United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, East Elmhurst, NY,
Employer
__________________________________________

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

Docket No. 09-280
Issued: October 16, 2009

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 November 7, 2008 appellant filed a timely appeal from an August 14, 2008 decision
of the Office of Workers’ Compensation Programs, which found an overpayment for which she
was at fault.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these
issues.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $11,073.87 for the period January 19, 2006 through February 16,
2008; and (2) whether it properly determined that she was at fault in the creation of the
overpayment; precluding waiver of recovery.

1

The record also contains a July 22, 2008 wage-earning capacity decision. However, appellant did not appeal
this decision.

FACTUAL HISTORY
On October 29, 2003 appellant, then a 40-year-old transportation security screener and
part-time employee, sustained injury when she picked up a heavy suitcase and felt a pop in her
low back. She stopped work on November 15, 2003.2 The Office accepted the claim for a
lumbar sprain. In a claim for compensation, Form CA-7, received on January 21, 2004, the
employing establishment noted that appellant worked 64 hours biweekly. Appellant returned to
limited-duty work on March 24, 2004.
On January 19, 2006 the employing establishment informed the Office that it was unable
to identify productive work within appellant’s medically defined restrictions and withdrew
appellant’s light-duty position. The Office accepted appellant’s claim for a recurrence of
disability on January 19, 2006 and referred her to vocational rehabilitation.
On February 8, 2006 appellant was placed on the periodic rolls. The Office informed
appellant that her compensation was based on a weekly rate of pay of $605.63 and that, after
appropriate deductions, she would receive a net amount of $1,528.83 in compensation every 28
days. Appellant was also advised that her compensation benefits for total disability beginning
January 19, 2006, would continue as long as the medical evidence supported her inability to
work due to her work injury. The Office also advised her that her compensation would be
terminated when she had earnings equal to or higher than the wages being paid for the job she
held when injured.
On February 26, 2008 the Office noted that appellant had been erroneously paid wage
loss based on a 40-hour workweek. Benefits were corrected to reflect that she worked six hours
per day before she became disabled.
In a letter dated March 4, 2008, the Office informed appellant that her weekly rate of pay
was $454.22 per week and that, after appropriate deductions, she would receive a net amount of
$1,153.94 every 28 days. In a March 3, 2008 memorandum, it noted that compensation was
based on an hourly rate of $15.09 multiplied by 30 hours per week. The Office determined that
appellant’s gross weekly rate of pay was $454.22.
On March 19, 2008 the Office made a preliminary determination that appellant received
an $11,073.87 overpayment of compensation because she received wage-loss compensation
based on a 40-hour workweek. It noted that appellant received compensation from January 19,
2006 through February 16, 2008 based on a 40-hour workweek with a weekly rate of pay of
$605.63. However, she was only entitled to payment for 30 hours per week with a weekly rate
of pay of $454.22. From January 19, 2006 through February 16, 2008, appellant received a net
compensation payment of $41,995.44 but was only entitled to wage-loss compensation of
$30,921.57. The difference resulted in an overpayment of $11,073.87. The Office found that
appellant was with fault in the creation of the overpayment because she accepted a payment,
which she knew or reasonably should have known to be incorrect. Appellant was informed of
her right to challenge the Office’s finding.
2

The employing establishment noted that appellant was a part-time employee who worked 64 hours biweekly.

2

In a memorandum of telephone call dated March 20, 2008, appellant contacted the Office
to inquire into the formula that was utilized to determine her hourly pay rate.
In a letter dated March 22, 2008, appellant disagreed with the overpayment and
faultfinding. She contended that she had no knowledge that an overpayment had occurred
because she relied upon the employing establishment and the human resources department.
Appellant denied having any knowledge that the payments were incorrect. She noted that the
overpayment was based on 30 hours per week, but she worked 32 hours per week. Appellant
requested a waiver of the overpayment. She completed the Form OWCP-20, and provided
financial information supporting a request for waiver.
In a decision dated August 14, 2008, the Office finalized its preliminary findings on the
fact and amount of overpayment. It found that appellant was with fault because she accepted a
payment that she knew or reasonably should have known was incorrect. The Office noted that
appellant had submitted her financial information, but indicated that there was no allowance for
waiver, since appellant was found to be with fault. Appellant was requested to forward a check
in the amount of $11,073.87 to the Office.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of her duty.3 When an overpayment has been made to an individual
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.4
ANALYSIS -- ISSUE 1
The record indicates that appellant received an overpayment from January 19, 2006 to
February 16, 2008. Appellant received compensation for a 40-hour workweek; however, she
was a part-time employee and was only entitled to receive payments based on her working 32
hours per week. The Office’s records clearly show that appellant’s compensation was based on
her being a 40-hour per week employee while records from the employing establishment clearly
establish that appellant was a part-time employee. Consequently, the Board finds that appellant
received an overpayment of compensation from January 19, 2006 to February 16, 2008.
The Board notes that for the period January 19, 2006 through February 16, 2008, the
Office’s payment records establish that appellant received $41,995.44 in compensation for total
disability. In calculating the amount of the overpayment, the Office determined that appellant
was only entitled to receive compensation based on a 30-hour workweek. Based on this, it
determined that appellant received an overpayment of $11,073.87. However, the Board notes
that records from the employing establishment, a Form CA-7 received on January 21, 2004,
support that appellant was actually working a 32-hour workweek. Appellant also asserts that her
3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

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workweek was 32 hours, not 30 hours. In view of the evidence supporting that appellant’s
compensation should be based on a 32-hour workweek, the Board finds that the case is not in
posture for a decision with regard to the amount of the overpayment. On remand, the Office
shall conduct such further development as it deems necessary and recalculate the amount of the
overpayment.5
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation. However, the case is not in posture for decision regarding the
amount of the overpayment and whether appellant was at fault in creating the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2008 decision is affirmed in part
and remanded in part for further action consistent with this decision.
Issued: October 16, 2009
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

5

In view of the Board’s disposition on the amount of the overpayment, it is premature to address the Office’s
finding that appellant was at fault in creating the overpayment under 20 C.F.R. § 10.433(a)(3) since a change in the
amount of the overpayment may impact a fault finding under that standard.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0001
Issued: July 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On October 1, 2014 appellant, through counsel, filed a timely appeal from a
September 25, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 29, 2013 as she had no further residuals causally related to her
November 28, 2011 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. In a February 18, 2014 decision, the
Board affirmed OWCP’s June 19 and August 14, 2013 merit decisions finding that OWCP met

1

5 U.S.C. § 8101 et seq.

its burden of proof to terminate appellant’s compensation benefits effective June 29, 2013.2 The
findings and facts as set forth in the prior decision are herein incorporated by reference. The
relevant facts are set forth below.
OWCP has accepted that on November 28, 2011 appellant, then a 43-year-old rural
carrier associate, sustained multiple injuries after she was delivering mail and was involved in a
motor vehicle accident (MVA) when the front of her long life vehicle (LLV) hit a vehicle on the
right hand side. By decisions dated January 18 and April 9, 2012, it accepted the claim for
contusion of the right knee and lower leg, sprain of back thoracic region, sprain of back lumbar
region, and sprain of neck.
Appellant sought treatment with Dr. Brad Prybis, a Board-certified orthopedic surgeon.
By letter dated September 19, 2012, OWCP requested that he provide an updated report on her
continued treatment, as it had been 10 months since the injury and strains typically resolved
within 6 to 8 weeks. No response was received.
On October 29, 2012 OWCP referred appellant, the case record, a statement of accepted
facts (SOAF), and a series of questions to Dr. Alexander Doman, a Board-certified orthopedic
surgeon, for a second opinion examination.
In a December 10, 2012 report, Dr. Doman reviewed the SOAF and medical record. He
noted that appellant was in an MVA on November 28, 2011 and also had a history of a 2009
work-related MVA. Dr. Doman reported that she complained of continued neck and low back
pain. X-rays of the lumbar and cervical spine were taken, as well as nerve conduction studies of
the upper right extremity. Diagnostic testing revealed cervical and lumbar degenerative disc
disease. Dr. Doman stated that the thoracic sprain had resolved and appellant had subjective
complaints of cervical and lumbar pain consistent with a condition of degenerative disc disease
of the cervical and lumbar spine. He reported that she no longer suffered from a strain of the
cervical, thoracic, and lumbar areas. Dr. Doman further stated that the degenerative disc disease
had developed over many years and was not related to the November 28, 2011 MVA. He
concluded that appellant’s mild degenerative disc disease of the cervical spine may have been
aggravated by the MVA but was temporary in nature and would have ceased within three
months.
OWCP notified appellant on December 17, 2012 that it proposed to terminate her
compensation benefits based on Dr. Doman’s opinion that she no longer had any residuals or
disability connected to her November 28, 2011 employment injury. It further noted that her
current diagnosis of degenerative disc disease was not related to her November 28, 2011 injury.
Appellant was provided 30 days to submit additional information.
Medical reports were submitted dated September 17, 2012 to May 9, 2013 from
Dr. Prybis. In a November 9, 2012 medical report, Dr. Prybis reported that appellant’s current
diagnoses were cervical spondylotic pain, myofascitis, and radiculitis with objective findings.
He reported that her current symptoms were related to the November 28, 2011 injury because she
did not experience these symptoms prior to her injury. Dr. Prybis further noted that appellant’s
2

Docket No. 13-1960 (issued February 18, 2014).

