United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-540
Issued: November 2, 2009

Oral Argument July 8, 2009

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

JURISDICTION
On January 2, 2009 appellant filed a timely appeal from the September 22, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that she did not establish a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a recurrence of disability on May 10, 2004 causally related to her December 29, 1998
employment injury.
FACTUAL HISTORY
On January 15, 1999 appellant, then a 34-year-old mail carrier filed a claim alleging that
she developed right foot pain on December 29, 1998 due to walking in the performance of duty.
The Office accepted her claim for bilateral plantar fasciitis and aggravation of heel spurs. On
February 29, 2000 appellant’s attending physician, Dr. Carl Collins, a podiatrist, performed a

surgical plantar fasciectomy of the left foot and a tarsal tunnel release. Appellant returned to
light-duty work on May 8, 2000. On July 19, 2000 Dr. Sandra L. Tate, a Board-certified
neurologist, found that appellant had normal electrodiagnostic testing of the left lower extremity
and diagnosed symptom magnification. Dr. Collins examined her on July 26, 2000 and found
that she had reached maximum medical improvement. He found no objective findings to
correlate with her residual symptoms and concluded that she could return to full-duty work.
Appellant did not return to work but filed a claim for an emotional condition due to harassment.
By decision dated August 3, 2000, the Office terminated appellant’s compensation
benefits based on the medical reports. After appellant’s request for an oral hearing,
March 22, 2001, the Office Branch of Hearings and Review affirmed the termination decision.
In a report dated July 25, 2003, Dr. R. Jerome Williams, an internist, diagnosed plantar
fasciitis and tarsal tunnel syndrome. He noted that appellant experienced hyperesthesia in both
feet and indicated with a checkmark “yes” that her condition was caused or aggravated by her
employment. Dr. Williams added, “walking aggravated symptoms.” He estimated that she had
partial impairment of 25 percent of her legs and feet. Appellant requested a schedule award on
April 22, 2003. On February 25, 2004 Dr. Williams diagnosed bilateral tarsal tunnel syndrome,
bilateral plantar fasciitis, post-traumatic stress syndrome and chronic pain syndrome. He opined
that appellant had reached maximum medical improvement and that she had a whole person
impairment of 25 percent due to her leg and foot conditions.
In a report dated July 12, 2004, Dr. Tracy M. Reed, a podiatrist, reviewed appellant’s
April 19, 2004 magnetic resonance imaging (MRI) scan. It listed prominent veins on the medial
aspect of the left ankle in a location which could be associated with tarsal tunnel syndrome as the
only abnormal finding. The report stated that there was no evidence of muscle denervation.
Dr. Reed opined that appellant had enlarged veins in her left foot in addition to and as a result of
tarsal tunnel syndrome.
On September 15, 2004 Dr. Richard R. Wittock, a podiatrist, opined that appellant’s low
back pain had not been appropriately addressed medically. He examined her and found that she
failed straight leg raising and had a positive Lesegue’s test, which he opined was indicative of
sciatica bilaterally due to an L5-S1 radiculopathy in the left lower extremity.
The Office referred appellant to Dr. John Gragnani, a physician Board-certified in
physical medicine and rehabilitation, for a second opinion evaluation. In a January 27, 2005
report, Dr. Gragnani found that appellant had nine percent impairment of the left ankle and seven
percent impairment of the right ankle due to loss of range of motion.
By decision dated March 3, 2005, the Office granted appellant schedule awards for seven
percent impairment of her right leg and nine percent impairment of her left leg. Appellant
requested an oral hearing.
The Office accepted appellant’s claim for the additional conditions of aggravation of
bilateral heel spurs aggravation of bilateral plantar fasciitis on April 6, 2006.
On April 28, 2006 the Social Security Administration (SSA) found that appellant was
disabled beginning January 1, 2005 due to tarsal tunnel syndrome, plantar fasciitis and
2

lumbosacral neuritis. In a letter dated October 19, 2006, appellant contended that as she was
found disabled by the SSA, she was entitled to benefits under the Federal Employees’
Compensation Act.1
Appellant alleged that she was entitled to augmented compensation based on the mental
condition of her 21-year-old son. She submitted a September 10, 2003 report from her son’s
physician, Dr. Daniel B. Reising, a Board-certified psychiatrist, who diagnosed paranoid
schizophrenia with delusions and noncompliance with his medication. Dr. Reising opined that
this condition was disabling and life-long. On August 2, 2005 Dr. Aqeeb Ahmad, a psychiatrist,
diagnosed impulse control disorder and social phobia and opined that appellant’s son could not
work. The Office requested additional information by letter dated August 10, 2005. In a note
dated August 24, 2000, Dr. Michael J. Shanker, a Board-certified psychiatrist, opined that
appellant’s son was unable to attend school since March 2000 and diagnosed anxiety and
depression. By letter dated October 12, 2006, the Office advised appellant that she had not
submitted sufficient medical evidence to establish that her son was not capable of self-support.2
Appellant submitted an affidavit dated February 5, 2001 describing the course of
treatment following her employment injury. She contended that her supervisor harassed her due
to her employment injury, refusing to allow her to take her medication, made fun of the way she
walked, did not accurately report her time and yelled at her.
Appellant testified at her oral hearing on October 19, 2006 that she was working part time
as a social service aide worker. In a report dated November 22, 2006, Dr. A.G. Lipede, a general
practitioner, described her history of injury. He noted that appellant had gained weight since her
injury which further aggravated her foot condition. Dr. Lipede reported findings on physical
examination and diagnosed left reflex sympathetic dystrophy, left plantar fasciitis, left residual
tarsal tunnel syndrome, plantar nerve entrapment syndrome, plantar fibrosis with perineural
fibrosis of the medial and plantar nerve, right tarsal tunnel syndrome and right plantar fasciitis as
due to appellant’s 1999 employment injury. He provided additional impairment ratings. By
decision dated December 14, 2006, the Office hearing representative denied appellant’s claim for
an additional schedule award and affirmed the March 3, 2005 decision.
On November 3, 2006 appellant filed a claim requesting wage-loss compensation from
May 10, 2004 to the present. She indicated that she had worked for the United Cerebral Palsy of
Greater St. Louis from October 7, 2002 through May 10, 2004. The Office requested additional
information by letter dated December 1, 2006. Dr. Reed completed a report on December 13,
2006 and noted findings of pain on palpation of the scar and medical aspect of the left ankle,
edema of the left ankle with hyperesthesia, loss of range of motion of the left ankle and absent
posterior tibial pulse in the left ankle. She diagnosed plantar fasciitis left foot, residual tarsal
tunnel syndrome left foot, reflex sympathetic dystrophy and plantar fibrosis with perineural
1

The findings of other federal agencies or bodies are not dispositive with regard to questions arising under the
Act. Donney T. Drennon-Gala, 56 ECAB 469, 478 (2005).
2

This letter does not purport to be a final decision as it does not contain appeal rights. However, even if
considered a final decision, the Board does not have jurisdiction to consider this issue as appellant did seek an
appeal within one year. See 20 C.F.R. § 501.3(d)(2).

