United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Paducah, KY, Employer
__________________________________________

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

Docket No. 07-205
Issued: June 4, 2007

Case Submitted on the Record

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

JURISDICTION
On October 30, 2006 appellant filed a timely appeal of an October 17, 2006 decision of
the Office of Workers’ Compensation Programs, finding that his application for reconsideration
was untimely and failed to show clear evidence of error. The last decision on the merits of the
claim was dated September 2, 2004. Pursuant to 20 C.F.R. § 501.3(d)(2), the Board’s
jurisdiction is limited to final decisions of the Office issued within one year of the filing of the
appeal. The Board does not have jurisdiction over the merits of the claim on this appeal.
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.
FACTUAL HISTORY
On July 8, 2004 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an emotional condition causally related to
“pressures and demands from management.” In a June 14, 2004 statement, he alleged that

management did not sympathize with employees about important issues, subjected employees to
abuse following any disagreement, did not treat employees equally and used vehicles with little
insulation. Appellant stated that there were changes in mail count and he had to carry more mail
in fewer hours.
By decision dated September 2, 2004, the Office denied the claim for compensation. The
Office determined that appellant had not substantiated a compensable work factor with respect to
his claim.
In a letter dated July 7, 2006, appellant requested reconsideration of his claim. He
submitted a May 15, 2006 “National Arbitration” decision regarding a grievance filed by the
National Rural Letter Carrier’s Association (NLRCA) with respect to a 2002 national mail count.
The NLRCA alleged that the U.S. Postal Service “manipulated or at least attempted to
manipulate the results of the 2002 National Mail Count” by presenting a mail count course prior
to the 2002 national mail count. The arbitrator found that the Postal Service did violate the
National Agreement by instructing and requiring managers to target and correct count totals. In
addition to the arbitrator’s decision, appellant submitted additional medical evidence.
By decision dated October 17, 2006, the Office determined that appellant’s request for
reconsideration was untimely filed. The Office also found that the request and the evidence
submitted failed to establish clear evidence of error in the denial of the claim and, therefore,
appellant was not entitled to merit review of the claim.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.5 The Board has found that the

1

5 U.S.C. § 8128(a).

2

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
4

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim
by: (1) showing that the Office erroneously applied or interpreted a specific point of law; (2) advancing a relevant
legal argument not previously considered by the Office; or (3) constituting relevant and pertinent evidence not
previously considered by the Office; see 20 C.F.R. § 10.606(b).
5

20 C.F.R. § 10.607(a).

2

imposition of this one-year limitation does not constitute an abuse of the discretionary authority
granted the Office under 5 U.S.C. § 8128(a).6
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.7 In accordance with this holding, the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.10 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.12 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.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.14 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.15

6

See Leon D. Faidley, Jr., supra note 2.

7

Leonard E. Redway, 28 ECAB 242 (1977).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

9

See Dean D. Beets, 43 ECAB 1153 (1992).

10

See Leona N. Travis, 43 ECAB 227 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

Leon D. Faidley, Jr., supra note 2.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon., 41 ECAB 458 (1990).

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ANALYSIS
The merit decision in this case was dated September 2, 2004. The request for
reconsideration was dated July 7, 2006. Since this is more than one year after the merit decision,
it is untimely.
The claim for compensation in this case was denied on the grounds that appellant had not
established a compensable work factor with respect to his claim. Appellant submitted an
arbitrator’s decision dated May 15, 2006 and argues that this shows clear evidence of error,
citing the case of Jimmy L. Day.16 In Day the claimant alleged that his emotional condition was
due in part to the employing establishment’s accusation that he engaged in improper conduct
while on duty. On reconsideration, he submitted an Equal Employment Opportunity
Commission decision that specifically found that he was a victim of unlawful retaliation by the
employing establishment. The Board found that this evidence was sufficient to show clear
evidence of error, as it prima facie shifted the weight of the evidence in favor of appellant with
respect to a compensable work factor.
The Day case is clearly distinguishable from the present case. In the instant case,
appellant submitted an arbitrator’s decision regarding a national grievance filed against the
employing establishment relating to a 2002 mail count. The decision does not make any specific
findings with respect to appellant, his specific work situation or the supervisors at his work site.
Appellant had alleged having to carry more mail in fewer hours, without discussing a 2002 mail
count. Unlike Day, the arbitrator’s decision in this case does not relate to specific allegations
made by appellant and make specific findings of error regarding those allegations. The
arbitrator’s decision is not sufficient to prima facie shift the weight of the evidence in favor of
appellant and raise a substantial question as to the correctness of the Office’s decision and,
therefore, it does not establish clear evidence of error. The Board also notes that the medical
evidence submitted after September 2, 2004 is of little probative value, as the initial issue is
whether appellant has established any compensable work factors.17 The medical evidence does
not establish clear evidence of error.
Since appellant’s application for reconsideration was untimely filed, he must show clear
evidence of error in the denial of his claim. He did not establish clear evidence of error in this
case and the Office properly denied merit review.
CONCLUSION
Appellant’s application for reconsideration was untimely and failed to show clear
evidence of error by the Office.