2

acute strain had resolved but she continued to have chronic myofascitis involving the
cervicothoracic region. In a February 6, 2013 report, he opined that her cervical strain and disc
degeneration with neck and shoulder pain were due to cervical radiculitis. In a May 1, 2013
medical report, Dr. Prybis provided diagnoses of cervical sprain, cervical radiculopathy, cervical
intervertebral disc degeneration, lumbar strain, and lumbosacral spondylosis. He noted that
appellant’s symptoms were aggravated with lifting, twisting, sitting, and neck movements.
OWCP found a conflict in medical opinion between Dr. Prybis and Dr. Doman. The
record contains a March 5, 2013 ME023, appointment schedule notification, and bypass history
report documenting the selection of Dr. Howard Krone, a Board-certified orthopedic surgeon, for
an impartial referee medical examination to resolve the conflict between Dr. Prybis and
Dr. Doman.
By letter dated March 12, 2013, OWCP informed Dr. Krone that appellant was being
referred for a referee examination due to a conflict in medical evidence. It explained that
Dr. Doman found that her accepted work-related conditions had ceased while Dr. Prybis opined
that she continued to suffer from cervical conditions related to the November 28, 2011 MVA.
OWCP referred appellant, a SOAF, the case file, a medical conflict statement, and a
series of questions to Dr. Krone for his April 10, 2013 evaluation. The SOAF stated that her
claim was accepted for contusion of the left knee and a thoracic, cervical, and lumbar strain.
The questions provided to Dr. Krone for the referee examination were as follows:
“(1) Is [appellant] currently suffering from a cervical condition? If yes what is
her diagnosis and what objective findings support this diagnosis?
“(2) Is her current condition related to the car accident on November 28, 2011?
Please explain why you feel it is or is not related.
“(3) [Appellant’s] claim was originally accepted for a cervical, thoracic, and
lumbar strain. It has been over a year since her accident. Does [appellant]
continue to suffer from a strain to any of these areas? If yes, can you explain why
she would continue to have a strain since it has been over a year since this injury
occurred.
“(4) It is noted that [appellant] had underlying conditions of mild degeneration
from C4 to C7, moderate spondylosis at C6-7 with moderate foraminal stenosis
bilaterally. If you feel the accident on November 28, 2011, aggravated these
preexisting conditions, was it a temporary or permanent aggravation? If
temporary when would the aggravation cease and [appellant] return to her
baseline condition.
“(5) In your opinion does [appellant] suffer from headaches related to her cervical
condition?
“(6) When do you feel [appellant] will reach maximum medical improvement?”

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In his April 10, 2013 medical report, Dr. Krone provided a summary of appellant’s past
medical reports, reviewed previous diagnostic studies, and provided findings on physical
examination. He noted that she was involved in a November 28, 2011 MVA when she T-boned
another vehicle. Appellant struck her right knee at the time and complained of pain in her neck,
thoracic, and lower back regions. She had a prior work-related MVA in 2009 for which she had
mild low back pain and responded well to physical therapy. Dr. Krone noted that examination of
the knees and neurologic examination of the upper left and lower extremities was normal. He
noted preexisting degenerative osteoarthritic changes of the cervical spine, primarily at C6-7, and
of the lumbar spine at L5-S1 which predated her work-related accident. Dr. Krone agreed with
the opinion of Dr. Doman and found no objective findings of any disability related to the
November 28, 2011 MVA. He opined that appellant did not continue to suffer from a strain to
the cervical, thoracic, or lumbar spine and that her symptoms should have resolved with
treatment after six to eight weeks. Dr. Krone further concluded that the November 28, 2011
incident did not aggravate the preexisting degenerative disc disease at C6-7.
By decision dated June 19, 2013, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective June 29, 2013 as the weight of the medical evidence rested with
Dr. Krone who found that she did not continue to experience residuals of her work-related injury.
It noted that her current conditions were preexisting and not related to the November 28, 2011
work injury.
Appellant requested reconsideration of OWCP’s decision on July 29, 2013. In support of
her request, she submitted a July 30, 2013 report from Dr. Prybis.
In his July 30, 2013 medical report, Dr. Prybis reported that appellant’s current condition
was right C7 radiculopathy and that her current symptoms and condition were related to the
November 28, 2011 work injury. He noted that she had this condition since November 28, 2011
with no preexisting symptoms of radiculopathy including no pain, numbness, or weakness in her
neck or arm. Dr. Prybis stated that appellant had stenosis which was degenerative at C6-7.
Despite her degenerative magnetic resonance imaging scan findings, appellant had no symptoms
prior to her injury and continued to experience pain, numbness, and weakness in the neck and
arm and right C7 radiculopathy. Dr. Prybis concluded that her current conditions and symptoms
were secondary to the November 28, 2011 work injury.
By decision dated August 14 2013, OWCP affirmed its June 19, 2013 decision
terminating compensation benefits. It noted that the weight of the medical evidence rested with
Dr. Krone’s report which established that the injury and related residuals had resolved.3
On August 28, 2013 appellant requested an appeal before the Board. The appeal was
docketed as 13-1960.4
3

The Board notes that OWCP initially issued a decision affirming the June 19, 2013 decision terminating benefits
on August 9, 2013. Because Dr. Prybis’ July 30, 2013 report was not reviewed in the August 9, 2013 decision,
OWCP reissued a decision on August 14, 2013 affirming the June 19, 2013 decision after review of the medical
report.
4

Supra note 2.

4

During the pendency of appellant’s appeal before the Board, on December 3, 2013
Martin Kaplan, Esquire entered his appearance as appellant’s counsel.
By letter dated January 15, 2014, counsel for appellant requested that OWCP reconsider
its June 19 and August 14, 2013 decisions and provided arguments in support of his
reconsideration request. He alleged that Dr. Krone had been asked leading questions, that he had
been provided factually incorrect information via the questions he was asked, and that Dr. Krone
had been improperly provided a copy of the proposed notice of termination dated
December 17, 2012. Counsel also noted that Dr. Krone’s report was unsigned.
By letter dated January 28, 2015, OWCP informed counsel that no action could be taken
as to the request for reconsideration as the case was on appeal before the Board.
As previously noted, in a February 18, 2014 decision, the Board affirmed OWCP’s
June 19 and August 14, 2013 merit decisions finding that OWCP met its burden of proof to
terminate appellant’s compensation benefits effective June 29, 2013.5 The Board found that
Dr. Krone’s opinion was entitled to the special weight of an impartial medical examiner and
established that appellant no longer had residuals or disability related to her accepted workrelated injuries. The Board stated that Dr. Krone had provided a rationalized medical
explanation, based upon objective findings, that the residuals of appellant’s accepted neck,
thoracic, and lumbar sprains, had ceased, and appellant had not established that her preexisting
degenerative disc disease was causally related to the accepted injury.
By letter dated March 7, 2014, counsel for appellant filed a petition for reconsideration
with the Board. He argued that the Board’s February 18, 2014 decision improperly relied on the
report from Dr. Krone, the impartial medical specialist.
Counsel raised the same issues
regarding the questions asked of Dr. Krone and the notice of proposed termination of
compensation that he had raised before OWCP in his January 15, 2014 reconsideration request to
OWCP. He also again noted that Dr. Krone’s report was unsigned.
By order dated July 1, 2014, the Board denied appellant’s petition for reconsideration.6
The Board affirmed its prior decision finding that the opinion of Dr. Krone was entitled to
special weight, as that of the impartial medical specialist, and was sufficiently rationalized to
establish that appellant’s work-related conditions had ceased. The Board did not address the new
legal arguments counsel had made in his petition for reconsideration regarding the alleged
improper leading questions, the notice of proposed termination of compensation, or the lack of
signature on Dr. Krone’s April 10, 2013 report.
On August 25, 2014 appellant, through counsel, requested reconsideration of OWCP’s
termination of benefits decision. He again alleged the new legal arguments he had made in his
January 15, 2015 request for reconsideration to OWCP and in his March 7, 2014 petition for
reconsideration to the Board. Counsel argued that Dr. Krone’s referee report could not be used
as the basis for termination of compensation. He argued that Dr. Krone’s report was unsigned
5

Id.

