarpophalangeal (MP) joint, proximal interphalangeal (PIP) joint, distal interphalangeal (DIP)
joint, fingers, bilateral hips, and bilateral knees. Dr. Zamani opined that appellant’s accepted
lumbar sprain, coccyx sprain, and peripheral enthesopathies had resolved. He asserted that
appellant’s EMG study and Dr. Dawson’s reports were not reliable. Dr. Zamani further noted that
Dr. Smith’s physical examination was acceptable, but disagreed with his impairment rating
because it was based on the EMG nerve study. He opined that appellant had reached MMI.
Utilizing the sixth edition of the A.M.A., Guides, Dr. Zamani found that appellant had zero percent
permanent impairment as she had no significant pain, weakness, loss of function, loss of
endurance, or muscle atrophy. He reported that appellant’s EMG study that showed radiculopathy
did not correlate with her physical examination and MRI scan findings.
In a January 22, 2020 supplemental report, Dr. Zamani noted that appellant had no ratable
impairment under the sixth edition of the A.M.A., Guides as she had normal physical examination
findings. He disagreed with the opinions of Drs. Dawson and Moufawad and asserted that they
continued to treat appellant unnecessarily for financial gain. Dr. Zamani opined that appellant
never needed any treatment or time off work.
By decision dated February 25, 2020, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
a scheduled member or function of the body. It based its determination on the opinion of
Dr. Zamani, the IME.
On March 3, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on June 11, 2020.
By decision dated August 25, 2020, OWCP’s hearing representative affirmed the
February 25, 2020 decision.

5

LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back/spine or to the body as a whole.9 Furthermore, the back is specifically
excluded from the definition of organ under FECA.10 The sixth edition of the A.M.A., Guides
does not provide a separate mechanism for rating spinal nerve injuries as impairments of the upper
or lower extremities. Recognizing that FECA allows ratings for the extremities and precludes
ratings for the spine, The Guides Newsletter offers an approach to rating spinal nerve impairments
consistent with the sixth edition methodology. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter is to be applied.11 The Board has recognized the adoption of this methodology for
rating extremity impairment as proper in order to provide a uniform standard applicable to each
claimant for a schedule award for extremity impairment originating in the spine.12
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.13 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (February 2013); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
9

See P.B., Docket No. 20-0984 (issued November 25, 2020); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).
10
5 U.S.C. § 8101(19); S.G., Docket No. 19-1859 (issued August 20, 2020); Francesco C. Veneziani, 48 ECAB
572 (1997).
11

Supra note 8 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

12

N.T., Docket No. 20-0667 (issued November 25, 2020); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S.,
Docket No. 13-2011 (issued February 18, 2014).
13

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

6

case.14 When there exist opposing 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.15
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP properly found that a conflict in the medical opinion evidence existed between
appellant’s treating physician, Dr. Moufawad, who found six percent permanent impairment of the
left lower extremity due to motor and sensory deficits and its second opinion physician, Dr. Smith,
who found two percent permanent impairment of the left lower extremity due to mild sensory
deficit without any motor deficit. It properly referred appellant’s case to Dr. Zamani, pursuant to
5 U.S.C. § 8123(a), for an impartial medical examination in order to resolve the conflict in the
medical opinion.16
In January 7 and 22, 2020 reports, Dr. Zamani opined that appellant did not have any
permanent impairment of a scheduled member or function of the body under the sixth edition of
the A.M.A., Guides. However, the Board finds that he did not adequately explain this opinion in
accordance with the relevant standards. In a situation where OWCP secures an opinion from an
impartial medical examiner for the purpose of resolving a conflict in the medical evidence and the
opinion from such examiner requires clarification and/or elaboration, OWCP has the responsibility
to secure a supplemental report from the examiner for the purpose of correcting the defect in the
original opinion.17
In his January 7, 2020 report, Dr. Zamani opined that all of appellant’s accepted medical
conditions stemming from her October 14, 2014 employment injury had resolved. The Board
notes, however, that he failed to adequately explain how and when those conditions had resolved.18
Dr. Zamani acknowledged appellant’s July 20, 2015 EMG nerve study, which revealed left L5
lumbar radiculopathy, but he did not adequately explain why he found that it was not reliable. He
simply noted that there was no detail and that the EMG only evaluated appellant’s gluteal muscle.
However, the July 20, 2015 EMG study specifically noted that a monopolar needle electrode was
used to examine selected muscles along the lower limbs, gluteal, and lumbar muscles on both
sides. It further showed evidence of denervation along the L5 distribution. Furthermore,
Dr. Zamani failed to provide any discussion of the relevant portion of the sixth edition of the
A.M.A., Guides governing this type of permanent impairment. He did not discuss the standards
14

20 C.F.R. § 10.321; see also R.C., 58 ECAB 238 (2006).

15

P.B., supra note 9; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

16

W.C., Docket No. 19-1740 (issued June 4, 2020).