16

48 ECAB 654 (1997).

17

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2006 is affirmed.
Issued: June 4, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, SOUTHERN
DISTRIBUTION & PROCESSING CENTER,
Wallingford, CT, Employer
__________________________________________

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Appearances:
Marc L. Glenn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1409
Issued: May 5, 2010

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 May 18, 2009 appellant filed a timely appeal from a January 6, 2009 decision of the
Office of Workers’ Compensation Programs that denied his traumatic injury claim as untimely.
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 filed a timely claim for compensation under the Federal
Employees’ Compensation Act.1
On appeal, appellant, through his attorney, asserts that his claim was timely because the
employing establishment was aware of the September 29, 2003 incident that caused his claimed
conditions.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 24, 2007 appellant, then a 50-year-old mail handler, filed a claim alleging that
on September 29, 2003 he sustained traumatic injury to his left shoulder, irritation to his left eye
and depression due to a confrontation with Ron Sacco, an employing establishment supervisor.
Mr. Sacco allegedly yelled at him, grabbed and assaulted him, spit at him in the face and poked
him in the left eye. Appellant did not stop work. The employing establishment controverted the
claim. By letter dated September 17, 2007, the Office advised appellant of the evidence needed
to support his claim.
In a September 29, 2003 statement, Claudio Scirocco, appellant’s supervisor, advised that
he heard Mr. Sacco talking to appellant very loudly and giving him instructions that were not in
agreement with Mr. Scirocco’s instructions. He then paged the managers of distribution
operation (MDO) and, when they arrived, appellant stated that he had been physically assaulted
by Mr. Sacco. Mr. Scirocco stated that he did not witness any physical contact. In a
September 29, 2003 statement, Gary Welskopp, a coworker, advised that he heard Mr. Sacco yell
and than grab appellant and violently hit him in the left chest and shoulder. In an undated
statement, Sherese Harrington, a coworker, advised that she heard the supervisor from Tour 1
yelling at the mail handler and bumped him with his arm. In deposition testimony dated
August 1, 2005, Ms. Harrington stated that she heard Mr. Sacco yell and point his finger at
appellant’s chest. When Mr. Sacco walked away, he brushed appellant’s shoulder. In deposition
testimony, also on August 1, 2005, Mr. Welskopp stated that Mr. Sacco struck appellant.2
In an October 7, 2003 statement, William E. Hylton described the September 29, 2003
incident and advised that the assault was being investigated. A November 14, 2003 letter of
warning addressed to Mr. Sacco charged him with conduct unbecoming a postal supervisor
during the September 29, 2003 incident. It noted that the witness statements regarding physical
contact were conflicting; but after reviewing the investigation, it was determined that, if contact
occurred, it was inadvertent and not intentional. Appellant’s actions were also unacceptable and
not within expectations because Mr. Sacco did not communicate properly with him.
In a December 4, 2003 report, Dr. Gilbert, an ophthalmologist, reported a history that
appellant was poked in the left eye on September 29, 2003.3 He noted appellant’s complaint of
pain and itching in the corner of his left eye, provided findings or examination findings including
no sign of trauma to the left eye. Dr. Gilbert diagnosed status post blunt trauma to the left eye,
no sign now; pseudophakia of the left eye; right eye cataract and ocular allergy by history. In a
July 12, 2005 report, Dr. Bollepalli Subbarao, a Board-certified psychiatrist, advised that he
initially evaluated appellant on November 18, 2003. Appellant stated that he had been
manhandled at work by a supervisor. Dr. Subbarao saw appellant in follow up on
December 2, 2003. Appellant was seen on January 19 and February 23, 2004 by Dr. Subbarao’s
associate, was next seen by Dr. Subbarao on April 11, 2005 and last treated on June 28, 2005.
Dr. Subbarao diagnosed major depression, recurrent moderate and post-traumatic stress disorder.
2

The deposition testimony of Ms. Harrington and Mr. Welskopp is incomplete and was given for an Equal
Employment Opportunity Commission civil action in the U.S. District Court for the District of Connecticut.
3

Dr. Gilbert is not further identified.