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fibrosis of the medial and plantar nerves. Dr. Reed stated that appellant’s current conditions
were a result of her 1998 employment injury and unsuccessful surgery.
In a February 28, 2007 report, Dr. Lipede correlated his findings to the American
Medical Association, Guides to the Evaluation of Permanent Impairment. Appellant requested
reconsideration on February 28 and March 6, 2007.
By decision dated March 9, 2007, the Office denied appellant’s claim for a recurrence of
disability beginning May 10, 2004. It noted that her physicians did not consider her
private-sector work when addressing her current disability. Appellant requested an oral hearing.
By decision dated May 11, 2007, the Office reviewed appellant’s schedule award claim
on the merits and denied modification of its December 14, 2006 decision.
In a statement dated October 11, 2007, appellant requested wage-loss compensation
beginning October 5, 2004, medical coverage, life insurance, permanent total disability and the
inclusion of her adult son as a dependant.3 She submitted a November 1, 2006 report from
Dr. Nadim T. Nasrallah, a chiropractor, who diagnosed myofascitis of the lumbosacral spine,
lumbar syndrome, thoracic myofascitis and cervical brachial neuritis.4 In a report dated July 5,
2002, Dr. Williams opined that appellant was disabled. Dr. William F. Hoffman, a Boardcertified neurosurgeon, examined her on August 31, 2000 and opined that she had unresolved
ankle problems with swelling and tenderness. Appellant resubmitted Dr. Collins’ July 26, 2000
note and Dr. Wittock’s September 15, 2004 report as well as her affidavit.
Dr. Collins completed an additional report on March 26, 2007 and noted appellant’s
medical history. He advised that she had difficulty with prolonged walking and standing which
resulted in pain in the left heel. Dr. Collins recommended additional electrodiagnostic studies.
Dr. Reed completed a report on October 9, 2007 and opined that appellant could not have
continued to carry mail. She stated that she did not believe that appellant was exhibiting
symptom magnification. Dr. Reed reported findings of pain on palpation of the scar and medial
aspect of her left ankle, edema of the left ankle with hyperesthesia, loss of range of motion and
absent posterior tibial pulse. She diagnosed plantar fasciitis left foot, residual tarsal tunnel
syndrome in the left foot, reflex sympathetic dystrophy and perineural fibrosis of the medial and
plantar nerves. Dr. Reed opined that appellant’s current condition was the result of her 1998

3

The Act provides for payment of compensation for wage loss, schedule awards, medical and related benefits and
vocational rehabilitation services for conditions arising from injuries sustained in the performance of duty while in
service to the United States. Veronica Williams, 56 ECAB 367 (2005). The Board has found that payments under
the Act are limited to the amounts and circumstances specified; neither the Office nor the Board has the authority to
enlarge the terms or the Act or make an award under terms other than those specified in the statute. Albert S.
Becker, 56 ECAB 733 (2005). The Act does not provide for complete medical insurance coverage, life insurance or
compensation for permanent total disability. Therefore, appellant cannot receive these remedies.
4

Section 8101(2) of the Act provides that the term “‘physician’ … includes chiropractors only to the extent that
their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist.” 5 U.S.C. § 8101(2). As Dr. Nasrallah did not diagnose a
subluxation of the spine, he is not considered a physician for the purposes of the Act.

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employment injury and resulting surgery in 2000. She stated that since 2000 appellant had
worked in positions which did not require walking, standing or lifting.
Appellant testified at the October 11, 2007 oral hearing that she had not appealed her
emotional condition claim. The hearing representative informed her that she was not entitled to
life insurance or permanent disability under the Act. Appellant described her post-federal
employment and stated that she stopped working in May 2004 because she could no longer
tolerate the pain. She stated that she was currently working part-time mentoring for the state of
Missouri.
By decision dated January 4, 2008, the hearing representative affirmed the March 9, 2001
decision, denying appellant’s claim for recurrence of disability on the grounds that she failed to
submit rationalized medical opinion evidence.
Appellant requested reconsideration on July 23, 2008 and submitted a May 19, 2008
report from Dr. Reed, who opined that appellant was permanently disabled due to her
employment-related injuries of plantar fasciitis and heel spurs on the left foot. Dr. Reed noted
appellant’s duties in the private sector finding that she had limited walking and no weight
bearing that would lead to her current condition. She stated that appellant’s left foot surgery was
not successful and as a result appellant developed plantar fibrosis with perineural fibrosis of the
medial and plantar nerves and residual tarsal tunnel syndrome and enlarged veins. Dr. Reed
stated that appellant was totally and permanently disabled since April 2004 due to surgical
complications of scar tissue formation, swelling, peripheral and neurovascular complications,
failure of the procedure, recurrence of the original condition with worsening, damage to vascular
structures and significant and chronic pain. She reviewed the medical history and concluded that
appellant was permanently and totally disabled due to her employment injury.
By decision dated September 22, 2008, the Office denied modification of its January 4,
2008 decision. It found that Dr. Reed’s report was not based on a complete and accurate medical
background as she did not discuss the lack of electrodiagnostic findings in July 2000.
LEGAL PRECEDENT
Under the Act,5 the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury.6 Disability, is
thus not synonymous with physical impairment, which may or may not result in incapacity to
earn wages. An employee who has a physical impairment causally related to a federal
employment injury, but who nevertheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used in the Act.7 Furthermore,
whether a particular injury causes an employee to be disabled for employment and the duration

5

5 U.S.C. §§ 8101-8193.

6

20 C.F.R. § 10.5(f).

7

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

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of that disability are medical issues which must be proved by a preponderance of the reliable,
probative and substantial medical evidence.8
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.9
For each period of disability claimed, appellant has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provide by preponderance of the reliable probative and substantial medical evidence.10 The
Board will not require the Office to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.11
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. The Board has stated that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurts too much to work, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.12
ANALYSIS
The Office accepted appellant’s claim for bilateral plantar fasciitis and aggravation of
heel spurs. Appellant underwent corrective surgery on February 29, 2000. On July 19, 2000
Dr. Tate, a Board-certified neurologist, found that appellant had normal electrodiagnostic testing
of the left lower extremity and diagnosed symptom magnification. Dr. Collins, appellant’s
attending physician and a podiatrist, examined appellant on July 26, 2000 and found no objective
findings to correlate with her residual symptoms. He concluded that she could return to full-duty
8

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

20 C.F.R. § 10.5(x).

10

Fereidoon Kharabi, supra note 8.

11

William A. Archer 55 ECAB 674, 679 (2004).

12

Id.

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work. Appellant did not return to work at the employing establishment, but filed a claim for an
emotional condition which was not accepted by the Office. The Office terminated her
compensation benefits and she there after worked in the private sector.
On November 3, 2006 appellant requested wage-loss compensation beginning
May 10, 2004. She stated that she stopped her private-sector job as she could no longer tolerate
the pain.
On October 9, 2007 and May 19, 2008 Dr. Reed addressed appellant’s disability for
work. She stated that appellant could not have continued to carry mail and that she did not
believe that appellant was exhibiting symptom magnification. Dr. Reed provided diagnoses of
appellant’s current conditions and opined that they were causally related to her accepted
employment injuries. She noted that appellant was not required to perform walking or standing
in her private-sector employment. Dr. Reed concluded that appellant was totally and
permanently disabled since April 2004 due to surgical complications. These reports are not
sufficient to meet her burden of proof it does not establish that she was disabled for work
beginning May 10, 2004. The Office has accepted that appellant continued to experience
medical residuals due to her accepted condition and has authorized medical treatment. The issue
is whether she is disabled and entitled to wage-loss benefits due to the accepted conditions.
Clearly, appellant continued to work in the private sector after 2000 and was in fact working at
the time of her oral hearing in 2007. These reports do not address a spontaneous change in her
employment-related condition which rendered her disabled beginning in May 2004. Although
Dr. Reed provided a period of disability beginning in April 2004, she did not explain how the
condition appellant experienced prevented her from earning wages in the private sector where
she was not required to perform excessive walking or standing.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
sustained a recurrence of disability beginning May 10, 2004, causally related to her
December 29, 1998 employment injury.