6

Docket No. 13-1960 (issued July 1, 2014).

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and thus, was of no probative value. Counsel further argued that the questions provided to
Dr. Krone were leading and factually incorrect, citing Brenda C. McQuiston7 and Carl D.
Johnson8 for support. Finally, he argued that Dr. Krone’s report revealed that he was provided
the December 17, 2012 notice of proposed termination. Counsel argued that this was prejudicial
because it implied that Dr. Krone should reach a conclusion in line with terminating appellant’s
benefits. No new medical evidence was submitted in support of appellant’s claim.
By decision dated September 25, 2014, OWCP affirmed the termination of appellant’s
compensation benefits effective June 29, 2013. It issued a merit decision noting that counsel’s
request contained new legal arguments not previously considered. However, OWCP found
counsel’s arguments to be without merit and insufficient to modify the Board’s prior termination
decision.9
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.10 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the residual have ceased or that they are no longer related to the
employment.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.12 In situations where there are 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 on a proper factual background, must be given special
weight.13
ANALYSIS
OWCP accepted that appellant sustained a right knee and leg contusion, thoracic back
sprain, lumbar back sprain, and neck sprain as a result of the November 28, 2011 work-related
7

Docket No. 03-1725 (issued September 22, 2003).

8

Docket No. 94-404 (issued May 31, 1995).

9

OWCP improperly stated that it was affirming the Board’s February 18, 2014 decision. The Board’s Rules of
Procedure provide that the decisions and orders of the Board are final as to the subject matter appealed, and such
decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d).
10

Bernadine P. Taylor, 54 ECAB 342 (2003).

11

Id.

12

5 U.S.C. § 8123(a).

13

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

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injury. The issue is whether it properly terminated her wage-loss and medical benefits effective
June 29, 2013, as she no longer had residuals of the November 28, 2011 injury. The Board finds
that OWCP properly terminated appellant’s compensation benefits.
The Board’s February 18, 2014 decision affirmed OWCP’s June 19 and August 14, 2013
decisions terminating appellant’s wage-loss compensation and medical benefits effective
June 29, 2013 as she had no further residuals causally related to her November 28, 2011
employment injury. The Board issued its decision on the basis of the evidence of record at the
time.
On March 7, 2014 counsel for appellant filed a petition for reconsideration of the Board’s
February 18, 2014 decision and the Board duly issued an order denying appellant’s petition for
reconsideration on July 1, 2014.14 With respect to the findings made in the Board’s February 18,
2014 decision, those matters are res judicata absent any further review by OWCP under section
8128 of FECA.15
The Board’s February 18, 2014 decision, however, did not review the new legal
arguments made by appellant’s counsel regarding the leading nature of questions presented to
Dr. Krone by OWCP, Dr. Krone’s access to the notice of proposed termination, or the lack of
signature on Dr. Krone’s report. These arguments had not been presented to OWCP prior to its
June 19 or August 14, 2013 decisions, and were not considered by the Board on appeal. The
Board denied counsel’s March 7, 2014 petition for reconsideration, which did raise these
arguments, as these arguments had not been made to OWCP prior to its February 18, 2014
termination decision and they did not establish an error of fact or law in the Board’s February 18,
2014 decision.
On August 25, 2014 counsel for appellant again requested reconsideration by OWCP of
its termination decision and resubmitted the new legal arguments. No new medical evidence was
submitted.16 As the Board’s February 18, 2014 decision and July 1, 2014 order denying petition
for reconsideration reviewed these arguments, and as OWCP had now reviewed this new
arguments and issued a new merit decision on them, the matters are not barred for review by the
Board under res judicata.17 As the legal arguments offered by appellant’s counsel have now
been reviewed by OWCP they are properly before the Board on appeal.

14

Supra note 6.

15

Hugo A. Mentink, 9 ECAB 628 (1958); see also Robert G. Burns, 57 ECAB 657 (2006).

16

“A right to reconsideration within one year accompanies any subsequent merit decision. This includes any
decision issued by the Branch of Hearings and Review (H&R) after a hearing or review of the written record, any
denial of modification following a reconsideration, any merit decision by the Employees’ Compensation Appeals
Board (ECAB)….” See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a)
(October 2011).
17

Hugo A. Mentink, 9 ECAB 628 (1958).

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By decision dated September 25, 2014, OWCP granted merit review of the claim based
on the submission of new legal arguments not previously considered.18 The September 25, 2014
OWCP decision affirmed the termination of compensation benefits effective June 29, 2013.
Thus, the only decision
affirmed its termination of
June 29, 2013. The Board finds
modification of the termination.
decision.19

before the Board on this appeal is whether OWCP properly
appellant’s compensation and medical benefits effective
that counsel’s new legal arguments were insufficient to require
The Board will therefore affirm OWCP’s September 25, 2014

Counsel argued that Dr. Krone’s August 10, 2013 report was unsigned and thus, of no
probative value. While the report was not signed, the Board finds that the report contains proper
identification such that it is sufficiently probative and entitled to the weight of the medical
opinion evidence.20 The record contains a properly executed ME023 and bypass history report
documenting the selection of Dr. Krone as the referee physician. The record further establishes
that appellant was referred to Dr. Krone for examination on April 10, 2013, the date of his report.
The Board notes that Dr. Krone’s August 10, 2013 report was printed on his office letterhead and
contained a signature line with his name. While the report may be unsigned, the Board finds that
there are sufficient indicia of identification concerning its author and authorship can be
ascertained.21 Thus, the report is probative medical evidence.22
Counsel argues that the questions provided to the referee physician were leading and
thus, prejudicial to appellant’s claim.23 He specifically references question three, stating that the
question indicates that some explanation is needed if the referee examiner agrees with the
treating physician, and no explanation is needed if the referee examiner agrees with the second
opinion physician.24 The Board notes that OWCP asked Dr. Krone to provide support for his
opinion if he found that appellant continued to suffer from the cervical, thoracic, or lumbar
strain. This question does not suggest or imply an answer and rather, would provide greater

18

20 C.F.R. § 10.610 provides that an award for or against payment of compensation may be reviewed at any
time on the Director’s own motion. The decision of whether or not to review an award under this section is solely
within the discretion of the Director. The Director’s exercise of this discretion is not subject to review by ECAB.
Jurisdiction on review or appeal to ECAB is limited to review of the merits of the decision. The Director’s
determination to review the award is not reviewable.
19

Therese J. Sannar, Docket No. 02-2237 (issued May 12, 2003).

20

C.f. T.B., Docket No. 09-1428 (issued January 25, 2010); P.C., Docket No. 08-2363 (issued May 5, 2009).

21

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988) (unsigned medical evidence with
no adequate indication that it was completed by a physician is not considered probative medical evidence).
22

Id.

23

Supra notes 7 and 8.

24

Question 3: “[Appellant’s] claim was originally accepted for a cervical, thoracic and lumbar stain. It has been
over a year since her accident. Does [appellant] continue to suffer from a strain to any of these areas? If yes, can
you explain why she would continue to have a strain since it has been over a year since this injury occurred.”