17

Supra note 8 at Chapter 2.808.6(f) (February 2013); see also R.A., Docket No. 19-0288 (issued July 12, 2019);
Tommy R. Martin, 56 ECAB 273 (2005).
18

See P.B., supra note 9.

7

of The Guides Newsletter, the above-described FECA-approved methodology, which is premised
on permanent impairment stemming from radiculopathies affecting the lower extremities and did
not calculate any permanent impairment as he found that appellant’s employment-related
conditions had resolved without residuals.19 Dr. Zamani further failed to specifically address
Dr. Moufawad’s March 6, 2019 report and impairment rating.
In his January 22, 2020 supplemental report, Dr. Zamani indicated that appellant had no
ratable impairment in accordance with the sixth edition of the A.M.A., Guides and that “all
calculation [was] 10 to 0.” The Board finds that Dr. Zamani again failed to adequately explain his
opinion in accordance with the relevant standards, including The Guides Newsletter.20 Dr. Zamani
further asserted that Drs. Dawson and Moufawad treated appellant unnecessarily for financial gain
and opined that appellant never needed any treatment or time off work. The Board finds that
Dr. Zamani provided insufficient medical rationale to support his conclusory opinion. Dr. Zamani
failed to address Drs. Dawson and Moufawad’s assessments of sensory and motor deficits and did
not specifically comment on their determination of CDX, grade modifiers, net adjustment, and
total impairment rating.
For the above-described reasons, the opinion of Dr. Zamani is insufficient to resolve the
continuing conflict in the medical opinion evidence. The Board will, therefore, remand the case
to OWCP for referral of the case record, a SOAF, and appellant to a new IME for the purposes of
evaluating whether she has permanent impairment of her extremities, warranting a schedule
award.21 After this and other such further development as deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

19

Id.

20

Id.

21
See K.W., Docket No. 20-0047 (issued November 12, 2020); K.C., Docket No. 18-0234 (issued
September 14, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 1, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.N., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0160
Issued: April 6, 2016

Case Submitted on the Record

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

JURISDICTION
On November 3, 2015 appellant, through counsel, filed a timely appeal from an
October 22, 2015 merit decision 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 merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he has more
than nine percent binaural hearing loss.

1

On appeal counsel asserts that he is also appealing a July 2, 2015 OWCP decision accepting appellant’s claim
for bilateral hearing loss. He contends that OWCP should have also accepted tinnitus as employment related. The
Board’s jurisdiction, however, extends only to reviewing final adverse decisions of OWCP. 20 C.F.R. §§ 501.2(c)
and 501.3(a). The July 2, 2015 decision is not adverse to appellant and, thus it is not appealable to the Board.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 28, 2014 appellant, then a 66-year-old auto mechanic, filed an occupational
disease claim (Form CA-2) alleging that he sustained severe hearing loss due to noise exposure
from compressors, air guns, and equipment during the course of his federal employment. He did
not stop work.
On September 26, 2014 OWCP requested that appellant submit additional factual and
medical information in support of his claim, including a detailed description of his history of
noise exposure.
By decision dated November 6, 2014, OWCP denied appellant’s claim, finding that he
had not factually established the occurrence of the identified work factors or submitted any
supporting medical evidence. It noted that he had not responded to its request for further
evidence in support of his claim.
On January 28, 2015 OWCP received the results of audiological testing and evaluations
performed from 1992 to 2014 by the employing establishment as part of a hearing conservation
program.
In a statement dated March 6, 2015, appellant described his noise exposure at the
employing establishment from 1977 until January 2, 2015, the date he retired from employment.
In a report dated March 6, 2015, Dr. Kenneth B. Briskin, a Board-certified
otolaryngologist, diagnosed an impacted cerumen and bilateral sensorineural hearing loss. He
provided the results of audiological testing.
On March 11, 2015 appellant, through counsel, requested reconsideration.
On April 24, 2015 OWCP referred appellant, together with a statement of accepted facts,
to Dr. Emil P. Liebman, a Board-certified otolaryngologist, for a second opinion examination.
In a report dated June 16, 2015, Dr. Liebman discussed appellant’s complaints of hearing
loss and “occasional intermittent tinnitus bilaterally.” He diagnosed hearing loss causally related
to noise exposure at work. Dr. Liebman interpreted the results of audiological testing conducted
that date as showing “bilateral symmetrical high-frequency sensorineural hearing loss with good
discrimination scores bilaterally.” Audiometric testing for the left ear at the frequency levels of
500, 1,000, 2,000, and 3,000 Hertz (Hz) demonstrated decibel (dB) losses of 15, 35, 45, and 50
dBs, respectively. Audiometric testing for the right ear at the same frequency levels revealed dB
losses of 10, 25, 35, and 50, respectively. Citing the formula from the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), Dr. Liebman found that appellant had 7.5 percent hearing loss in the right ear, 16.8
percent hearing loss in the left ear, and 9.4 percent binaural hearing loss.
In a decision dated July 2, 2015, OWCP vacated its November 6, 2014 decision and
accepted appellant’s claim for binaural hearing loss due to noise exposure.