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ORDER
IT IS HEREBY ORDERED THAT September 22 and January 4, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 2, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
NELLIS AIR FORCE BASE, NV, Employer
__________________________________________

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

Docket No. 16-0139
Issued: March 1, 2016

Case Submitted on the Record

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

JURISDICTION
On November 2, 2015 appellant filed a timely appeal of an October 14, 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 the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty.
FACTUAL HISTORY
On April 22, 2015 appellant then a 36-year-old aircraft overhaul leader, filed a traumatic
injury claim (Form CA-1) alleging that on April 21, 2015, while performing aircraft
maintenance, he began to feel lightheaded and vomited several times. He did not stop work.
1

5 U.S.C. § 8101 et seq.

By letter dated April 28, 2015, OWCP advised appellant of the type of evidence needed
to establish his claim, particularly requesting that he submit a physician’s reasoned opinion
addressing the relationship of his claimed condition and specific employment factors.
On April 21, 2015 appellant was treated by Dr. David L. Watson, Board-certified in
emergency medicine, who diagnosed dehydration. Dr. Watson provided discharge instructions
for an upper respiratory infection, diarrhea, allergy, and sinus. He recommended that appellant
stay hydrated and drink frequent sips of clear liquid and follow up with his primary care
physician. Also submitted was a position description and core personnel document for an
aircraft overhaul leader.2
In a decision dated June 5, 2015, OWCP denied appellant’s claim for a traumatic injury
finding that he had failed to establish an injury or medical condition causally related to the
accepted work events.
In an appeal request form dated June 17, 2015, appellant requested reconsideration. In an
undated statement he referenced attached documentation in support of his claim which he
believed would clear up any causal relationship issues. Appellant submitted an Air Force patient
care report dated April 21, 2015, prepared by an emergency medical technician, who treated
appellant for abdominal and gastrointestinal issues, nausea/vomiting and syncope/fainting. He
reported working on a jet when he started feeling dizzy and lightheaded and sat down and
vomited. The technician noted that appellant began to vomit in the ambulance as he was
transported to the hospital.
Appellant submitted emergency department provider order sheets dated April 21, 2015
from Dr. Watson who prescribed internal venous fluids and blood work. In an emergency
physician record dated April 21, 2015, Dr. Watson noted that appellant reported vomiting from
consuming spoiled food the previous night. Appellant noted experiencing cramping, abdominal
pain, nausea/vomiting with syncope. Dr. Watson diagnosed volume depletion, vomiting and
dehydration and discharged appellant. In an emergency care and treatment record dated
April 21, 2015, he noted appellant’s complaints of nausea and vomiting. Dr. Watson diagnosed
nausea/vomiting, syncope and dehydration. In emergency department nursing and data report, a
nurse noted treating appellant for nausea, vomiting, and possible syncope. She noted that
appellant was discharged home.
In a decision dated October 14, 2015, OWCP denied modification of the decision dated
June 5, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
2

The record contains an authorization for examination or treatment (Form CA-16) dated April 21, 2015. The
employing establishment advised that appellant reported experiencing severe light headiness and nausea while
working and vomited several times. The attending physician’s section of the CA-16 form was not completed.

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of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
It is not disputed that on April 21, 2015 appellant was performing aircraft maintenance
duties. It is also not disputed that he was diagnosed with nausea/vomiting, syncope and
dehydration. However, appellant has not submitted sufficient medical evidence to establish that
his diagnosed conditions were caused or aggravated by the April 21, 2015 incident.
The medical reports from Dr. Watson noted that appellant reported vomiting from
consuming spoiled food the previous night. Appellant noted experiencing cramping, abdominal
pain, nausea/vomiting with syncope. Dr. Watson diagnosed volume depletion, vomiting and
dehydration, and discharged appellant from his care. These reports are insufficient to establish
the claim as Dr. Watson did not provide a history of the April 21, 2015 work incident or reflect
knowledge of appellant’s work duties that day,6 or specifically address how his employment
activities had caused or aggravated a diagnosed medical condition.7 Rather, Dr. Watson noted
that appellant reported the diagnosed nausea and vomiting were caused by eating spoiled food
the previous night.
Appellant submitted emergency department nursing notes dated April 21, 2015.
However, the Board has held that treatment notes signed by a nurse are not considered medical
3

Gary J. Watling, 52 ECAB 357 (2001).

4

T.H., 59 ECAB 388 (2008).

5

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

6

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
7

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

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evidence under FECA.8 Similarly, appellant submitted a report dated April 21, 2015, prepared
by an emergency medical technician who treated appellant for abdominal and gastrointestinal
issues, nausea/vomiting and syncope/fainting. As there is no evidence that the document was
prepared by a physician, it also is not considered medical evidence.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.10 Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.
On appeal appellant asserts that OWCP had improperly denied his claim and believed he
submitted sufficient evidence to establish that his diagnosed nausea, vomiting and dehydration
were causally related to his employment. He has not submitted a physician’s report, based on an
accurate history, which describes how work activities on April 21, 2015 caused or aggravated his
diagnosed conditions of nausea, vomiting and dehydration.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed conditions were causally related to his employment.

8

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render amedical opinion under the FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law).
9

Id.

10

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the October 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
PUBLIC WORKS CENTER, NAVAL STATION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 14-419
Issued: August 14, 2014

Case Submitted on the Record

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

JURISDICTION
On December 17, 2013 appellant filed a timely appeal from a September 11, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,369.55 for the period April 5, 2010 to
February 9, 2013, because he received full compensation benefits concurrent with Social
Security Act (SSA) retirement benefits; (2) whether OWCP properly denied waiver of the
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted financial documents. As the Board’s review is limited to evidence in the case
record at the time OWCP made its decision over which the Board has jurisdiction, the Board cannot review this
evidence submitted for the first time on appeal. D.B., Docket No. 12-1653 (issued March 26, 2013); 20 C.F.R.
§ 501.2(c)(1).

recovery of the overpayment; and (3) whether OWCP properly required repayment of the
overpayment by deducting $200.00 from appellant’s continuing compensation.
On appeal, appellant disagreed with OWCP’s finding that he had a surplus of money to
pay back the overpayment. He noted that it is a hardship for him to pay all his bills. Appellant
submitted financial documentation that was not provided to OWCP.
FACTUAL HISTORY
On October 26, 1988 appellant, then a 45-year-old carpenter, sustained an injury while
working with a jackhammer. OWCP accepted his claim for acceleration/precipitation of bilateral
carpal tunnel syndrome and permanent aggravation of osteoarthritis of the right thumb. It paid
compensation benefits.
Appellant’s compensation was suspended in August 2009 and reinstated beginning
April 5, 2010. Deductions were made for a prior overpayment, which has since been paid in full,
but no deductions were made for his Federal Employees Retirement System (FERS) offset.
On January 22, 2013 OWCP received a January 23, 2013 letter from the Department of
the Treasury that informed appellant that he had a delinquent debt and that his SSA benefits
would be reduced to pay the debt. By letter dated January 25, 2013, it notified appellant that it
appeared that he had received SSA benefits and that he had not reported on his annual Form
1032. OWCP asked him to provide a completed Form 1032 and statement with regard to
whether he received benefits from SSA. No response was received.
In a February 6, 2013 memorandum, OWCP outlined the FERS offset. Effective
December 1, 2008, the FERS offset was $84.18 for the portion of appellant’s SSA benefits
earned during his employment with the Federal Government. On December 1, 2009 there was a
5.8 percent increase of $4.88, which equaled an offset for FERS of $89.06. On December 1,
2011 an increase of 3.6 percent yielded an increase of $3.21 or $92.27. As of December 1, 2012,
an increase of 1.7 percent equaled $1.57 or $93.84. OWCP calculated the FERS offset amount
for the period April 5, 2010 through November 30, 2011 as follows: for the period April 5 to
November 30, 2010 the figure $89.06 was divided by 28 days to yield $3.18 and multiplied by
605 days to equal $1,923.90; for the FERS offset amount for the period December 1, 2011
through November 30, 2012, was divided by 28 to yield $3.30 and multiplied by 366 days equal
$1,207.80; for the period December 1, 2012 through February 9, 2013 $93.84 was divided by 28
to yield $3.35 and multiplied by 71 days equal $237.85. It added the FERS offset amount
$1,923.90 plus $1,207.80 plus $237.85 which total an overpayment of $3,369.55.
By decision dated February 7, 2013, OWCP made a preliminary determination that
appellant was overpaid in the amount of $3,369.55 because no deductions were made for the
FERS offset when his compensation was reinstated from April 5, 2010 to February 9, 2013. It
found him without fault in the creation of the overpayment and informed him of the necessary
actions to take to appeal the decision.
On February 18, 2013 appellant requested a prerecoupment hearing with an OWCP
hearing representative. He stated that he did not receive any SSA from government employment,
rather all came from the private sector. Appellant also noted that, if the overpayment occurred, it
was through no fault of his own and he requested a waiver. In an overpayment financial
2