8

support for her claim if the referee physician found that she continued to suffer from the workrelated strain.25
Counsel asserts that Dr. Krone was not required to provide justification if he agreed with
the second opinion physician that appellant’s strain had ceased. Dr. Krone, however, provided a
sufficiently rationalized explanation that she was no longer suffering from a work-related strain.
He opined that the cervical, thoracic, and lumbar strain had ceased, explaining that appellant
would have had resolution of her symptoms, given the treatment she was provided, six to eight
weeks after the initial injury. Dr. Krone further stated that there were no objective findings of
any disability related to the November 28, 2011 MVA. The Board notes that the question did not
suggest an answer. It simply requested an explanation as to why a strain would continue longer
than a year, which would suggest more serious condition than a strain. The Board finds that the
questions provided to the referee physician were not leading and did not suggest or imply an
answer to the questions posed.26
Counsel further argues that the first question27 was factually incorrect and in conflict with
the SOAF because it asked the referee physician if appellant was suffering from a cervical
condition when the SOAF establishes that the claim was accepted for a thoracic, cervical, and
lumbar strain. The Board does not find this question to be factually incorrect. OWCP was
requesting further insight as to whether appellant was currently suffering from a cervical
condition based on findings made in prior medical reports. The question cannot be construed to
suggest that Dr. Krone should not consider the SOAF and the accepted conditions. Not only was
the cervical, thoracic, and lumbar strain documented in the SOAF as having been accepted,
question three requested Dr. Krone provide further information pertaining to all three conditions.
The Board finds this argument without merit.28
Counsel argues that question four29 was incorrect because it only asked about an
aggravation of a preexisting cervical condition. He stated that OWCP should have asked if the
MVA accelerated appellant’s underlying condition and without this explanation, the conflict was
not resolved. The Board is not persuaded by counsel’s argument. There was no evidence in the
record at the time to suggest there were any other diagnosed preexisting condition, but the
25

The weight of medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s opinion. James Mack,
43 ECAB 321 (1991).
26

See Carl D. Johnson, Docket No. 94-404 (issued May 31, 1995). Compare Stanislaw M. Lech, 35 ECAB 857
(1984) (finding that OWCP posed a leading question to the impartial medical specialist by asking him to “Give date
when aggravated disability ceased,” implying that it had ceased).
27

Question 1: “Is [appellant] currently suffering from a cervical condition? If yes what is her diagnosis and what
objective findings support this diagnosis?”
28

Id.

29

Question 4: “It is noted that [appellant] had underlying conditions of mild degeneration from C4 to C7,
moderate spondylosis at C6-7 with moderate foraminal stenosis bilaterally. If you feel the accident on
November 28, 2011, aggravated these preexisting conditions, was it a temporary or permanent aggravation? If
temporary when would the aggravation cease and she return to her baseline condition.”

9

general question: “Is [appellant’s] current condition related to the car accident on November 28,
2011? Please explain why you feel it is or is not related,” provided Dr. Krone every opportunity
to determine any residuals or disability due to the work-related injury, based on his review of the
record and his examination findings.
Finally, counsel contends that Dr. Krone’s report indicates review of the December 17,
2012 notice of proposed termination. He argues that providing the proposed termination to
Dr. Krone was prejudicial and the physician could not have reached any other conclusion than
one which provided an opinion in support of termination of benefits. The Board finds this
argument to be without merit.
OWCP procedures provide that the referee physician should be provided with a SOAF
and a list of pertinent questions or issues to be addressed, which should include a statement
outlining the conflict(s) for resolution in the case. The referee physician should also receive a
copy of the entire case record.30 OWCP properly followed its procedures and provided
Dr. Krone a copy of the case record, which included the notice of proposed termination, as well
as a statement outlining the conflict for resolution.
Dr. Krone’s opinion that appellant no longer suffers from residuals and disability of her
work-related injury is of reliable and probative value.31 Counsel’s argument that her treating
physician’s report established continued disability was previously addressed in the Board’s
February 18, 2014 decision and is covered by res judicata and will not be reviewed by the Board
a second time.32
Thus, the Board finds that Dr. Krone’s opinion constitutes the weight of the medical
evidence and is sufficient to meet OWCP’s burden of proof to terminate appellant’s
compensation and medical benefits.33 The arguments made on appeal fail to establish that a
conflict in medical opinion remain because of alleged deficiencies. Therefore, OWCP properly
terminated appellant’s compensation benefits.34
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective June 29, 2013.
30

Supra note 27 at Chapter 2.810.11(b).

31

V.G., Docket No. 07-1549 (issued April 24, 2008).

32

As there was no new relevant medical evidence submitted since OWCP’s August 14, 2013 decision which was
affirmed by the Board on February 18, 2014, the Board will not reevaluate the medical evidence.
33

D.R., Docket No. 12-1697 (issued January 29, 2013).

34

D.M., Docket No. 11-386 (February 2, 2012); Marshall E. White, 33 ECAB 1666 (1982).

10

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mount Vernon, N.Y., Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-950
Issued: January 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 7, 2011 appellant, through her attorney, timely filed an application for review
from the February 3, 2011 decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for modification of an OWCP wage-earning capacity determination dated
July 1, 1997. The Board assigned Docket No. 11-950.
OWCP accepted that on August 22, 1994 appellant, then a 33-year-old clerk, sustained a
left knee contusion and lateral derangement of the left knee. At the time of her work injury,
appellant was working on a full-time basis for the employing establishment. In a July 1, 1997
decision, OWCP reduced appellant’s compensation based on its determination that her actual
earnings in this position represented her wage-earning capacity. However, appellant established
a recurrence of disability and worsening of her employment-related condition on July 18, 2003.
On March 9, 2005 appellant returned to a light-duty position for the employing
establishment, working 4 hours per day for a total of 20 hours per week. By decision dated
May 31, 2005, OWCP reduced appellant’s compensation benefits based on a full-time position to
that of a part-time position of a mail processing clerk, 20 hours per week, effective
March 20, 2005. The employing establishment reduced appellant’s work hours from four to one
on January 25, 2010 under the National Reassessment Process.
Appellant requested
compensation beginning January 27, 2010. She filed a notice of recurrence of disability on

February 25, 2010. Appellant requested modification of OWCP’s July 1, 1997 wage-earning
capacity determination. In a June 24, 2010 decision, OWCP denied appellant’s request for
modification of its May 31, 2005 wage-earning capacity determination which was previously set
aside. Appellant requested an oral hearing. By decision dated January 21, 2011, the hearing
representative affirmed OWCP’s finding regarding the modification of the May 31, 2005 wageearning capacity determination, but modified that decision finding that appellant was entitled to
compensation from January 25 to March 29, 2010 for three hours a day.
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.1 Section 8115(a) of FECA provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageCompensation payments are based on the wage-earning capacity
earning capacity.2
determination and it remains undisturbed until properly modified.3
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.4 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.5
OWCP’s procedure manual provides that the factors to be considered in determining
whether the claimant’s work fairly and reasonably represented his wage-earning capacity include
the kind of appointment and the tour of duty. The manual states that reemployment may not be
considered suitable when the actual earning job is part time, unless the claimant was a part-time
worker at the time of injury.6
OWCP found that appellant’s actual earnings in part-time reemployment for 20 hours per
week represented her wage-earning capacity. Appellant was a full-time worker at the time of her
work injury. As the above-noted procedure makes clear, the Director of OWCP has determined
that when the tour of duty is not at least equivalent to that of the job held at the time of injury,
OWCP will not consider the reemployment suitable for a wage-earning capacity determination.
The Board finds, therefore, that OWCP abused its discretion in determining appellant’s wage1

See Katherine T. Kreger, 55 ECAB 633 (2004); 5 U.S.C § 8115 (regarding determination of wage-earning
capacity).
2

See 5 U.S.C. § 8115.

3

See 5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

4

Sharon C. Clement, 55 ECAB 552 (2004).

5

T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009); see also, O.V., Docket No. 11-98 (issued September 30, 2011).

2

earning capacity based on a part-time position.7 The Board will reverse OWCP’s January 21,
2011 decision.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

O.V., supra note 6; see also S.M., Docket No. 10-2382 (issued September 28, 2011).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Detroit, MI,
Employer
__________________________________________

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

Docket No. 06-1317
Issued: May 3, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 17, 2006 appellant filed a timely appeal from an April 21, 2006 decision of the
Office of Workers’ Compensation Programs which denied her request for reconsideration
because it was untimely filed and did not establish clear evidence of error. As there is no merit
decision within one year of the filing of this appeal, the Board lacks jurisdiction to review the
merits of appellant’s claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction to review the April 21, 2006 decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.