2

On July 24, 2015 appellant filed a claim for a schedule award (Form CA-7). On July 28,
2014 an OWCP medical adviser reviewed Dr. Liebman’s June 16, 2015 report and audiometric
test results. For the right ear, he totaled the 500, 1,000, 2,000, and 3,000 Hz, dB losses of 10, 25,
35, and 50 to equal 120. The medical adviser divided by 4 to find that appellant had an average
hearing loss of 30 dBs. He then subtracted the fence of 25 dBs and multiplied the balance of 5
by 1.5, resulting in 7.5 percent monaural hearing loss for the right ear. For the left ear, the
medical adviser added the dB losses of 15, 35, 45, and 50 to find 145, or an average loss of 36.25
dBs. After subtracting a fence of 25 dBs, he multiplied the remaining balance of 11.25 by 1.5 to
find 16.88 percent left monaural hearing loss. The medical adviser calculated the binaural
hearing loss by multiplying the lesser loss of 7.5 in the right ear by 5, then adding the greater left
ear loss of 16.88 and dividing by 6 to find 9.07 percent binaural hearing loss. He advised that
OWCP should authorize hearing aids. The medical adviser determined that the test results
obtained by Dr. Liebman were consistent and concurred with his findings. He opined that
appellant reached maximum medical improvement on June 2, 2015.
On August 5, 2015 appellant’s counsel questioned why the OWCP medical adviser did
not provide an impairment rating for tinnitus in calculating the extent of his permanent
impairment. He submitted a statement from appellant dated March 6, 2015 describing his
symptoms of tinnitus and its interference with his daily activities.
On October 16, 2015 OWCP requested that the medical adviser consider whether the
impairment rating should be adjusted for tinnitus. On October 20, 2015 the medical adviser
found that Dr. Liebman had increased appellant’s binaural hearing loss impairment rating from
9.07 percent to 9.4 percent for tinnitus.
By decision dated October 22, 2015, OWCP granted appellant a schedule award for nine
percent binaural hearing loss. The period of the award ran for 18 weeks from June 2 to
October 5, 2015.
On appeal appellant’s counsel asserts that OWCP erred in failing to accept tinnitus and in
interpreting Dr. Liebman’s opinion as including a rating for tinnitus. He contends that the
medical adviser did not explain why he believed that Dr. Liebman provided a rating for tinnitus.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted

3

Id. at § 8107.

4

20 C.F.R. § 10.404.

3

the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
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. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury.9 If tinnitus interferes with activities of daily
living, including sleep, reading and other tasks requiring concentration, enjoyment of quiet
recreation, and emotional well being, up to five percent may be added to a measurable binaural
hearing impairment.10
ANALYSIS
OWCP accepted that appellant sustained binaural hearing loss due to noise exposure
based on the June 16, 2015 report of Dr. Liebman, who provided a second opinion examination.
Dr. Liebman noted that he complained of hearing loss and periodic tinnitus. He diagnosed
hearing loss due to noise exposure and concluded that appellant had an impairment due to
hearing loss of 7.5 percent on the right, 16.8 percent on the left, and 9.4 percent binaural hearing
loss. Dr. Liebman referenced the A.M.A., Guides in reaching his impairment rating, but did not
set forth his calculations or indicate whether he was providing an additional award for tinnitus.
On July 28, 2014 an OWCP medical adviser reviewed Dr. Liebman’s report and
audiogram. He found that testing of the right ear at the frequencies of 500, 1,000, 2,000, and
3,000 Hz revealed losses of 10, 25, 35, and 50 dBs, which he added to total 120. The medical
adviser divided by 4 to find an average loss of 30, from which he deducted the threshold fence of
25 dBs to find a balance of 5. He multiplied 5 by 1.5 to find 7.5 percent monaural loss. For the
5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 250.