questionnaire, he indicated that he had $20.00 cash on hand, $6.00 checking account balance
plus $0.00 in savings, stocks and bonds or personal property, for total assets of $26.00. For
monthly income, appellant listed $852.00 in social security benefits; $1,282.00 in OWCP
compensation; and $1,008.00 in other benefits, for a total income of $3,142.00. He listed his
monthly expenses as $850.00 for rent or mortgage; $400.00 for food; $150.00 for clothing;
$159.00 for utilities; $200.00 for other expenses. Appellant listed monthly bills of $600.00 to a
credit union, $100.00 to Capital One Bank; and $100.00 to Merrick Bank. He listed his total
monthly expenses as $2,409.00.3
At the hearing held on June 13, 2013, appellant agreed that an overpayment occurred but
reiterated that it was not his fault. He testified that he did not have much cash flow after paying
his bills. The hearing representative reviewed appellant’s financial form, but found that he had
not submitted documentation to support his monthly expenses, such as receipts or cancelled
checks. She kept the record open for 30 days for appellant to submit further documentation.
By decision dated September 11, 2013, the hearing representative found that an
overpayment of compensation existed for the period April 5, 2010 to February 9, 2013 in the
amount of $3,369.55 because OWCP failed to make deductions for the FERS offset. She
affirmed the finding that appellant was without fault in the creation of the overpayment, but
denied waiver of recovery of the overpayment. The hearing representative found that appellant
did not establish that recovery would either defeat the purpose of FECA or be against equity and
good conscience because he did not submit adequate documentation of his finances. She
directed recovery of the overpayment by deducting $200.00 from appellant’s compensation
payments until it was paid in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.4
OWCP’s procedures provide that, while SSA benefits are payable concurrently with
FECA benefits, the following restrictions apply: in disability cases, FECA benefits will be
reduced by SSA benefits paid on the basis of age and attributable to the employee’s federal
service.5 The offset of FECA benefits by SSA benefits attributable to employment under FERS
is calculated as follows: where a claimant has received SSA benefits, OWCP will obtain
information from SSA in the amount of the claimant’s benefits beginning with the date of
eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by
3

The correct addition of these figures yields a total of $2,559.00, the amount utilized by the hearing
representative in discussing appellant’s monthly expenses.
4

Id. at § 8116(d). See, D.S., Docket No. 12-689 (issued October 10, 2012); G.B., Docket No. 11-1568 (issued
February 15, 2012); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).
5

See also R.C., Docket No. 09-2131 (issued April 2, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Dual Benefits Chapter 2.1000.4(a) (February 1995); Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11
(February 1995); OWCP does not require an election between FECA benefits and SSA benefits except when they
are attributable to the employee’s federal service.

3

the claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without
the FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual
benefit to determine the amount of benefits which are attributable to federal service and that
amount will be deducted from FECA benefits to obtain the amount of compensation payable.6
ANALYSIS -- ISSUE 1
Appellant received FECA wage-loss compensation and SSA benefits from April 5, 2010
to February 9, 2013. As previously stated, the portion of the SSA benefits he earned as federal
employee as part of his FERS retirement package and the receipt of benefits under FECA and
FERS benefits concurrently is a prohibited dual benefit.7 OWCP requested and SSA provided
information regarding appellant’s applicable SSA rates and their effective dates. Based on these
rates, it determined that the prohibited dual benefits appellant received from April 5, 2010 to
February 9, 2013, created an overpayment in the amount of $3,369.55.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period April 5, 2010 to February 9, 2013 and finds that it properly determined that he
received benefits totaling $3,369.55 for this period, thus creating an overpayment in
compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.8 Section 10.438 of OWCP regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of FECA or be against equity and good conscience.9

6

FECA Bulletin No. 97-09 (issued February 3, 1997). Retirement benefits paid by OPM or SSA can be paid
concurrently with a schedule award without any deduction from FECA benefits.
7

See P.G., Docket No. 13-589 (issued July 9, 2013); FECA Bulletin No. 97-9 (issued February 3, 1997).

8

5 U.S.C. § 8129.

9

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. 20 C.F.R. § 10.437. OWCP’s procedures provide that the assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (June 2009); see W.F., 57 ECAB 705 (2006).

4

Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.10
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.11 Appellant,
however, had the responsibility to provide financial information to OWCP12 and did not do so.
In its preliminary determination dated February 7, 2013, OWCP clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if he failed to furnish the requested financial information within 30 days. It gave
additional notice to appellant of his responsibility to submit further financial documentation at
the telephone conference held on February 18, 2013. Appellant did submit a completed
overpayment questionnaire but did not submit financial information supporting his income and
expenses. As a result OWCP did not have the necessary financial information to determine if
recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience. Appellant did not submit the financial information required under
section 10.438 of OWCP’s regulations, which was necessary to determine his eligibility for
waiver, OWCP properly denied waiver of recovery of the overpayment in compensation in the
amount of $3,369.55.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.13
ANALYSIS -- ISSUE 3
The hearing representative determined that $200.00 would be withheld from appellant’s
continuing compensation payments until the overpayment was recovered. In making this
determination she noted that he failed to submit supporting financial documentation. The
hearing representative further noted that appellant had a surplus of $583.00 after deducting his
monthly expenses of $2,559.00 from his monthly income of $3,142.00. OWCP did not abuse its
discretion in directing OWCP to recover the overpayment by withholding $200.00 a month from
10

20 C.F.R. § 10.438(b).

11

Id.

12

Id. at 10.438; see also K.P., Docket No. 12-1450 (issued April 4, 2013).

13

The Board has jurisdiction to review the issue of recovery of an overpayment in those cases where OWCP
seeks recovery from continuing compensation benefits. See Desiderio Martinez, 55 ECAB 245, 251 (2004); see
also J.M., Docket No. 10-1913 (issued July 11, 2011).

5

his continuing compensation benefits. The Board will affirm OWCP’s September 11, 2013
decision on the rate of recovery.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,369.55 for the period April 5, 2010 to February 9, 2013
because he received full compensation benefits concurrent with SSA retirement benefits. The
Board further finds that OWCP properly found that the overpayment was not subject to waiver
and properly required repayment of the compensation by deducting $200.00 each period from his
continuing compensation payment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 11, 2013 is affirmed.
Issued: August 14, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Minneapolis, MN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1658
Issued: May 3, 2017