1

20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case has previously been before the Board. In a September 13, 1999 decision, the
Board found that the Office met its burden of proof to terminate appellant’s compensation
benefits on April 8, 1996 and that she did not meet her burden of proof to establish that she had
any disability after April 8, 1996 causally related to her employment injury.2 On March 2, 2000
the Board denied appellant’s petition for reconsideration. The law and the facts of the previous
Board decisions and orders are incorporated herein by reference.
On June 21, 2000 appellant requested reconsideration with the Office, maintaining that
the reports of Dr. Michael E. Kosinski, a Board-certified orthopedic surgeon, who provided an
impartial examination, contained errors. She also submitted medical evidence. In a July 14,
2000 decision, the Office denied appellant’s reconsideration request. On December 5, 2005
appellant again requested reconsideration, arguing that the Office misrepresented the credentials
of Dr. Kosinski and that his opinion was not rationalized. By decision dated April 21, 2006, the
Office denied appellant’s reconsideration request on the grounds that it was untimely filed and
failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.4 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.5 Office procedures state that
the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth under section 10.607 of Office regulations,6 if the claimant’s application for
review shows “clear evidence of error” on the part of the Office. In this regard, the Office will
limit its focus to a review of how the newly submitted evidence bears on the prior evidence of
record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
2

Docket No. 98-203 (issued September 13, 1999).

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

5

Cresenciano Martinez, 51 ECAB 322 (2000).

6

20 C.F.R. § 10.607.

7

Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005).

2

as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the Office decision. The Board makes an independent determination of whether a
claimant has submitted clear evidence of error on the part of the Office.8
ANALYSIS
As more than one year had elapsed from the date of issuance of the September 13, 1999
Board decision, the most recent merit decision in this case, appellant’s request for
reconsideration on December 6, 2005 was untimely filed. The one-year time limitation on
reconsideration requests begins to run subsequent to any merit decisions on the issues, including
any such decision of the Board.9 Consequently, appellant must demonstrate clear evidence of
error by the Office in denying her claim for compensation.10
The Board also finds that appellant failed to establish clear evidence of error with her
reconsideration request. On reconsideration, she asserted that the Office misrepresented
Dr. Kosinski’s credentials. A search of the online medical directories of both the American
Board of Medical Specialties and the American Board of Orthopedic Surgery demonstrates that
Dr. Kosinski is Board-certified in orthopedic surgery,11 the appropriate medical specialty to
assess appellant’s condition, accepted for lumbosacral sprain and ruptured discs. Appellant
further maintained that Dr. Kosinski’s opinion was not rationalized. This argument is
duplicative of arguments raised in her June 21, 2000 reconsideration request. In the
September 13, 1999 decision, the Board reviewed Dr. Kosinski’s opinion and determined that it
was well rationalized. These arguments are therefore insufficient to establish clear evidence of
error.12 Appellant also submitted a September 4, 1986 report from Dr. Rachel B. Keith. This
report, however, was previously of record and, therefore, duplicative and is insufficient to
establish clear evidence of error.13
In accordance with its internal guidelines and with Board precedent, the Office properly
performed a limited review of the evidence and argument submitted by appellant with her
December 6, 2005 reconsideration request to ascertain whether it demonstrated clear evidence of

8

Nancy Marcano, 50 ECAB 110 (1998).

9

Odell Thomas, 42 ECAB 405 (1991).

10

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB ____ (Docket No. 05-1637, issued October 18, 2005).

11

The websites are located at: http://www.abms.org/ and https://www.abos.org/default.aspx respectively.

12

Nancy Marcano, supra note 8.

13

Id.

3

error. The Office correctly determined that it did not and thus properly denied appellant’s
untimely request for reconsideration of the merits of her claim.14
CONCLUSION
The Board finds that, as appellant’s December 6, 2005 reconsideration request was not
timely filed and she failed to establish clear evidence of error, the Office properly denied a merit
review of her claim in its April 21, 2006 decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 21, 2006 be affirmed.
Issued: May 3, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14

Supra note 10.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Athens, GA, Employer
__________________________________________

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

Docket No. 18-0679
Issued: November 7, 2019

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 February 9, 2018 appellant, through counsel, filed a timely appeal from a January 8,
2018 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 to consider the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 8, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her left lower extremity, warranting a schedule award.
FACTUAL HISTORY
On May 16, 2011 appellant, then a 61-year-old laboratory support worker, sustained a left
knee injury on May 13, 2011 when walking down the second floor stairway to the first floor
while in the performance of duty. OWCP accepted her claim for tear of the lateral meniscus of
the left knee. Appellant stopped work on May 17, 2011.
Appellant was treated by Dr. Charles Ogburn, a Board-certified internist, from May 26,
2011 to February 13, 2012, for a cervical spine and left knee injury sustained after her May 13,
2011 fall. Dr. Ogburn noted that x-rays of appellant’s left knee revealed age-related
degenerative changes. He diagnosed left knee pain, suspected meniscus tear, and cervical
radiculopathy. Dr. Ogburn performed a series of left knee injections. He recommended physical
therapy and discharged appellant to return to work full duty on September 23, 2011.
A magnetic resonance imaging (MRI) scan of the left knee dated June 10, 2011 revealed
mucoid intrasubstance degeneration of the anterior cruciate ligament, possibly grade 1 sprain,
small closed horizontal tear of the body of the lateral meniscus, increased T2 signal involving the
free edge of the body of the lateral meniscus possibly representing small remote radial tear
versus free edge fraying, lateral patella tilt, lateral overriding patella, and extensive irregular
thinning of the articular cartilage of the patella.
Appellant treated with Dr. William C. Tally, a Board-certified orthopedist, from June 21
to August 19, 2011, for left shoulder and neck pain.
On July 20, 2016 appellant filed a claim for a schedule award (Form CA-7).
In an August 17, 2016 letter, OWCP requested that Dr. Tally submit a detailed report
which provided a rating of impairment pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
Dr. Tally did not respond.
By decision dated September 28, 2016, OWCP denied appellant’s claim for a
schedule award, finding that the evidence of record was insufficient to establish permanent
impairment of a scheduled member or function of the body due to her accepted May 13,
2011 employment injury.
On October 6, 2016 appellant, through counsel, requested a telephonic hearing
before an OWCP hearing representative. The hearing was held on May 1, 2017.
In support of her schedule award claim, appellant submitted an October 3, 2016
report from Dr. Brad Register, a Board-certified orthopedist, who treated her in 2012 for
4