8

See J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

9

See A.M.A., Guides 249.

10

Id.; see also R.H., Docket No. 10-2139 (issued July 13, 2011).

4

left ear, the medical adviser found that appellant had losses of 15, 35, 45, and 50 dBs at the
frequencies 500, 1,000, 2,000, and 3,000 Hz, for a total of 145 and an average loss of 36.25.
Subtracting the fence of 25 dBs yielded a balance of 11.25, which he multiplied by 1.5 to find
16.88 percent monaural loss. To obtain the binaural loss, the medical adviser multiplied the
lesser loss of 7.5 by 5, which he added to the greater loss of 16.88 and divided by 6 to find 9.07
percent binaural loss.
On October 16, 2015 OWCP requested that the medical adviser determine whether
appellant had a greater binaural hearing loss as the result of tinnitus. In an October 20, 2015
response, he indicated that Dr. Liebman had increased the impairment rating from 9.07 percent
to 9.4 percent due to tinnitus.
The Board finds that this case is not in posture for a decision as clarification is required
from Dr. Liebman regarding whether he added an impairment rating for tinnitus. The A.M.A.,
Guides states that “tinnitus in the presence of unilateral or bilateral hearing impairment may
impair speech discrimination. Therefore, add up to five percent for tinnitus in the presence of
measurable hearing loss if the tinnitus impacts the ability to perform the activities of daily
living.”11 It is not clear whether Dr. Liebman added a rating for tinnitus as he did not explain
how he arrived at his impairment rating.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done. As OWCP undertook development of the evidence by referring appellant to a
second opinion physician, it has the duty to secure an appropriate report addressing the relevant
issues.12 As Dr. Liebman did not explain whether he included tinnitus in his impairment rating
for appellant’s hearing loss, the case will be remanded to OWCP to request a supplemental report
from the physician. Following this and any necessary further development, OWCP shall issue an
appropriate decision regarding to the extent and degree of appellant’s hearing impairment.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

A.M.A., Guides 249; see also V.D., Docket No. 13-331 (issued August 12, 2013).

12

See D.W., Docket No. 14-931 (issued August 11, 2014); Peter C. Belkind, 56 ECAB 580 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: April 6, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Mark Cody, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1415
Issued: December 22, 2008

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 April 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 6 and September 28, 2007 merit decisions denying her claim
for a January 2, 2002 employment injury. 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 her burden of proof to establish that she sustained an
injury in the performance of duty on January 2, 2002.
FACTUAL HISTORY
On January 26, 2002 appellant, then a 61-year-old clerk, filed a traumatic injury claim
alleging that she sustained injury to the back of her head due to a fall at work on January 2, 2002.
She indicated that she fainted and fell while unconscious and did not remember the fall.
Appellant experienced head pain and dizziness after the fall. She advised that she arrived at
work at 4:00 a.m. and was sorting mail between 7:00 and 7:30 a.m. when she suddenly fell to the