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 August 15, 2016 appellant, through counsel, filed a timely appeal from a July 7, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issues are: (1) whether appellant established that he sustained a recurrence of
disability commencing February 11, 2015 causally related to his March 7, 2013 employment
injury; and (2) whether he sustained a back injury as a consequence of his employment injury.
FACTUAL HISTORY
On March 13, 2013 appellant, then a 35-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on March 7, 2013 he fractured his right ankle
when he slipped and fell while stepping out of his vehicle in the employing establishment
parking lot. He stopped work. On March 14, 2013 appellant underwent right ankle surgery.
OWCP accepted his claim for closed fracture of the right ankle and paid compensation benefits.
On July 25, 2013 appellant returned to part-time limited-duty work for four hours per
day. He stopped work again on July 29, 2013 and filed a claim for recurrence of disability (Form
CA-2a). OWCP accepted appellant’s recurrence of disability claim and expanded the acceptance
of his claim to include right knee medial collateral ligament (MCL) sprain. It paid wage-loss
compensation benefits. Appellant returned to work part time on October 3, 2013. He stopped
work again on November 17, 2013.3 On May 25, 2014 appellant returned to his original
position.
Appellant continued to receive medical treatment and underwent diagnostic
examinations. In a May 28, 2014 magnetic resonance imaging (MRI) scan examination report of
the right knee, Dr. Nathan D. Block, a Board-certified diagnostic radiologist, observed slight
surface irregularity of the undersurface of the medial meniscal body and mild thickening of the
MCL near its femoral attachment without signal abnormality suggestive of old resolved sprain.
He reported that the examination was otherwise negative. In an August 4, 2014 computerized
tomography (CT) scan report of the right ankle, Dr. Eric J. Weinberg, a Board-certified
diagnostic radiologist, noted postoperative changes along the distal fibula. No definite residual
fracture line or acute findings were confirmed.
In a January 15, 2015 progress note, Dr. Fernando A. Pena, a Board-certified orthopedic
surgeon, examined appellant for status post right ankle surgery performed on March 14, 2013.
He related appellant’s complaints of continued problems and difficulties to the ankle, including
spasms. Dr. Pena reported a completely benign examination with full range of motion of the
ankle, hind foot, and midfoot joints. Neurovascular examination was also grossly intact. He
diagnosed status post right ankle open reduction internal fixation (ORIF). Dr. Pena explained
that he still did not understand the source of appellant’s pain, especially since the August 2014
CT scan did not show any obvious pathology. He recommended an additional MRI scan to
explain the source of appellant’s spasms and cramping. Dr. Pena indicated that appellant could
work with restrictions.
3

Appellant filed various claims for wage-loss compensation beginning November 18, 2013. In a decision dated
April 21, 2014, OWCP denied his claim for disability compensation beginning November 18, 2013. Appellant did
not appeal the April 21, 2014 decision.

2

Appellant underwent the requested MRI scan examination by Dr. Berta Kvamme, a
Board-certified diagnostic radiologist, who indicated in a February 6, 2015 report that appellant
had mild degenerative changes involving the lumbar spine with a component of probable mild
congenital central stenosis to the thecal sac with a superimposed prominent posterior epidural fat
pac and bulge with mild-to-moderate central stenosis at L4-L5.
On February 11, 2015 appellant stopped work again and filed wage-loss compensation
claims (Form CA-7) for the period February 11 to April 4, 2015.
Dr. Pena continued to treat appellant. In work status reports dated February 11 and 20,
2015, he indicated that appellant was unable to work on February 11, 2015 until he had a lumbar
spine consultation which was pending workers’ compensation approval.
In consultation notes dated February 27 and March 27, 2015, Gretchen Zachel, a certified
physician assistant, indicated that appellant was seen for follow-up of significant pain from an
employment injury. She noted that a lumbar spine MRI scan showed mild degenerative changes
in appellant’s lumbar spine. Upon examination, Ms. Zachel observed vertebral tenderness,
spasm, paraspinal tenderness, and trigger points in appellant’s lumbar spine. She also related
appellant’s complaints of pain with lumbar spine extension and lateral rotation to both sides and
pain to palpation over right and left facet joints. Examination of the lower extremities revealed
large degenerative changes and decreased range of motion. Ms. Zachel diagnosed right lower
extremity pain, back pain, and neck pain.
By letter dated April 1, 2015, OWCP advised appellant that the evidence of record was
insufficient to establish his claims for disability compensation for the period February 11 to
March 21, 2015 due to a worsening of his March 7, 2013 employment injury. It noted that the
medical evidence received referred to a back condition, but OWCP had only accepted appellant’s
claim for a right knee and ankle condition. OWCP requested that appellant respond to an
attached questionnaire and submit medical evidence to establish that he was unable to work
during the claimed period due to a spontaneous change and worsening of his accepted
conditions. Appellant was afforded 30 days to submit the requested evidence.
Dr. Pena examined appellant again and indicated in a progress note dated April 6, 2015
that appellant was not approved for workers’ compensation with regards to appellant’s low back
pain. He diagnosed status post right ankle ORIF. Dr. Pena explained that he could neither
guarantee nor rule out that appellant’s back condition was connected to his ankle injury. He
opined that there was a possibility that appellant had some aggravation of his back given the fact
that he had been limping and walking unevenly on his ankle joint. Dr. Pena again opined that
appellant was unable to work beginning February 11, 2015.
By decision dated April 22, 2015, OWCP denied appellant’s claim for compensation for
a recurrence of disability for the period February 11 to April 4, 2015 finding that the medical
evidence of record failed to establish that he was unable to work as a result of his March 7, 2013
employment injury. It determined that the medical evidence was insufficient to demonstrate that
he sustained a change or worsening of his accepted right knee and ankle conditions to the extent
that he was unable to work.

3

On May 19, 2015 OWCP received appellant’s request, through counsel, for a hearing
before an OWCP hearing representative. Appellant continued to file various wage-loss
compensation claims (Form CA-7).
Dr. Matthew Thorson, Board-certified in pain medicine and anesthesiology, related in an
April 23, 2015 report that appellant complained of pain in his neck, upper back with spasm, right
foot, right knee, and right hip. He noted that the precipitating event was an employment injury.
Dr. Thorson reviewed appellant’s history and indicated that an imaging study revealed right knee
MCL partial tear and mild lumbar stenosis. Upon examination, he observed no acute distress.
Dr. Thorson diagnosed right knee arthralgia, right knee sprain, chronic pain syndrome, and
lumbar spinal stenosis. He reported that appellant’s low back was not related to his accepted
injury, but his knee was. Dr. Thorson noted that appellant had become a chronic pain, narcotic
patient because of the length of time it had taken to get his knee injection approved.
Appellant continued to receive treatment from Ms. Zachel for follow-up of pain
management. In an April 24, 2015 consultation note, Ms. Zachel provided physical examination
findings similar to her previous reports. Examination of the lower extremities revealed large
joint degenerative changes and decreased range of motion. Ms. Zachel diagnosed neck pain,
back pain, and right lower extremity pain.
In progress notes dated May 19 to October 27, 2015, Courtney Freeman, a physician
assistant, related appellant’s complaints of pain in his neck radiating to the bilateral shoulders,
upper and lower back, right ankle, right foot, right knee, and right hip. She diagnosed chronic
pain syndrome, thoracic pain, lumbar spinal stenosis, right knee arthralgia, and right knee
sprain/strain. In an August 10, 2015 form, Ms. Freeman indicated that appellant was unable to
work beginning August 10, 2015.
Dr. Pena continued to treat appellant. In an October 26, 2015 follow-up report, he noted
that appellant complained of pain and swelling on the lateral ankle and increasing back pain after
wearing a walking boot. Dr. Pena related that appellant had been back to work intermittently
between May 2014 and March 2015, but was not currently working. On examination, he
observed full range of motion of the ankle, hind foot, and midfoot joints. Neurovascular
examination was intact. Dr. Pena diagnosed right ankle pain of unknown etiology and status
post right ankle surgery. He indicated that he informed appellant of the possibility that the
walking boot and altering his gait were contributing factors to his hip and back pain. On a
separate form, Dr. Pena noted that appellant was unable to work beginning October 27, 2015. In
a December 14, 2015 order form, he recommended physical therapy to address pain and swelling
likely due to the disuse of the ankle.
In a November 24, 2015 report, Cole Weiske, a certified physician assistant, related
appellant’s complaints of right knee pain since a March 2013 employment injury. He reviewed
appellant’s history and conducted an examination. Mr. Weiske diagnosed lower extremity
segmental dysfunction, right knee sprain, and right knee joint pain. He opined that all diagnoses
were causally related to the March 7, 2013 accident.
A hearing was held on December 22, 2015. Appellant, who was represented by counsel,
confirmed that his last day of work was February 10, 2015. He described his duties as a medical