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

2

left knee and left shoulder pain. Dr. Register diagnosed left knee pain with a history of
questionable lateral meniscus tear. He indicated that appellant had intermittent pain in the
left knee, but that she had reached maximum medical improvement (MMI) and had not
required further treatment for the left knee. Dr. Register referred her for an impairment
rating.
In an October 6, 2016 report, a physical therapist opined that, pursuant to the
A.M.A., Guides, Table 16-3, Knee Regional Grid, appellant sustained two percent
permanent impairment of her left lower extremity.
By decision dated June 9, 2017, the hearing representative affirmed the
September 28, 2016 decision.
On August 14, 2017 appellant, through counsel, requested reconsideration submitting
an October 28, 2016 impairment rating report from Dr. Register which was based on the
findings of a physical therapist. The primary diagnosis was left knee pain. Dr. Register
opined that, pursuant to the A.M.A., Guides, appellant had two percent permanent
impairment of the whole person.
In an August 16, 2017 letter, OWCP requested that appellant provide an impairment
rating conducted pursuant to the protocols of the A.M.A., Guides. It specifically requested
that she arrange for the submission of a detailed narrative medical report from her treating
physician based upon a recent examination in accordance with the A.M.A., Guides. OWCP
indicated that although appellant had submitted an impairment rating by Dr. Register, a whole
person rating of impairment was inappropriate under FECA.
Appellant submitted an updated impairment rating from Dr. Register dated
August 30, 2017. The primary diagnosis was left knee pain and he noted that, pursuant to the
A.M.A., Guides, Knee Regional Grid, for soft tissue injury/pain of the left knee, appellant’s
diagnosis was a class 1, mild problem, with consistent motion deficits. Grade modifier for
functional history (GMFH) was 2 for moderate deficit pursuant to the lower limb instrument
(LEFS 20/80), the grade modifier for physical examination (GMPE) was 1 for mild range of
motion deficits (98 flexion, -6 extension), and the grade modifier for clinical studies
(GMCS) was zero due to no available clinical studies or relevant findings. Using the net
adjustment formula, Dr. Register concluded that appellant was a grade C or two percent
whole person impairment, which he converted to six percent permanent impairment of the
left lower extremity.
OWCP thereafter routed Dr. Register’s permanent impairment rating to a district medical
adviser (DMA). In a report dated September 27, 2017, the DMA noted review of Dr. Register’s
August 30, 2017 report, which demonstrated limited motion of 6 to 98 degrees for 6 percent left
lower extremity impairment based on the diagnosis-based impairment (DBI) method. He
indicated that Dr. Register had not provided the necessary documentation of appellant’s residual
subjective complaints, diagnostic studies, treatment, or diagnosis. The DMA also noted that
there was insufficient information contained in the case record to make a determination of
permanent impairment based on the A.M.A., Guides. He recommended that appellant be
referred for a second opinion examination to establish a permanent impairment rating.
On October 31, 2017 OWCP referred appellant for a second opinion to Dr. Howard B.
Krone, a Board-certified orthopedist, for a determination of whether appellant had permanent
3

impairment attributable to her accepted condition. In a report dated December 5, 2017,
Dr. Krone noted a history of appellant’s work-related condition and subsequent treatment. He
noted examination findings and noted that she was ambulating without a cane. Dr. Krone found
that examination of appellant’s left knee was normal and that she had reached MMI in 2011. He
further noted that the diagnosis was initially a lateral meniscal tear of the left knee, but that there
were no MRI scan findings included for review and his examination did not demonstrate
evidence of a lateral meniscal tear. Dr. Krone noted the diagnosis of left knee pain was
secondary to the initial contusion of the anterior aspect of her left knee and had generally
resolved within six to eight weeks post injury. He indicated that based upon the A.M.A., Guides
appellant had zero percent permanent impairment of the left lower extremity due to lack of
physical findings.
On December 18, 2017 OWCP requested clarification from Dr. Krone regarding his
opinion. It noted that Dr. Krone had not assigned an impairment rating based on the DBI
method because he had not observed evidence of a lateral meniscus tear. OWCP requested
that he review additional medical evidence it had provided, including a left knee MRI scan
dated June 10, 2011 and a medical report from Dr. Ogburn dated June 14, 2011, and provide a
supplemental impairment rating of permanent impairment, if any. It further requested that
Dr. Krone address whether appellant had permanent impairment based on the range of motion
methodology of the A.M.A., Guides, and provide the date of MMI.
In a supplemental report dated December 18, 2017, Dr. Krone noted that Dr. Ogburn’s
June 14, 2011 office note described MRI scan findings, but made no mention of a complete
tear of the lateral meniscus. He further indicated that OWCP had not sent him a left knee
MRI scan report as dictated by a radiologist. Dr. Krone found that appellant’s physical
examination had not demonstrated lateral joint line pain and opined that, if there was a lateral
meniscus tear, he would have observed lateral joint line pain and a positive McMurray test,
which he had not. He therefore again opined that appellant had zero percent permanent
impairment of the left lower extremity. Dr. Krone advised that during his examination on
December 5, 2017 appellant’s range of motion was normal and thus there would be no
permanent impairment based on loss of range of motion. He noted that appellant reached
MMI on July 12, 2011.
By decision dated January 8, 2018, OWCP denied modification of the June 9, 2017
decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

4

the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class of diagnosis condition (CDX), which is then adjusted by grade
modifiers of GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).11 The grade modifiers are used on the net adjustment
formula described above to calculate a net adjustment. The final impairment grade is determined
by adjusting the grade up or down the default value C, by the calculated net adjustment.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment
in accordance with the A.M.A., Guides with the DMA providing rationale for the percentage of
impairment specified.13
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP referred appellant to Dr. Krone for a second opinion examination to determine her
permanent impairment for schedule award purposes. In a report dated December 5, 2017,
Dr. Krone provided findings on physical examination and noted that the diagnosis was initially a
lateral meniscal tear of the left knee, but that no MRI scan findings were included for review and
that the examination was normal and had not demonstrated evidence of a lateral meniscal tear.
He noted the diagnosis of left knee pain secondary to the initial contusion to the anterior aspect
of her left knee, which would have resolved within six to eight weeks post injury. Dr. Krone
concluded that appellant had reached MMI in 2011 and, in accordance with the A.M.A., Guides,
she had zero percent permanent impairment of the left lower extremity.
On December 18, 2017 OWCP requested that Dr. Krone provide clarification of his
opinion. In his supplemental report dated December 18, 2017, Dr. Krone noted receiving a
7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 521.

12

A.M.A., Guides 497.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

5

fax from OWCP on December 19, 2017, which included an office note from Dr. Ogburn dated
June 14, 2011. He noted that he had not been provided a left lower extremity MRI scan report
and that Dr. Ogburn’s June 14, 2011 office note described MRI scan findings, but made no
mention of a complete tear of the lateral meniscus. Dr. Krone also noted that his physical
examination had not demonstrated lateral joint line pain, findings of lateral joint line pain, nor
a positive McMurray test. He therefore continued to opine that appellant had zero percent
impairment of the left lower extremity pursuant to the A.M.A., Guides.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.
While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.15 Once OWCP undertakes development of the record it must procure medical
evidence that will resolve the relevant issues in the case.16 It began to develop the evidence
when it referred appellant to Dr. Krone for a second opinion examination to determine whether
appellant sustained permanent impairment. Dr. Krone questioned whether appellant had
evidence of a left lateral meniscus tear as her physical examination was negative. He clearly
indicated that he had not received a copy of the June 10, 2011 MRI scan report of the left knee
upon which the accepted conditions of the claim had been based. The Board finds that the MRI
scan report was necessary for full consideration of whether appellant sustained permanent
impairment of her left lower extremity.17
14

Therefore, the Board finds that the case must be remanded to OWCP. On remand OWCP
should prepare an updated statement of accepted facts and obtain a copy of the MRI scan of the
left knee dated June 10, 2011. The case shall then be forwarded to Dr. Krone for a supplemental
opinion, or to a new second opinion physician, to address whether appellant has permanent
impairment of her left lower extremity in accordance with the sixth edition of the A.M.A.,
Guides. Following this and such further development deemed necessary, OWCP shall issue a de
novo decision on appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See X.V., Docket No. 18-1360 (issued April 12, 2019); Jimmy A. Hammons, 51 ECAB 219 (1999); Vanessa
Young, 55 ECAB 575 (2004).
15

See B.C., Docket No. 19-0920 (issued September 25, 2019); Richard E. Simpson, 55 ECAB 490 (2004).

16

Supra note 14; Phillip L. Barnes, 55 ECAB 426 (2004).