floor. Appellant indicated that her mail sorting activities required bending over or stooping
down and then bending back up or raising herself up.1
On January 17, 2002 Dr. Will North, an attending Board-certified neurologist, stated that
on January 2, 2002 appellant was engaged in frequent stooping and bending. Following a
transition from squatting to a standing position, she felt lightheaded and passed out. Appellant
related that she did not have any chronic medical conditions. Dr. North stated that she sustained
a left occipital scalp hematoma due to the fall and noted that she reported chronic mild
lightheadedness and dizziness since that time. On examination, appellant’s recumbent blood
pressure was 116/60 with a pulse of 72. Dr. North diagnosed “syncope secondary to orthostatic
hypotension” and stated, “I think [appellant’s] loss of consciousness is most likely in the basis of
lowered cerebral profusion following a transition in posture.” He saw no evidence of a primary
cardiac or neurologic process. Dr. North recommended that appellant drink regularly and to do
aerobic exercise to help with neural and arterial tone and avoid future events.
On March 25, 2002 Dr. Rosa Melgar, an attending Board-certified occupational medicine
physician, stated that she first saw appellant on January 7, 2002. She obtained a history that on
January 2, 2002 appellant was sorting mail and suddenly lost consciousness and fell to the floor.
Appellant denied having a prior history of loss of consciousness. An examination on January 7,
2002 revealed positive soft tissue swelling on the back of her head and tenderness over her left
inferior rib cage area. Dr. Melgar diagnosed “syncope (loss of consciousness) as well as head
contusion with headache, right jaw pain, left rib cage pain.” She stated, “I explained to the
patient at that time that the cause of her accident was syncope which was not work-related, but
was coincidental that it had happened at work.”
On April 10, 2002 Dr. Cynthia Chin, an attending Board-certified internist, stated that
appellant was initially seen on January 2, 2002 after passing out at work. Appellant was seen at
Kaiser Permanente on January 8, 2002 and reported that she had not eaten much on
January 2, 2002. She squatted from a standing position and then passed out. Appellant was
discovered by coworkers and found to have a small left occipital scalp hemotoma. Dr. Chin
indicated that neurological evaluation revealed that the loss of consciousness was from
orthostatic hypotension. Appellant underwent a magnetic resonance imaging test which revealed
only small vessel ischemic disease of the brain and her neurological examination on March 26,
2002 was normal. Dr. Chin indicated that appellant was recovering with a postconcussive
syndrome and continued to complain of throbbing head pressure and imbalance in walking. She
stated, “Most likely, [appellant’s] syncope was due to orthostatic hypotension, perhaps
contributed by not eating and drinking fluids regularly.” Dr. Chin recommended light-duty work
for one or two months.
In an April 29, 2002 decision, the Office denied appellant’s claim that she sustained an
injury in the performance of duty on January 2, 2002. It found that the medical evidence showed
that she sustained an idiopathic fall on January 2, 2002 because she fainted and fell due to
orthostatic hypotension, a personal, nonoccupational pathology and did not strike an intervening
object before striking the floor.
1

Medical reports from around the time of the January 2, 2002 show that appellant reported that she fainted while
she was sorting mail.

2

Appellant requested a hearing before an Office hearing representative. At the
November 15, 2006 hearing, she contended that she sustained an employment injury on
January 2, 2002 because the activity of bending and stopping contributed to her fall. Appellant
ate breakfast before reporting for work on January 2, 2002.
In a February 6, 2007 decision, the Office hearing representative affirmed the April 29,
2002 decision. She found that the medical evidence established that appellant fell on January 2,
2002 due to the idiopathic condition of orthostatic hypotension.
Appellant submitted an August 6, 2007 report of Dr. Parvez Fatteh, an attending
physician Board-certified in physical medicine and rehabilitation. Dr. Fatteh had treated
appellant for her January 2, 2002 fall and posited that it was of industrial causation as Dr. North
had diagnosed “syncope secondary to orthostatic hypotension,” with loss of consciousness
“following a transition in posture.” He indicated that the medical records “paint the picture of
[appellant] being engaged in physical movements, including squatting, that occurred during the
course of her work for the [employing establishment], resulting in a fall that arose out of her
employment.” Dr. Fatteh advised that appellant sustained a left occipital hematoma due to the
fall and she continued to complain of neck pain, occipital headaches, periodic nausea and
vomiting and other symptoms consistent with the diagnosis of postconcussive disorder. He
noted that appellant did not have these symptoms prior to the January 2, 2002 fall and stated, “I
therefore opine that [appellant’s] fall and resultant postconcussive disorder were 100 percent
caused by the fall that occurred … on January 2, 2002.”
In a September 28, 2007 decision, the Office affirmed its February 6, 2007 decision
indicating that appellant sustained an idiopathic fall on January 2, 2002 and did not strike an
intervening object before striking the floor.
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act2 has
the burden of establishing the essential elements of her claim.3 The claimant has the burden of
establishing by the weight of reliable, probative and substantial evidence that the condition for
which compensation is sought is causally related to a specific employment incident or to specific
conditions of the employment. As part of this burden, the claimant must present rationalized
medical opinion evidence, based upon a complete and accurate factual and medical background,
establishing causal relationship.4 However, it is well established that proceedings under the Act
are not adversarial in nature, and while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.5

2

5 U.S.C. §§ 8101-8193.

3

Ruthie Evans, 41 ECAB 416, 423-24 (1990); Donald R. Vanlehn, 40 ECAB 1237, 1238 (1989).