2

In letters dated October 19, 2007, the Office requested appellant to provide a statement
from Mr. Scirocco advising when he had actual knowledge that he sustained an injury on
September 29, 2003. The employing establishment was asked to address whether a supervisor,
agency physician or dispensary had actual knowledge of an alleged injury within 30 days of
September 29, 2003.
In deposition testimony dated September 1, 2005, Mr. Scirocco stated that he heard
Mr. Sacco loudly give appellant instructions on September 29, 2003, contrary to instructions he
had given appellant. He heard appellant tell the MDOs that there had been physical contact but
Mr. Sacco did not observe this or observe appellant and Mr. Sacco face-to-face. Mr. Scirocco
recalled that later that evening appellant told him that Mr. Sacco had brushed against him.
By decision dated November 21, 2007, the Office denied the claim, finding that it was
not timely filed.
On December 5, 2007 appellant, through his attorney, requested a hearing that was held
on March 14, 2008. He described the September 29, 2003 incident and, the next day, he told
Mr. Scirocco that he had a lot of pain in his eye. Mr. Sacco told appellant to see his personal
physician.
In a January 6, 2009 decision, an Office hearing representative affirmed the
November 21, 2007 decision. The hearing representative found the evidence sufficient to
establish that the September 29, 2003 incident occurred between Mr. Sacco and appellant but
that there is no evidence to establish that appellant reported an injury on that date or within
30 days of the incident. The circumstances were not such as to put a supervisor reasonably on
notice that an injury occurred.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.4 In cases of injury on or after
September 7, 1974, section 8122(a) of the Act provides:
“An original claim for compensation for disability or death must be filed within
three years after the injury or death. Compensation for disability or death,
including medical care in disability cases, may not be allowed if a claim is not
filed within that time unless-(1) the immediate superior had actual knowledge of the injury or death
within 30 days. The knowledge must be such as to put the immediate
superior reasonably on notice of an on-the-job injury or death; or

4

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

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(2) written notice of injury or death as specified in section 8119 was given
within 30 days.”5
Section 8119 of the Act provides that a notice of injury or death shall be given within
30 days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.6 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.7
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability and the
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.8 For actual knowledge of a supervisor to be
regarded as timely filing, an employee must show not only that the immediate superior knew that
he or she was injured, but also knew or reasonably should have known that it was an on-the-job
injury.9
ANALYSIS
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act. On August 24, 2007 appellant claimed that he sustained injuries to his left
eye and shoulder and depression due to an incident that occurred on September 29, 2003.
Section 8122 provides that an original claim for compensation for disability or death
must be filed within three years after the injury or death.10 Appellant did not file a claim for a
September 29, 2003 injury until August 24, 2007, almost four years after the incident giving rise
to the claimed injury.11 His claim would still be regarded as timely under section 8122(a)(1) of
the Act if his immediate superior had actual knowledge of the injury within 30 days or under
section 8122(a)(2) if written notice of injury was given within 30 days. Appellant has not

5

5 U.S.C. § 8122(a).

6

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

5 U.S.C. § 8119(b); Delmont L. Thompson, 51 ECAB 155 (1999).

9

Id. at § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

10

Id. at § 8122.

11

Supra note 5.

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satisfied either of these requirements.12 While it is clear from the record that the incident
occurred and that there was some physical contact between Mr. Sacco and appellant, the record
does not establish that he sustained an injury due to this incident such that the employing
establishment would be aware that his claim was timely under the provisions of section 8122.
On appeal, appellant’s attorney refers to the Office procedure manual as supportive that
appellant’s claim was timely and cites to language found at Chapter 2.801.3(a)(3).13 Section
2.801.3 describes statutory filing requirements and section 2.801.3(a)(3) discusses claims not
filed within three years after the claimed injury. It states that the claim may be allowed if there
was:
“Knowledge by the immediate superior, another official at the employing agency,
or any agency physician or dispensary that an employee has sustained an injury,
alleges that an injury has been sustained or alleges that some factor of the
employment has resulted in a physical condition constitutes actual knowledge.
Such knowledge does not have to be firsthand or acquired as an eyewitness to the
accident.”14
The record contains a number of statements regarding the claim. Mr. Hylton did not state
that he witnessed the incident. Mr. Scirocco, appellant’s supervisor, advised in both his
September 29, 2003 statement and the September 1, 2005 deposition testimony that he did not
observe any physical contact between appellant and Mr. Sacco. Neither Mr. Welskopp nor
Ms. Harrington described any contact by Mr. Sacco with appellant’s eye. Their statements
regarding contact with appellant’s shoulder are contradictory and neither describes a specific
injury. Mr. Welskopp stated that he observed Mr. Sacco grab appellant and violently hit his left
chest and shoulder. In deposition testimony, he stated that he saw Mr. Sacco strike appellant.
Ms. Harrington first stated that she saw appellant’s supervisor bump him with his arm and, in
deposition testimony, stated that she observed Mr. Sacco pointing his finger at appellant’s chest
and that Mr. Sacco brushed appellant’s shoulder when he walked away.
The first medical evidence documenting an injury to the shoulder, chest or arm was dated
two months following the incident at work. Appellant testified at the hearing that the day after
the incident he told Mr. Scirocco that his eye hurt and was told to see his physician.
Mr. Scirocco was not questioned about this at the September 1, 2005 deposition. Appellant did
not seek treatment for an eye condition until December 4, 2003, two months later. In the
December 4, 2003 report, Dr. Gilbert noted appellant’s history that he was struck in the eye at
work on September 29, 2003. He diagnosed status-post blunt trauma to the left eye; no sign
now. As noted, however, none of the witnesses supported any contact with appellant’s eye and
12