17

See P.E., Docket No. 17-0961 (issued March 14, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2018 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: November 7, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Portland, OR,
Employer
__________________________________________

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

Docket No. 16-0454
Issued: June 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 11, 2016 appellant, through counsel, filed a timely appeal from a
November 13, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to rescind acceptance of appellant’s
claim for left-sided hearing loss.
FACTUAL HISTORY
On October 31, 2007 appellant, then a 66-year-old transportation foreman, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss causally related
1

5 U.S.C. § 8101 et seq.

to factors of his federal employment. He did not stop work. OWCP assigned the claim file
number xxxxxx660.
The record indicates that appellant had filed a prior claim for hearing loss, assigned file
number xxxxxx687. In a decision dated June 26, 1996, issued in file number xxxxxx687, OWCP
denied his hearing loss claim after finding that the medical evidence failed to establish that it was
causally related to his employment.
On March 6, 2008 OWCP referred appellant to Dr. Craig Hertler, a Board-certified
otolaryngologist, for a second opinion examination. In a report dated April 7, 2008, Dr. Hertler
reviewed appellant’s history of noise exposure at work and history of childhood ear infections, a
mastoidectomy of the left ear in 1957, and the placement of a tube in the right eardrum. He
noted that the statement of accepted facts (SOAF) did not clearly set forth appellant’s work
history with the employing establishment. Dr. Hertler diagnosed bilateral mixed conductive and
neurosensory hearing loss. He attributed the conductive hearing loss, especially on the left side,
to chronic otitis media, and surgery. Dr. Hertler reviewed audiometric testing obtained that date
and opined:
“The majority of [appellant’s] hearing loss is conductive in character and not
related to noise exposure. The sensorineural loss seen is, in my opinion, in part
due to noise exposure encountered in this [appellant’s] federal civilian
employment. I think with the degree of noise that he was exposed to, the
duration, and the lack of any hearing protection for literally decades of operating
heavy equipment is, on a more probable than not basis, likely to have caused
some neurosensory loss.”
Dr. Hertler recommended the continued use of hearing aids bilaterally.
On May 15, 2008 OWCP accepted appellant’s claim for bilateral hearing loss.
On September 10, 2008 OWCP requested that an OWCP medical adviser review the
current case record and the record from the prior claim for hearing loss, file number xxxxxx687.
In a report dated September 15, 2008, the medical adviser concurred with Dr. Hertler that
appellant’s sensorineural hearing loss was due in part to noise exposure during the course of his
federal employment. He recommended authorizing hearing aids.
OWCP prepared an updated SOAF on September 29, 2008. It noted that appellant
worked in the employing establishment from 1978 to 2006 as a heavy-duty truck driver, tractor
operator, and truck driver foreman. On April 30, 2006 appellant began working as a foreman in
an office, with low noise exposure.
The updated SOAF was provided to Dr. Hertler with the additional medical records.
OWCP requested that he address whether noise exposure after June 13, 1996 caused any increase
in hearing loss on the left side.
In a supplemental report dated October 3, 2008, Dr. Hertler noted that the SOAF
indicated that appellant’s noise exposure changed when he became a foreman such that he was in
an office with little noise exposure. He found that his noise exposure form 1996 to 2006 was
2

sufficient to cause hearing loss. Dr. Hertler compared an audiogram dated November 13, 1995
to the April 7, 2008 audiogram obtained at the time of his examination. He concluded that the
increase in appellant’s left hearing loss after the November 13, 1995 audiogram resulted from
conductive hearing loss due to chronic otitis media and surgery. Dr. Hertler concluded, “Simply
stated [that] there is no worsening of [appellant’s] hearing in the left ear at the frequency that
would be most susceptible to a noise[-]induced hearing loss between 1995 and 2008. As a result,
I do not think noise exposure caused a worsening of his hearing in the left ear subsequent to
June 13, 1996.”
On December 3, 2008 an OWCP medical adviser indicated that he did not have the
audiograms relied upon by Dr. Hertler and thus could not comment on his conclusions.
In an internal memorandum dated December 16, 2008, OWCP noted that appellant had a
prior hearing loss claim, file number xxxxxx687, with an injury date of June 11, 1994. It
indicated that Dr. Hertler had found that the increase in the hearing loss in appellant’s left ear
between 1995 and 2008 was unrelated to employment. OWCP advised that it would rescind
acceptance of left hearing loss.
On December 16, 2008 OWCP informed an OWCP medical adviser that the case had
only been accepted for right hearing loss and asked that he provide an impairment rating for the
right ear. In a report dated December 29, 2008, the medical adviser calculated the extent of
appellant’s impairment due to hearing loss on the right side.
On January 26, 2009 OWCP notified appellant of its proposed rescission of the
acceptance of his claim for left hearing loss. It discussed his previous claim for hearing loss
under file number xxxxxx687, which had been denied as the medical evidence had not
established causal relationship. OWCP determined that the current claim, assigned file number
xxxxxx660, was for noise exposure after June 26, 1996. It proposed rescinding appellant’s
accepted left-sided hearing loss as the medical evidence did not show worsening after 1996 due
to noise exposure at work.
By decision dated January 29, 2009, OWCP granted appellant a schedule award for 36
percent permanent impairment for right hearing loss. The period of the award ran for 18.72
weeks from April 7 through August 16, 2008.
On May 23, 2013 an audiologist noted that appellant wanted to get a new pair of hearing
aids.
In a letter dated March 26, 2014, OWCP advised a medical provider that appellant’s
claim was only accepted for right hearing loss.
In a report dated July 28, 2014, Dr. Benjamin D. Herring, who specializes in family
medicine, diagnosed hearing loss in the left ear “consistent with a work[-]related hearing
impairment.” He noted that testing showed multiple ruptures of the tympanic membrane from
overpressure bilaterally, but also showed a conductive component.

3

On February 9, 2015 appellant filed a claim for a schedule award. In response, OWCP
provided him with a copy of its January 26, 2009 notice of rescission. It informed appellant that
he had 30 days to respond to the proposed rescission.
On March 4, 2015 appellant’s counsel asserted that his hearing loss had progressed
without new exposure.
By decision dated March 23, 2015, OWCP rescinded acceptance of appellant’s claim for
left hearing loss. It found that Dr. Hertler’s April 7, 2008 report established that the increase in
hearing loss in his left ear after June 1996 was not due to noise exposure at work.
On March 30, 2015 appellant, through counsel, requested a telephone hearing. At the
telephone hearing, held on September 30, 2015, counsel argued that OWCP had not met its
burden of proof to justify rescission.2
By decision dated November 13, 2015, an OWCP hearing representative affirmed the
March 23, 2015 decision.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or application.3 The Board has
upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.4 The power to annul an award, however, is not an arbitrary one and an
award for compensation can only be set aside in the manner provided by the compensation
statute.5
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the employing establishment and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud.6 It is well
established that, once OWCP accepts the claim, it has the burden of justifying the termination or
modification of compensation benefits.7 Its burden of justifying termination or modification of
compensation holds true where it later decides that it has erroneously accepted a claim of

2

In reports dated April 16 and June 17, 2014 and October 1, 2015, Dr. Bennett E. Barch, an otolaryngologist,
treated appellant for left ear problems. His diagnosis included left otorrhea.
3

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

4

John W. Graves, 52 ECAB 160 (2000).

5

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

6

L.C., 58 ECAB 493 (2007).

7

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

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compensation. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of its rationale for rescission.8
ANALYSIS
On October 31, 2007 appellant filed an occupational disease claim alleging that he
sustained bilateral hearing loss causally related to factors of his federal employment. He had a
prior claim for hearing loss, assigned file number xxxxxx687. In a decision dated June 26, 1996,
issued under file number xxxxxx687, OWCP denied appellant’s hearing loss based on its finding
that the medical evidence had not established that his hearing loss resulted from noise exposure
at work.
In a report dated April 7, 2008, Dr. Hertler, an OWCP referral physician, diagnosed
bilateral mixed conductive and neurosensory hearing loss.
He attributed appellant’s
neurosensory hearing loss in part to noise exposure during the course of his federal employment.
Dr. Hertler recommended the use of hearing aids. On September 15, 2008 an OWCP medical
adviser agreed with Dr. Hertler’s finding that appellant sustained sensorineural hearing loss as a
result of noise exposure at work.
Based on Dr. Hertler’s report, OWCP accepted the claim for bilateral hearing loss. It
subsequently determined, however, that the current claim involved only noise exposure after
June 1996, the date of the last merit decision denying appellant’s prior hearing loss claim.
OWCP requested that Dr. Hertler explain whether he sustained any increased hearing loss on the
left side after June 1996 due to noise exposure at work. In a supplemental report dated
October 3, 2008, Dr. Hertler found that appellant had not experienced any increase in hearing on
the left side due to noise exposure after June 13, 1996.
On March 23, 2015 OWCP rescinded appellant’s claim for left hearing loss based on
Dr. Hertler’s finding that the increase in hearing loss after June 13, 1996 was unrelated to noise
exposure in the course of his federal employment.
The Board finds that OWCP has not met its burden of proof to rescind acceptance of
appellant’s claim. OWCP procedures provide for the doubling of a claim when a new injury is
reported for an employee who previously filed an injury claim for a similar condition for the
same part of the body.9 While it combined the file numbers for the current claim, file number
xxxxxx660, into the prior claim, xxxxxx687, it did not refer file number xxxxxx687 to
Dr. Hertler for an opinion on whether noise exposure at work caused or contributed to
appellant’s hearing loss. Further, OWCP did not obtain an opinion from an OWCP medical
adviser subsequent to Dr. Hertler’s October 3, 2008 report discussing causation.
On
December 3, 2008 an OWCP medical adviser indicated that he could not address Dr. Hertler’s
conclusions in his October 3, 2008 report as he did not have the audiograms relied upon by the
physician in reaching his findings. OWCP reopened appellant’s claim under file number
8

See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004).