4

support assistant, which included proper scheduling of appointments, completing doctor’s orders
for patients, assisting patients to the appropriate department, and performing clerical duties such
as faxing and data entry. Appellant noted that his job was primarily sedentary, but he walked
around a bit to locate doctors or nurses. He testified that he began to notice back pain around
April 2013 when he was placed in a walking boot. Appellant explained that he used a walking
boot until May 2013, then he used a hinged knee brace, and a cane. He alleged that his back pain
worsened during the time. Appellant believed that his knee injury and the boot caused uneven
walking which contributed to his back condition.
Appellant further discussed the medical providers who were treating him for his lower
extremity and back pain. He noted that Dr. Pena initially advised him not to work in
February 2015 due to persistent right ankle, right knee, and lower back pain. Appellant related
that Dr. Thorson also submitted various requests for injections and a knee scope for his right
knee, but OWCP denied those requests. He reported that Dr. Thorson took him out of work in
September or October 2015. Counsel asserted that Dr. Pena and Dr. Thorson would be
submitting statements within 30 days.
In a decision dated February 10, 2016, an OWCP hearing representative affirmed the
April 22, 2015 decision which denied appellant’s recurrence of disability claim. He found that
the evidence of record did not support disability from work beginning February 11, 2015 due to
the worsening or residuals of the March 7, 2013 employment injury. The hearing representative
further determined that the medical evidence of record lacked sufficient rationale to establish that
appellant sustained a consequential lumbar condition due to his March 7, 2013 employment
injury.
On April 11, 2016 appellant, through counsel, requested reconsideration. In a statement
dated April 7, 2016, counsel noted that in a March 29, 2016 report, Dr. Thorson discussed his
opinion that appellant’s altered gait caused or at least contributed to appellant’s lumbar
condition. He asserted that the evidence demonstrated that appellant suffered a consequential
injury to his lumbar spine and that he had additional restrictions which rendered him incapable of
performing his job. Counsel requested that OWCP accept the consequential lumbar condition
and pay wage-loss compensation from February 11, 2015 forward. Appellant resubmitted
diagnostic examination reports and Dr. Pena’s reports from 2015.
Dr. Thorson examined appellant again and in a report dated March 29, 2016, he indicated
that he had treated appellant since January 2014 for work-related injuries to the right ankle and
right knee. He explained that appellant had a history of a severely fractured right ankle and right
medial collateral ligament injury of the right knee. Dr. Thorson related that he subsequently
treated appellant for low back pain secondary to lumbar spinal stenosis and spondylosis. He
opined that appellant developed the low back issue secondary to the initial lower extremity issue.
Dr. Thorson explained that appellant had to walk with an altered gait, which may have advanced
the low back pain issue. He opined that based on the February 2015 MRI scan findings of spinal
stenosis and spondylosis, clinical correlation of pain and gait pattern, and overall patient history,
it was within a reasonable degree of medical certainty “that the altered gait caused by the initial
right ankle and right knee injuries caused or at least materially contributed to the lumbar
stenosis/spondylosis.” Dr. Thorson reported that with regard to the low back condition, appellant
was capable of working with restrictions.

5

In a report dated May 11, 2016, Dr. Pena indicated that he treated appellant regarding his
right ankle pain. He noted that appellant’s last visit was on October 26, 2015. Dr. Pena related
that appellant wished to discuss his workmen’s compensation case and asked about a letter from
his lawyer. He reported no new symptoms or other concerns. Dr. Pena reported that an
examination was not performed and diagnosed status post right ankle ORIF surgery completed
on March 14, 2013.
By decision dated July 7, 2016, OWCP denied modification of the February 10, 2016
decision. It determined that the medical evidence of record attributed appellant’s current
symptoms and inability to work to low back pain, and not his accepted right ankle and leg
conditions. OWCP found that appellant failed to establish that his low back condition or his
inability to work on February 11, 2015 was causally related to the March 7, 2013 employment
injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.4 For each period of disability claimed, an employee has the burden of establishing a
causal relationship between his or her recurrence of disability and the accepted employment
injury.5
OWCP’s implementing regulations define a recurrence of disability as an inability to
work, after an employee has returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment.6 This term also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn, (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.7
When an employee claims a recurrence of disability causally related to an accepted
employment injury, he or she has the burden of establishing by the weight of the reliable,
probative, and substantial medical evidence that the claimed recurrence of disability is causally
related to the accepted injury.8 This burden includes the necessity of furnishing evidence from a
qualified physician who, on the basis of a complete and accurate factual and medical history,
concludes that the disabling condition is causally related to the employment injury and supports
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

Dominic M. Descaled, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

6

20 C.F.R. § 10.5(x).

7

Id.

8

Alfredo Rodriguez, 47 ECAB 437 (1996).

6

that conclusion with sound medical reasoning.9 For each period of disability claimed, the
employee must establish that he was disabled for work as a result of the accepted employment
injury. The Board will not require OWCP to pay compensation for disability for which
compensation is claimed. To do so would essentially allow an employee to self-certify his or her
disability and entitlement to compensation.10
ANALYSIS -- ISSUE 1
OWCP accepted that on March 7, 2013 appellant sustained a closed fracture of the right
ankle and MCL sprain of the right knee when he slipped and fell at work. He underwent right
ankle surgery and was placed off work. On May 25, 2014 appellant returned to work. He
stopped work again on February 11, 2015 and filed various claims for wage-loss compensation.
OWCP denied appellant’s recurrence of disability claims finding that he had failed to provide
sufficient medical evidence to establish that his March 7, 2013 work-related injuries changed or
worsened to the extent that he was no longer able to work. The Board finds that the medical
evidence of record is insufficient to establish that appellant was disabled from work beginning
February 11, 2015 as a result of his work-related injury.
Appellant received medical treatment from Dr. Pena during the claimed period of
disability. In work status reports dated February 11 to April 6, 2015, he indicated that appellant
could not work beginning February 11, 2015 until he underwent a lumbar consultation.
Although Dr. Pena advised that appellant could not work beginning February 11, 2015, he did
not provide any opinion on the cause of appellant’s inability to work. The Board has found that
medical evidence which does not offer any opinion regarding the cause of disability is of limited
probative value on that issue.11 Dr. Pena further related in an October 26, 2015 report that
appellant had been on and off work between May 2014 and March 2015. He noted that appellant
complained of increasing pain in his lateral ankle and back. Dr. Pena diagnosed right ankle pain
of unknown etiology and status post right ankle surgery. In a work status form, he noted that
appellant was unable to work. However, Dr. Pena did not address any specific period of
disability, but merely noted in general terms that appellant had been off work intermittently from
May 2014 and March 2015. Moreover, he failed to explain whether appellant’s inability to work
was causally related to his March 7, 2013 employment injury or otherwise provide medical
reasoning for why appellant’s current symptoms or disability was due to his work-related right
knee and ankle injuries. For these reasons, the Board finds that Dr. Pena’s reports are
insufficient to establish appellant’s recurrence of disability claim.12
Appellant also received treatment from various physician assistants, including
Ms. Zachel, Ms. Freeman, and Mr. Weiske in reports dated February 27 to November 24, 2015.
9

Nicolea Bruso, 33 ECAB 1138 (1982).

10

Amelia S. Jefferson, 57 ECAB 183 (2005).

11

J.H., Docket No. 15-1877 (issued May 3, 2016); Michael E. Smith, 50 ECAB 313 (1999).

12

See William A. Archer, 55 ECAB 674 (2004) (the Board will not require OWCP to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of claimed disability with
medical rationale).