For actual knowledge of a supervisor to be regarded as timely filing, an employee must show not only that the
immediate superior knew that he or she was injured, but also knew or reasonably should have known that it was an
on-the-job injury. David R. Morey, 55 ECAB 642 (2004).
13

The Board notes that appellant’s pleading contains a typographical error, referring to the cite as Chapter
2.810.3(a)(3) rather than Chapter 2.801.3(a)(3).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statutory Filing Requirements, Chapter 2.801.3(a)(3)
(March 1993).

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Dr. Gilbert found no sign of trauma on examination. There is no other evidence to support
appellant’s assertion or to show that he filed written notice within 30 days.
Appellant’s attorney also cites to language found in section 2.803.3 of Office procedures
and referenced Dr. Gilbert’s diagnosis. Section 2.803.3 discusses the sources of evidence used to
determine whether an injury occurred, stating that a medical report does not need to address
causal relationship between the incident claimed and the medical condition diagnosed.15 Section
2.803.5 of Office procedures, however, goes on to state that, in reviewing such a medical report,
the claims examiner must then consider whether the claimed injury occurred in the performance
of duty and whether the diagnosed condition is causally related to the employment incident.16
Section 2.803.3 does not mandate acceptance of an injury without an opinion on causal
relationship. Appellant’s claim therefore does not satisfy the statutory requirements of section
8122(a)(1) or (a)(2) of the Act.17
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability.18
However, in cases involving a traumatic injury, such as this, the time limitation commences to
run on the date of the incident, even though the employee may not be aware of the seriousness or
ultimate consequences of the injury or the nature of the injury is not diagnosed until sometime
later.19 In this case, the medical evidence does not support that appellant sustained an injury to
his eye or shoulder. Dr. Subbarao diagnosed an emotional condition in November 2003 when
appellant described the employment incident. Appellant did not file his claim until August 24,
2007 and there is no evidence of record that he reported that he had sustained an emotional
condition caused by the September 29, 2003 employment incident in accordance with the
requirements of section 8122(b).
The Board finds that the time limitation in appellant’s case began to run no later than
September 29, 2003. Since appellant’s claim was not filed until August 24, 2004, it was not filed
within the three-year time limitation provisions of the Act.20
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act.

15

Id. at section 803.3d (March 1993).

16

Id. at section 803.5a (March 1993).

17

5 U.S.C. § 8122(a)(1), (2).

18

Id. at § 8122(b).

19

Corey W. Davis, 57 ECAB 674 (2006).

20

See S.J., 60 ECAB ____ (Docket No. 08-2048, issued July 9, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 6, 2009 is affirmed.
Issued: May 5, 2010
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., widow of R.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Lacey, WA, Employer
__________________________________________