4

Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

5

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

3

It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface and there is no intervention or contribution by any hazard or special condition of
employment -- is not within the coverage of the Act. Such an injury does not arise out of a risk
connected with the employment and, therefore, it is not compensable.6 The question of causal
relationship in such cases is a medical one, and must be resolved by medical evidence.7
ANALYSIS
Appellant claimed that she sustained an employment injury on January 2, 2002 when she
struck her head after fainting and falling to the floor. The Office denied her claim determining
that she sustained a noncompensable idiopathic fall because she fainted and fell due to
orthostatic hypotension, a personal, nonoccupational pathology and she did not strike an
intervening object before striking the floor.
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in indicating that employment factors contributed, at
least in part, to appellant’s fall on January 2, 2002. Several attending physicians indicated that
appellant fainted and fell on January 2, 2002 due to the condition of orthostatic hypotension.
The condition of orthostatic hypotension is defined as an excessive fall in blood pressure on
assuming the upright position.8 In the present case, the record reveals that prior to fainting
appellant engaged in mail sorting activities which required bending over or stooping down and
then raising herself up. Appellant’s attending physicians made note of the involvement of these
activities when they provided their diagnoses.
For example, Dr. North, an attending Board-certified neurologist, stated on January 17,
2002 that appellant suffered “syncope secondary to orthostatic hypotension” on January 2, 2002
and noted, “I think [appellant’s] loss of consciousness is most likely in the basis of lowered
cerebral profusion following a transition in posture.” In an April 10, 2002 report, Dr. Chin
reported appellant’s history of body movement on January 2, 2002 and indicated that most likely
her syncope was due to orthostatic hypotension.9 In an August 6, 2007 report, Dr. Fatteh, an
attending physician Board-certified in physical medicine and rehabilitation, posited that
appellant’s January 2, 2002 fall was of industrial causation in that Dr. North diagnosed her with
“syncope secondary to orthostatic hypotension,” with loss of consciousness occurring “following
a transition in posture.” He indicated that the medical records “paint the picture of [appellant]
being engaged in physical movements, including squatting, that occurred during the course of

6

Robert J. Choate, 39 ECAB 103, 106 (1987).

7

Amrit P. Kaur, 40 ECAB 848, 853 (1989). The term “injury” as defined by the Act, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to, or contact with, certain factors,
elements or conditions. John D. Williams, 37 ECAB 238, 240 (1985).
8

The Merck Manual, 434 (16th ed. 1992).

9

Dr. Chin stated that appellant’s eating and drinking habits might have also contributed to the syncope.

4

her work for the [employing establishment], resulting in a fall that arose out of her
employment.”10
The Board notes that given the fact that the reports of appellant’s attending physicians
show that employment activities at least partially contributed to her fainting and falling on
January 2, 2002, it appears inappropriate for the Office to have characterized her January 2, 2002
incident as solely idiopathic in nature, i.e., entirely due to a personal, nonoccupational
pathology.11 The reports of appellant’s attending physicians are not contradicted by any
substantial medical or factual evidence of record.12 Therefore, while the reports are not
sufficient to meet her burden of proof to establish her claim,13 they raise an uncontroverted
inference that employment factors contributed to appellant’s fainting and falling on January 2,
2002 and are sufficient to require the Office to further develop the medical evidence and the case
record.14
Accordingly, the case will be remanded to the Office for further evidentiary development
regarding the issue of whether appellant sustained an employment-related injury on
January 2, 2002 and, if so, whether she sustained any periods of disability due to such injury.
After such development as the Office deems necessary, an appropriate decision should be issued
on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty on January 2, 2002. The case is remanded to the
Office for further development to be followed by an appropriate decision.

10

Several physicians indicated that appellant sustained a left occipital hematoma due to the fall.

11

See supra note 6 and 7 and accompanying text.

12

On March 25, 2002 Dr. Melgar, an attending Board-certified occupational medicine physician, indicated that on
January 2, 2002 appellant sustained a syncope, i.e., a loss of consciousness, which “was not work-related.”
However, she did not identify any nonwork-related cause of the syncope and she provided no opinion that
appellant’s moving down and up while sorting mail did not contribute to it. The Board further notes that there is no
evidence that appellant had problems with persistent low blood pressure prior to or after January 2, 2002.
13

The Board notes that the attending physicians did not fully explain the medical process through which
appellant’s mail sorting activities contributed to her sustained orthostatic hypotension.
14

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 28 and February 6, 2007 decisions are set aside and the case remanded to the Office
for further proceedings consistent with this decision of the Board.
Issued: December 22, 2008
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

6