9

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

5

xxxxxx660 and rescinded acceptance based on Dr. Hertler’s supplemental opinion, but did not
reconsider his doubled claim in its entirety. The Board, consequently, finds that OWCP failed to
meet its burden of proof to rescind acceptance of appellant’s claim for left hearing loss.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind acceptance of
appellant’s claim for left hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 28, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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

Docket No. 12-1583
Issued: January 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2012 appellant filed a timely appeal of the February 28, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a pulmonary condition
causally related to factors of his federal employment.
FACTUAL HISTORY
On November 2, 2011 appellant, then a 53-year-old painter, filed an occupational disease
claim alleging that on October 27, 2011 he first became aware of his asthma condition and
1

5 U.S.C. § 8101 et seq.

realized that it was caused by his federal employment. On October 27, 2011 Dr. Michael L.
Wilder, an attending Board-certified internist, diagnosed occupational asthma.
In a November 2, 2011 letter, the employing establishment controverted the claim,
contending that appellant failed to submit supportive medical evidence to establish that his
claimed condition was caused by his work.
By letter dated November 10, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit medical evidence, including a
rationalized medical opinion from an attending physician, which described his symptoms,
medical background and employment exposure and nonemployment activities that may have
contributed to his claimed condition, and provided the results of examination, tests and treatment
and a diagnosis together with medical reasons on how the claimed work exposure contributed to
his disease. On November 10, 2011 OWCP also requested that the employing establishment
submit factual evidence regarding appellant’s claim.
In a November 18, 2011 narrative statement, appellant contended that his asthma was
caused by his exposure to chemicals and fumes at work eight hours a day, five to seven days a
week. He noted his symptoms and medical treatment. Appellant’s symptoms were worse at
work and improved when he was on vacation.
In an October 17, 2011 report, Dr. Wilder advised that appellant had uncontrolled Type 2
diabetes, chronic cough, a history of asbestos exposure and occupational asthma. In a
November 4, 2011 report, he obtained a history that appellant had no childhood lung disease, hay
fever, asthma, sinusitis or purulent bronchitis. In August 2008, appellant was seen by
Dr. Arnold G. Markman, a family practitioner, for exposures to epoxy paints. Dr. Wilder stated
that he had a chronic cough for three years. Appellant also had a sore throat at times and voice
changes, including hoarseness. Dr. Wilder reviewed a November 23, 2010 pulmonary function
test which showed a vital capacity of 3.10 L or 105 percent predicted. Forced expiratory volume
(FEV1) was 2.50 L or 108 percent predicted. Appellant’s diffusion capacity was 74 percent. His
diffusion capacity corrected for volume was 93 percent. Dr. Wilder reviewed an October 2009
computerized axial tomography (CAT) scan which was normal for interstitial lung disease.
Appellant reported that his cough was 50 percent better while on vacation. He worked with
paints and, two years prior, was assigned to work near an oven that made metal parts and used
chemicals. Dr. Wilder advised that a bronchoscopy was fairly unremarkable. Lidocaine aerosol
helped appellant for two to three hours at a time. Dr. Wilder still felt that appellant’s cough may
be related to heating metal parts. Dr. Wilder noted that venting of gases had been reported. He
referred appellant to an occupational medicine specialist.
In a November 18, 2011 report, Dr. Wilder advised that, as a pulmonologist, appellant’s
cough variant asthma may be related to occupational exposures, but he preferred to leave an
opinion on causal relation to an occupational medicine physician. He stated that appellant had
not responded to the treatment of his more common conditions. Appellant’s cough improved 50
percent within three days while on vacation which was highly suggestive. Dr. Wilder stated that
something related to the heating of metal parts may have acted as a nonspecific irritant that
caused appellant’s cough. He concluded that there was no evidence of prior lung or asthma
conditions.

2

A December 2, 2009 industrial hygiene information and exposure assessment listed
chemicals, toxic fumes and noise levels employees were exposed to at the employing
establishment.
In an undated letter, Gloria Cuthbertson, a human resource specialist, stated that appellant
only worked in areas where he was not exposed to toxic fumes and chemicals. In an undated
statement, Gregory Champagne, a shop supervisor, related that he could not make a statement
regarding the accuracy of appellant’s claim as he was not an industrial hygienist or doctor. He
was not aware of any potentially harmful substances that appellant was required to use at work.
Mr. Champagne could not provide air samples and he did not know if they existed. Also, he
could not provide an answer regarding the air circulation and ventilation in a work area as he was
not a building manager and had no experience with this type of work. Mr. Champagne stated
that appellant was a WG-3712 heat treater and temperer. He heat treated various aircraft parts in
ovens, five days a week, eight hours a day.
In a February 28, 2012 decision, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish that he sustained a pulmonary condition causally
related to the accepted factors of his employment.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
2

In an April 23, 2012 decision, OWCP denied appellant’s claim for wage-loss compensation from April 9 to 20,
2012 on the grounds that his occupational claim had been denied. The Board notes that he has not appealed this
decision.
3

5 U.S.C. §§ 8101-8193.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

3

evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6 Neither the fact that appellant’s condition became apparent during a
period of employment nor, his belief that the condition was caused by his employment is
sufficient to establish a causal relationship.7
ANALYSIS
OWCP accepted that appellant was exposed to potentially hazardous chemicals and
fumes while working as a painter. The Board finds that the medical evidence of record is
insufficient to establish that he sustained a pulmonary condition caused or aggravated by the
accepted work exposure.
In a November 18, 2011 report, Dr. Wilder, an attending Board-certified internist, opined
that appellant’s asthma might be related to occupational exposures. He had not responded to the
treatment of his more common conditions, his cough improved 50 percent within three days
while on vacation which was highly suggestive, something related to the heating of metal parts
may act as a nonspecific irritant and there was no evidence of prior lung or asthma conditions.
Dr. Wilder advised, however, that he was not qualified to offer an opinion on causal relationship
and preferred to leave such an opinion to an occupational medicine physician. This report
provides only speculative support for causal relationship. Dr. Wilder qualified his opinion on
causal relation and, thus, is of limited probative value.8 He did not provide adequate medical
rationale explaining how the accepted work exposure caused or aggravated appellant’s asthma
condition. Medical reports without adequate rationale on causal relationship are of diminished
probative value and are insufficient to meet an employee’s burden of proof.9 Moreover, the fact
that appellant had no pulmonary problems prior to the accepted work exposure, without more by
way of rationale, is insufficient to establish his claim.10 In his November 4, 2011 report,
Dr. Wilder related that appellant asserted that his cough may be related to heating metal parts,
but Dr. Wilder did not provide his own opinion explaining why the established work activity
caused or aggravated his cough.11 His October 17, 2011 report found that appellant had a
chronic cough, history of asbestos exposure and occupational asthma. Dr. Wilder failed to
6

Victor J. Woodhams, supra note 5 at 351-52 (1989).

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

8

S.W., Docket 08-2538 (issued May 21, 2009).

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

10

T.M., Docket No. 08-0975 (issued February 6, 2009); John F. Glynn, 53 ECAB 562 (2002); Cleopatra
McDougal-Saddler, 47 ECAB 480 (1996).
11

Appellant’s belief that the employment caused or aggravated his condition is insufficient to establish causal
relationship. See Joseph T. Gulla, 36 ECAB 516 (1985).

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provide a medical opinion addressing whether the diagnosed conditions were caused or
aggravated by the accepted work exposure. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.12 For the stated
reasons, the Board finds that Dr. Wilder’s reports are insufficient to establish appellant’s claim.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a pulmonary condition causally related to the accepted work
exposure. Appellant did not meet his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a pulmonary
condition causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

12

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

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