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

Docket No. 19-0492
Issued: October 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 3, 2019 appellant, through counsel, filed a timely appeal from a November 2,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the employee’s
death on May 5, 2012 was causally related to the accepted factor of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On December 30, 2013 appellant filed a claim for compensation by widow (Form CA-5)
alleging that the May 5, 2012 death of the employee, a 55-year-old emergency management
specialist (public assistance), was causally related to his federal employment. She asserted that
work-related stress contributed to the employee’s death.
A May 8, 2012 supervisor’s report of employee’s death (Form CA-6) indicated that the
employee suffered a sudden cardiac event on May 5, 2012. An undated death certificate, signed
by Deputy Coroner Kristina Vilsack, indicated a date of death as May 5, 2012 and listed the
immediate cause of death as probable sudden cardiac event, with hypertensive cardiovascular
disease as a consequential condition. Other contributing factors were reported as obesity and
tobacco abuse.
An October 16, 2012 report, signed by the coroner, Gary Warnock, and the deputy coroner,
Ms. Vilsack, indicated that the employee was a supervisory public assistance coordinator who had
been on a work assignment in Lacey, Washington since March 2012. The report indicated that a
supervisor reported that the employee was not feeling well on May 2, 2012 took sick leave on
May 3, 2012, and reported for work on May 4, 2012, but was still not feeling well. The report
noted that a coworker had related that the employee appeared to be under an abnormally high
amount of stress while in Lacey, and was troubled about a possible subpoena related to a previous
project in St. Louis, Missouri. The coroner indicated that in 2012 the employee had been seen by
Dr. Steven Buie, Board-certified in family medicine, who noted that the employee was a candidate
for premature cardiac-related death. In addition, the report indicated that Dr. Gina Fino, a Boardcertified in forensic pathologist, had been consulted and that she agreed that the most likely cause
of death was a cardiac event due to underlying hypertensive cardiovascular disease. The coroner’s
report concluded that other contributing causes of death were chronic obstructive pulmonary
disease (COPD), tobacco abuse, and obesity. It additionally indicated that, “In consideration of
statements from friends, coworkers, and family, increased work-related stress was also cited as a
contributing factor.” A certificate of death dated October 15, 2012 listed the cause of death as a
probable sudden cardiac event hypertensive cardiovascular disease with other conditions
contributing to death of COPD, tobacco abuse, obesity, and increased work-related stress.
In letters dated September 18, 2014, OWCP requested that appellant submit additional
evidence regarding her claim. In a September 9, 2014 letter, appellant indicated that the employee
had been in travel status 86 percent of the time since he began his federal employment with the
3

Docket No. 15-1340 (issued April 1, 2016).

2

employing establishment in 2010. She maintained that the pressure was “apparently too much for
him” and that he had not felt comfortable with his last assignment, although he did not say anything
to her.
In a note dated September 3, 2014, Dr. Buie wrote that the employee had been his patient
for years before his death. He indicated that information from clinic visits corroborated a known
history of job stress with frequent travel and long hours. Dr. Buie submitted a September 8, 2011
report of the employee’s annual physical examination. He indicated that the employee was 54
years old, smoked one pack of cigarettes per day, had intermittent breathlessness, hypertension,
and degenerative arthritis pain, intermittent with weight fluctuation with inactivity, increased job
demands, and stress. Dr. Buie diagnosed sinusitis, polycythemia, bronchitis, allergic rhinitis,
tremor, osteoarthritis, hypertension, gastroesophageal reflux disease, and COPD.
Appellant submitted an undated statement indicating that several factors had contributed
to her husband’s death. She noted that, in May 2011, he worked in Missouri and supervised over
25 employees and had to work long hours, and that she could tell from his voice that he was
stressed. Appellant related that at one point the employee told her that she did not realize how
much stress he was under. She also indicated that the employee’s division was going to be
restructured, he would have to reapply for his position, and that there were other staffing issues.
As to the assignment in Lacey, appellant recounted that the employee indicated that he was not
happy there and that the assignment was to end by Memorial Day 2012.
By decision dated February 20, 2015, OWCP denied the claim finding that the evidence
submitted was insufficient to establish a compensable employment factor with respect to
appellant’s allegations regarding the employee’s death.
On February 25, 2015 appellant, through counsel, requested a hearing before OWCP’s
Branch of Hearings and Review. At the hearing, held on October 15, 2015, appellant testified that
she did not know the specifics of the employee’s job duties when he died. She generally alleged
that previous deployments due to weather emergencies were stressful. By decision dated
December 28, 2015, the hearing representative remanded the case for further development. She
directed OWCP to secure additional information regarding the alleged factors of employment.
A telephone conference was held on April 12, 2016 between an OWCP claims examiner
and a representative of the employing establishment who reported that she had no knowledge other
than the employee’s travel schedule.
By decision dated April 14, 2016, OWCP denied modification, finding no accepted
compensable employment factors.
Appellant, through counsel, again requested a hearing on April 19, 2016. At the hearing,
held on December 6, 2016, appellant testified that travel was stressful for her late-husband,
although he was the type of person who did not talk about it as he did not want to worry her.
By decision dated February 9, 2017, the hearing representative affirmed the April 14, 2016
OWCP decision finding that the evidence of record failed to establish a compensable employment
factor with respect to appellant’s allegations.