7

These reports, however, are of no probative value to establish appellant’s recurrence of disability
claim as physician assistants are not considered “physicians” under FECA.13
There are no other medical reports of record which address the issue of appellant’s
disability beginning February 11, 2015. The medical evidence of record fails to establish that
appellant was unable to work beginning February 11, 2015 as a result of his March 7, 2013
employment injury. The Board notes that a May 28, 2014 MRI scan examination of appellant’s
right knee by Dr. Block and an August 4, 2014 CT scan report of appellant’s right ankle by
Dr. Weinberg suggested no significant abnormalities. Accordingly, the medical evidence of
record does not support a spontaneous change or worsening of appellant’s work-related right
ankle and knee injuries to the extent that appellant was no longer able to work.
The Board finds that appellant did not submit evidence to show a change in the nature
and extent of his work-related right ankle and knee injuries. Therefore, appellant did not meet
his burden of proof to establish a recurrence of disability beginning February 11, 2015 causally
related to the March 7, 2013 employment injury.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening event.14 Once the work-connected character of an injury has been
established, the subsequent progression of that condition remains compensable so long as the
worsening is not shown to have been produced by an independent, nonindustrial cause.15 The
basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and
distinct injury, is compensable if it is the direct and natural result of a compensable primary
injury.16
An employee seeking benefits under FECA has the burden of proof to establish a claim
for a consequential injury.17 As part of this burden, he or she must present rationalized medical
opinion evidence, based on a complete factual and medical background, showing causal
13

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. As nurses, physician assistants, physical and occupational therapists are not “physicians” as defined
by FECA, their medical opinions regarding diagnosis and causal relationship are of no probative medical value.
5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).
14

See Kathy A. Kelley, 55 ECAB 206 (2004); Carlos A. Marerro, 50 ECAB 170 (1998).

15

Where a person has a preexisting condition that is not disabling, but which becomes disabling because of
aggravation causally related to the employment, then regardless of the degree of such aggravation, the resulting
disability is compensable. P.B., Docket No. 13-1866 (issued March 7, 2014); S.W., Docket No. 11-1678 (issued
February 22, 2012); Arnold Gustafson, Docket No. 89-438 (issued October 30, 1989).
16

See A. Larson, The Law of Workers’ Compensation § 10.01 (June 2010).

17

J.A., Docket No. 12-603 (issued October 10, 2012).

8

relationship. Rationalized medical evidence is an opinion of reasonable medical certainty and
must be supported by sound medical rationale explaining the nature of the relationship of the
diagnosed condition and the specific employment factors or employment injury.18
ANALYSIS -- ISSUE 2
OWCP accepted appellant’s claim for closed fracture of the right ankle and MCL sprain
of the right knee. Appellant alleges that he developed a lumbar condition as a result of walking
with an altered gait due to his right ankle and right knee conditions. The Board finds that
appellant has not established a consequential back injury as a result of his accepted right ankle
and right knee injuries.
Appellant submitted various reports by Dr. Thorson to support his claim for a
consequential back injury. In an April 23, 2015 report, Dr. Thorson related appellant’s
complaints of pain in his neck, upper back, right foot, right knee, and right hip. He reviewed
appellant’s history and conducted an examination. Dr. Thorson diagnosed right knee arthralgia,
right knee sprain, chronic pain syndrome, and lumbar spinal stenosis. He noted that “the low
back is not related to this case.” In a March 29, 2016 report, Dr. Thorson indicated that he had
treated appellant since January 2014 for work-related injuries to the right ankle and right knee.
He noted that he subsequently treated appellant for low back pain secondary to lumbar spinal
stenosis and spondylosis. Dr. Thorson opined that appellant developed the low back issue
secondary to the initial lower extremity issue. He explained that appellant had to walk with an
altered gait, “which may have” advanced the low back pain issue. Dr. Thorson reported “that the
altered gait caused by the initial right ankle and right knee injuries caused or at least materially
contributed to the lumbar stenosis/spondylosis.” He indicated that appellant could work with
restrictions.
Although Dr. Thorson opined that appellant’s lumbar condition was causally related to
the March 7, 2013 employment incident, he did not provide any medical rationale or explanation
to support his conclusion. The Board has found that a medical report is of limited probative
value on the issue of causal relationship if it contains a conclusion regarding causal relationship
which is unsupported by medical rationale.19 Dr. Thorson attributed appellant’s subsequent back
condition to his work-related right ankle and knee injuries because appellant had to walk with an
altered gait. He did not, however, explain the mechanism of how appellant’s uneven walking
caused or contributed to a subsequent lumbar condition. The Board has held that neither the
mere fact that a disease or condition manifests itself during a period of employment nor the
belief that the disease or condition was caused or aggravated by employment factors or incidents
is sufficient to establish a causal relationship.20
A well-rationalized opinion based on medical rationale is particularly warranted in this
case when Dr. Thorson did not attribute appellant’s lumbar condition to his work-related injuries
18

Id.

19

T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

20

E.J., Docket No. 09-1481 (issued February 19, 2010).

9

until two years after the March 7, 2013 employment injury. Moreover, the medical evidence of
record demonstrates that a February 6, 2015 MRI scan of the lumbar spine by Dr. Kvamme
showed mild degenerative changes with stenosis. Thus, it is unclear if appellant’s current lumbar
complaints and inability to work relate to his March 7, 2013 employment injury or to previously
degenerative changes.21 Accordingly, the Board finds that Dr. Thorson has failed to provide
adequate medical rationale to support his conclusion that appellant sustained a consequential
back injury.
Appellant also received treatment from Dr. Pena for his back symptoms. In an April 6,
2015 progress note, Dr. Pena noted that appellant was not approved for workers’ compensation
with regards to the association between appellant’s low back pain and his right ankle. He
explained that he could neither guarantee nor rule out the fact that appellant’s back was not
causally connected to the ankle injury. Dr. Pena opined that there was a “possibility” that
appellant had some aggravation of his back given the fact that he had been limping and walking
unevenly on his ankle joint. He further indicated in an October 26, 2012 report that there was a
“possibility” that appellant’s walking boot and altering his gait contributed to his hip and back
pain. The Board notes that Dr. Pena’s opinion lacks probative value as it is vague, equivocal,
and speculative in nature.22 He failed to provide any definitive explanation for how appellant
developed a consequential back injury as a result of the March 7, 2013 employment injury. An
award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is causal relationship between his claimed condition and his
employment.23 Accordingly, these reports are insufficient to establish a consequential back
injury.
On appeal, counsel alleges that Dr. Thorson clearly opined that the altered gait caused by
appellant’s work-related right ankle and right knee injuries caused or at least materially
contributed to his lumbar stenosis/spondylosis. As explained above, however, Dr. Thorson’s
reports lacked sufficient medical rationale to support his opinion on causal relationship.
Appellant has not submitted sufficient medical evidence to establish that he sustained a
consequential lumbar condition due to his March 7, 2013 employment injury. Accordingly, the
Board finds that he failed to meet his burden of proof to establish his claim.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § 10.606 through § 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability from work
commencing February 11, 2015 causally related to his March 7, 2013 employment injury. The

21

R.E., Docket No. 14-868 (issued September 24, 2014).

22

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

23

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

10

Board also finds that he has not established a consequential back injury causally related to his
work-related right ankle and right knee injuries.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2017
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TROOP SUPPORT AGENCY, Fort Sill, OK,
Employer
__________________________________________

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

Docket No. 09-47
Issued: February 20, 2009

Case Submitted on the Record

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

JURISDICTION
On October 6, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 15, 2008 nonmerit decision denying his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed between the last merit decision dated
December 11, 2006 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
Appellant, a 39-year-old stock clerk, sustained injuries to his head and shoulder on
April 26, 1978 when he was hit by a door at work. His traumatic injury claim was accepted for a
hematoma of the scalp and left shoulder contusion.
This case has been before the Board on prior appeal. By decision dated December 11,
2006, the Board affirmed the Office’s August 10, 2005 denial of appellant’s May 13, 2004 claim
that he had sustained a recurrence of disability in March 1980. The Board found that the medical
evidence of record failed to establish that his claimed recurrence was causally related to his
April 26, 1978 employment injury.2 The facts and the law contained in that decision are
incorporated herein by reference. On June 15, 2007 the Board denied appellant’s petition for
reconsideration, on the grounds that he had failed to establish an error of fact or law. In an order
dated April 16, 2008, the Board dismissed appellant’s appeal of the December 11, 2006 decision
on the grounds that he did not have the right to appeal from the final decision of the Board.3
On May 9, 2008 appellant requested reconsideration before the Office. In support of his
request, he submitted copies of medical reports and records previously received and reviewed by
the Office. Appellant also submitted a March 9, 2008 letter confirming his request for
reconsideration.
In a decision dated July 15, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”5
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.6

2

Docket No. 06-1337 (issued December 11, 2006).