3

Appellant, through counsel, filed an appeal with the Board. By decision dated December 8,
2017, the Board set aside the February 9, 2017 decision and remanded the case to OWCP. The
Board found that it was undisputed that the employee was on official travel assignment on May 5,
2012 and was, therefore, in the performance of duty at the time of his death. On remand OWCP
was to further develop the claim to determine whether the employee’s temporary-duty assignment
caused or contributed to his death. 4
On remand OWCP secured a position description which detailed the employee’s duties as
a public assistance specialist. It prepared a statement of accepted facts (SOAF) that included the
position description. The SOAF indicated that the only accepted factor of employment was that
the employee had been on official temporary duty in travel status since March 2012. It found that
the additional factors alleged by appellant were not supported by a credible witness statement or
other information to confirm that the employee was overwhelmed and/or stressed by his federal
employment.
OWCP forwarded the SOAF and medical evidence to its district medical adviser (DMA)
for review regarding the cause of the employee’s death.
In a March 15, 2018 report, Dr. Amanda C. Trimpey, Board-certified in occupational
medicine and serving as a DMA, noted her review of the SOAF and medical record. She advised
that the employee’s death certificate listed a sudden cardiac event as the immediate cause of death
with longstanding (years of) hypertensive cardiovascular disease as an underlying cause.
Dr. Trimpey opined that other significant contributing conditions for risk of myocardial infarction
are obesity and tobacco use. She indicated that these causes of death were in line with the medical
history contained in the employee’s medical records which documented a long-standing history of
smoking and hypertension which are known prominent risk factors for cardiac disease and events.
Dr. Trimpey concluded that death due to a sudden cardiac event was consistent with the medical
findings in this case, shown by medical evidence which documented the employee’s known risk
factors for cardiac disease.
On April 4, 2018 OWCP referred the medical record, a SOAF, a list of FECA definitions ,
and a set of questions to Dr. Alan Heldman, a Board-certified cardiologist and a second opinion
physician, for review. Dr. Heldman was specifically asked if there was a causal relationship
between the employee’s death and the accepted employment factor, and what the contributory
causes of death were, if any.
In an April 12, 2018 report, Dr. Heldman noted his review of the medical record and the
SOAF. In answer to OWCP questions, he opined that there was no causal relationship between
the employee’s death and the accepted employment factor -- that the employee was on an official
temporary work-duty assignment at the time of death. Dr. Heldman advised that, for the purposes
of his review, the presence or absence of work-related stress would not influence a determination
of whether there was a causal relationship between the employee’s death and his employment
because there were severe and ongoing medical conditions which were clearly and
overwhelmingly associated with the development of cardiovascular diseases and which frequently
presented with sudden death. He noted the employee’s conditions of severe obesity, ongoing
4

Id.

4

cigarette smoking, and treated hypertension. Dr. Heldman reviewed medical literature which
supported this opinion and advised that it could be concluded that the accepted work-related
temporary work-duty assignment, even if stressful, had no causal relationship with the employee’s
death. Regarding contributory causes of death, he wrote that, given the lack of certainty about the
cause of death which could have represented any number of acute or subacute disorders, it was not
possible to determine with certainty what the contributory causes of death were. Dr. Heldman
noted that the risk of acute cardiovascular events such as myocardial infarction, arrhythmias,
stroke, or pulmonary embolism were all increased by several of the employee’s known conditions
of hypertension, cigarette smoking, and obesity, and that these conditions would be considered
likely contributory causes. He indicated that, while it was possible that stress inﬂuenced his death,
the information available did not support such a conclusion.
By decision dated April 18, 2018, OWCP denied the claim, finding that the medical
evidence did not support that the employee’s death was causally related to his federal employment.
On April 24, 2018 appellant through counsel, requested a hearing before an OWCP hearing
representative. At the hearing, held on September 12, 2018, counsel indicated that there was an
ongoing investigation by the Federal Bureau of Investigation that the appellant was troubled by,
but he had no proof regarding the investigation. He referenced the amended death certificate which
indicated that increased work-related stress was a contributing cause of the employee’s death.
Appellant testified that she thought the investigation involving her late-husband was with regard
to worksheets.
By decision dated November 2, 2018, OWCP’s hearing representative affirmed the
April 18, 2018 decision.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty. 5 An award of
compensation in a survivor’s claim may not be based on surmise, conjecture, or speculation or on
appellant’s belief that the employee’s death was caused, precipitated, or aggravated by the
employment.6 Appellant has the burden of proof to establish by the weight of the reliable,
probative, and substantial medical evidence that the employee’s death was causally related to an
employment injury or to factors of his federal employment. As part of this burden, he or she must
submit a rationalized medical opinion, based upon a complete and accurate factual and medical
background, establishing causal relationship between the employee’s death and an employment
injury or factors of his federal employment. Causal relationship is a medical issue and can be
established only by medical evidence. 7

5

5 U.S.C. § 8133 (compensation in case of death).

6

M.L. (S.L.), Docket No. 19-0020 (issued May 2, 2019); W.C. (R.C.), Docket No. 18-0531 (issued November 1,
2018); see Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).
7

J.P. (E.P.), Docket No. 18-1739 (issued May 3, 2019); see L.R. (E.R.), 58 ECAB 369 (2007).

5

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,8 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA. 9
Where the claimed condition results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the condition comes
within the coverage of FECA. 10 A claimant must support his or her allegations with probative and
reliable evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.11
In cases involving emotional or stress-related conditions, the Board has held that when
working conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship and which working conditions are not deemed factors of
employment and may not be considered. 12 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, OWCP must base its decision on an analysis of the medical evidence. 13
An award of compensation in a survivor’s claim may not be based on surmise, conjecture,
or speculation or on appellant’s belief that the employee’s death was caused, precipitated, or
aggravated by the employment.14 Appellant has the burden of proof to establish by the weight of
the reliable, probative, and substantial medical evidence that the employee’s death was causally
related to an employment injury or to factors of his federal employment. As part of this burden,
she must submit a rationalized medical opinion, based upon a complete and accurate factual and
medical background, showing a causal relationship between the employee’s death and an
employment injury or factors of his federal employment. Causal relationship is a medical issue
and can be established only by medical evidence. 15

8

28 ECAB 125 (1976).

9

See T.G., Docket No. 19-0071 (issued May 28, 2019).

10

C.S. (K.S.), Docket No. 18-1733 (issued May 24, 2019).

11

Id.

12

B.S., Docket No. 19-0378 (issued July 10, 2019).

13

Id.

14

J.P. (E.P.), Docket No. 18-1739 (issued May 3, 2019).

15

Id.

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on May 5, 2012 was causally related to the accepted factor of his federal
employment.
Preliminarily the Board notes that it is unnecessary for it to consider the evidence that was
previously considered in OWCP’s February 9, 2017 decision as that evidence was previously
considered in the Board’s December 8, 2017 decision. In the prior appeal, the Board accepted that
the employee’s temporary duty in travel status since March 2012 was a compensable factor of
employment. Findings made in prior Board decisions are res judicata absent any further review
by OWCP under section 8128 of FECA. 16
In statements and hearing testimony, appellant, the widow of the employee, alleged that
the employee’s death was caused by stress at work. She alluded to travel, previous deployments
during weather emergencies, staffing issues, restructuring of the department, and a possible
investigation. Appellant must however support her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.17 The Board finds that the record of evidence contains no statements from
coworkers or other evidence to support appellant’s allegations. Therefore, these general
allegations are not established as compensable factors of employment.18
Nonetheless, as the record establishes an employment factor, that the employee had been
on temporary duty in travel status, the medical evidence must be addressed.
The Board initially notes that none of the death certificates was signed by a physician.
These reports, therefore, lack probative value. Likewise, the October 16, 2012 coroner’s report,
signed by Mr. Warnock and Ms. Vilsack, lacks probative value. Although it references a report
by Dr. Fino, her report is not found in the record before the Board. Medical opinions, in general,
can only be given by a qualified physician. 19 Therefore, this documentation is of no probative
value regarding causal relationship.
Although Dr. Buie noted a history of job stress in his September 8, 2011 report, he
described no specific job duties as causing the stress. In his September 3, 2014 report, completed
after the employee’s death, Dr. Buie referenced a history of frequent travel and long hours. He
did not comment regarding a cause of the employee’s death in either of his reports. The Board has
held that medical evidence that does not offer an opinion regarding the cause of an employee’s

16

See A.S., Docket No. 16-1100 (issued November 14, 2016).

17

C.S., supra note 10.

18

See Y.J., Docket No. 15-1137 (issued October 4, 2016).

19

D.C., Docket No. 18-1358 (issued June 13, 2019).