3

Docket No. 06-1337 (issued April 16, 2008).

4

5 U.S.C. § 8101 et seq.

5

20 C.F.R. § 10.605.

6

Id. at § 10.606.

2

To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant also must file his or her application for review within one year of the date of that
decision.7 In implementing the one-year time limitation, the Office’s procedures provide that the
one-year time limitation period for requesting reconsideration begins on the date of the original
Office decision. However, a right to reconsideration within one year accompanies any
subsequent merit decision on the issues.8
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.9 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.10
Section 10.607(b) provides that the Office will consider an untimely application only if it
demonstrates clear evidence of error by the Office in its most recent merit decision. 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.11 It is not enough merely to show that the evidence could be construed so 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. The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.12
ANALYSIS
The Board has duly reviewed the case record and finds that the Office properly
determined that appellant’s May 9, 2008 request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.13 However a right to
7

Id. at § 10.607(a).

8

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

9

Donna L. Shahin, 55 ECAB 192 (2003).

10

20 C.F.R. § 10.608.

11

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

12

See Alberta Dukes, supra note 11.

13

20 C.F.R. § 10.607(a).

3

reconsideration within one year also accompanies any subsequent merit decision on the issues.14
The last merit decision in this case was the Board’s December 11, 2006 decision. As appellant’s
request for reconsideration was submitted more than one year after the most recent merit
decision of record, it was untimely. Consequently, he must demonstrate clear evidence of error
in the denial of his recurrence claim.15
In support of his request, appellant submitted copies of medical reports and notes
previously received and reviewed by the Office. He also submitted a March 9, 2008 letter
confirming his request for reconsideration. As the notes and reports submitted were previously
of record, they are not a basis for reopening appellant’s claim. The only new evidence submitted
was appellant’s own statement. Appellant’s reiteration of arguments previously presented to the
Office and Board, does not constitute clear evidence of error. The Board’s December 11, 2006
decision, which affirmed the Office’s August 10, 2005 denial of appellant’s recurrence claim,
turned on the sufficiency of the medical evidence. However, appellant did not submit any new
medical evidence in support of his request for reconsideration.
The Board finds that the evidence submitted does not constitute positive, precise and
explicit evidence, which manifests on its face that an error was committed, and fails to raise a
substantial question as to the correctness of the decision. As the evidence submitted is
insufficient to prima facie shift the weight of evidence in favor of appellant and raise a
substantial question as to the correctness of the last merit decision, he has not established clear
evidence of error.16
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.

14

Robert F. Stone, 57 ECAB 292 (2005).

15

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

16

See Veletta C. Coleman, supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 15-1327
Issued: September 1, 2015

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 May 27, 2015 appellant filed a timely appeal from an April 10, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a ratable hearing loss warranting a schedule
award.
FACTUAL HISTORY
On December 8, 2014 appellant, then a 62-year-old machinist, filed an occupational
disease claim alleging that he sustained bilateral sensorineural hearing loss due to noise exposure
1

5 U.S.C. § 8101 et seq.

in the course of his federal employment. He was last exposed to the factors alleged to have
caused his condition on December 2, 2014.
The employing establishment submitted audiograms obtained as part of a hearing
conservation program beginning in 1982. It further submitted noise exposure data.
On December 3, 2014 appellant described his exposure to noise levels in excess of 86
decibels at work and advised that the employing establishment required him to wear hearing
protection beginning in 1984. He related that he had a 32-year history of noise exposure.
On February 10, 2015 OWCP prepared a statement of accepted facts describing
appellant’s exposure to noise at work from 1982 through December 2014. It referred him to
Dr. Kenneth Walker, a Board-certified otolaryngologist, for a second opinion examination.
In a report dated March 31, 2015, Dr. Walker discussed appellant’s extensive history of
exposure to noise at work and noted that he wore hearing protection. He diagnosed bilateral
sensorineural hearing loss due in whole or in part to exposure to noise in the course of
appellant’s federal employment. Dr. Walker recommended that appellant be evaluated for
hearing aids. Audiometric testing performed on March 31, 2015 at the frequency levels of 500,
1,000, 2,000, and 3,000 Hertz (Hz) revealed the decibel losses in the right ear of 10, 10, 20, and
45 decibels, respectively; and decibel losses in the left ear of 15, 15, 20, and 35 decibels.2
On April 8, 2015 OWCP advised appellant that it had accepted his claim for bilateral
sensorineural hearing loss. It further provided him instructions for obtaining authorization for
hearing aids.
On April 9, 2015 an OWCP medical adviser reviewed the medical evidence and
audiometric testing to determine if appellant’s binaural sensorineural hearing loss was ratable for
schedule award purposes. Using Dr. Walker’s audiogram results, he calculated that, under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), appellant had a zero percent binaural hearing loss and a zero
percent loss in both the left and right ears. The medical adviser found that appellant’s total
decibel loss in the right ear at 500, 1,000, 2,000, and 3,000 was 85 decibels and the average loss
was 21 decibels. After he subtracted the fence of 25, appellant had a zero percent monaural loss
of hearing on the right. In the left ear, the decibel losses totaled 85 decibels and averaged 21
decibels. After subtraction of the fence of 25, appellant had a zero percent monaural loss of
hearing on the left. The medical adviser identified the date of maximum medical improvement
as March 31, 2015.
By decision dated April 10, 2015, OWCP denied appellant’s schedule award claim as his
hearing loss was not sufficiently severe to be ratable.

2

The audiologist noted that appellant was last exposed to loud noise at least 16 hours before testing and that the
audiological equipment was last calibrated on November 5, 2014.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides point out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
ANALYSIS
The Board finds that appellant has not established that he has a ratable hearing loss due to
his accepted binaural sensorineural hearing loss. OWCP accepted that he had bilateral
sensorineural hearing loss based on the report of Dr. Walker. As part of his March 31, 2015
otologic evaluation, Dr. Walker had audiometric testing performed.
The medical adviser applied OWCP’s standardized procedures to Dr. Walker’s March 31,
2015 audiogram. Test results for the frequency levels recorded at 500, 1,000, 2,000, and 3,000
Hz on the right revealed decibel losses of 10, 10, 20, and 45 decibels respectively, for a total of
85 decibels. This figure, when divided by 4, resulted in an average hearing loss of 21 decibels.
The average of 21 decibels, when reduced by the 25-decibel fence and multiplied by 1.5, yielded
a zero percent monaural hearing loss of the right ear. Testing for the left ear at the frequency
levels of 500, 1,000, 2,000, and 3,000 Hz revealed decibel losses of 15, 15, 20, and 35 decibels
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

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

A.M.A., Guides 250.

8

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

3

respectively, for a total loss of 85 decibels. The medical adviser divided 85 decibels by 4 to find
an average of 21 decibels, which, when reduced by the 25-decibel fence and multiplied by 1.5,
yielded a zero percent monaural hearing loss of the left ear. As appellant had a monaural hearing
loss of zero percent for the left and right ears, the binaural hearing loss was also zero percent.9
Thus, although he has an employment-related binaural hearing loss, it is not sufficient to show
impairment of hearing according to the A.M.A., Guides.10
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained a ratable hearing loss
warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 10, 2015 is affirmed.
Issued: September 1, 2015
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

9

See W.W., Docket No. 14-643 (issued July 11, 2014).

10

See M.R., Docket No. 15-0529 (issued July 2, 2015); P.V., Docket No. 13-1870 (issued January 7, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
_________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1365
Issued: March 22, 2022

Case Submitted on the Record

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

On September 16, 2021 appellant through counsel, filed a timely appeal from an
August 16, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-1365.
In a letter dated February 10, 2022, counsel requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that counsel ’s request f or the
withdrawal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the withdrawal of the appeal is
granted. The appeal docketed as No. 21-1365 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

2