7

condition is of no probative value on the issue of causal relationship.20 These reports, therefore,
are insufficient to establish appellant’s claim.
Dr. Trimpey, the DMA, opined that the employee’s long-standing history of cardiovascular
disease with contributing causes of obesity and tobacco use were prominent risk factors for a
cardiac event and concluded that the employee’s death was consistent with his medical history.
Dr. Heldman, who reviewed the medical record including a SOAF with a position
description, opined that there was not a causal relationship between the employee’s death and the
accepted employment factor. He advised that the presence or absence of work-related stress would
not influence a determination of whether there was a causal relationship between the employee’s
death and his employment because he had severe and ongoing medical conditions which were
clearly and overwhelmingly associated with the development of cardiovascular diseases and which
frequently presented with sudden death. Dr. Heldman wrote that the risk of acute cardiovascular
events such as myocardial infarction, arrhythmias, stroke, or pulmonary embolism were all
increased by several of the employee’s known conditions of hypertension, cigarette smoking, and
obesity.
The Board finds that the medical evidence of record does not establish a causal relationship
between the employee’s death and the accepted factor of employment.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on May 5, 2012 was causally related to the accepted factor of his federal
employment.

20
A.M., Docket No. 18-1748 (issued April 24, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

8

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 11-291
Issued: September 7, 2011

Case Submitted on the Record

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

JURISDICTION
On November 16, 2010 appellant filed a timely appeal from an October 7, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has more than a three percent binaural loss of hearing for
which OWCP granted a schedule award.
FACTUAL HISTORY
On July 3, 2008 appellant, then a 53-year-old equipment specialist, filed an occupational
disease claim alleging that he sustained hearing loss due to his work as a shipfitter and pneumatic
1

5 U.S.C. § 8101 et seq.

tools operator for the employing establishment from 1974 to 1995. He became aware of his
condition and its relationship to his federal employment on July 1, 2008.2
OWCP received audiograms for the period August 19, 1974 to June 30, 2008. An
August 19, 1974 baseline audiogram from the employing establishment exhibited the following
decibel (dBA) losses at 500, 1,000, 2,000 and 3,000 Hertz (Hz): 0, 0, 0 and 20 for the right ear
and 0, 0, 0 and 5 for the left ear. At the same frequency levels, July 16 and 18, 1994 audiograms
showed dBA losses of 5, 0, 5 and 25 for the right ear and 0, 0, 5 and 5 for the left ear. At 500,
1,000, 2,000 and 3,000 Hz, a June 5, 2003 audiogram revealed losses of 0, 5, 0 and 30 dBA for
the right ear and 0, 0, 0 and 5 for the left ear while a June 30, 2008 audiogram recorded losses of
10, 15, 15 and 35 dBA for the right ear and 10, 10, 10 and 15 for the left ear.
A January 5, 2009 statement of accepted facts detailed that appellant was hired by the
employing establishment as a pneumatic tools operator in 1974 and was exposed to noise
generated by chippers, grinders, needle guns and reciprocating pumps until 1995. During this
period, appellant was enrolled in the hearing conservation program and wore hearing protection
onsite. He was also exposed to loud pneumatic pumps while he was an equipment specialist
from December 1995 to September 2008. The statement acknowledged that appellant had
normal hearing prior to his federal civilian employment and was routinely exposed to
occupational noise levels above 85 dBA.3
OWCP referred appellant for a second opinion examination to Dr. Theodore M. Mazer, a
Board-certified otolaryngologist. In a February 24, 2009 report, Dr. Mazer related that appellant
was a pneumatic tools operator and shipfitter until 1995. Thereafter, he worked in an
administrative auditing position. Appellant complained of binaural hearing loss and nonpulsatile
tinnitus, the latter of which began to disrupt his sleep in or around June 2008.4 He did not
exhibit any physical abnormalities on examination while a February 10, 2009 audiogram
exhibited the following dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 15, 15, 10 and 45 for the
right ear and 10, 10, 10 and 20 for the left ear. After reviewing the statement of accepted facts
and previous audiometric data, Dr. Mazer noted that the earliest audiogram from August 19,
1974 indicated a limited preemployment hearing loss of the right ear at 3,000 Hz. However,
despite accepted occupational noise exposure, subsequent findings through 1994 did not
demonstrate any significant change from the 1974 baseline. June 5, 2003 and June 30, 2008
audiograms showed nominal noise notches in the right ear at 3,000 and 4,000 Hz, but hearing
loss remained nonratable. In addition, Dr. Mazer pointed out that appellant’s tinnitus first arose
in June 2008, even though his exposure to loud noise diminished since 1996. He opined:
“Given the absence of a clear progression of loss of hearing, even nonratable,
directly due to noise exposure, it is difficult to assign causation for the tinnitus to
2

In December 1995, appellant transferred to the Southwest Regional Maintenance Center located in San Diego,
California. He retired effective February 2, 2009.
3

The statement of accepted facts noted that appellant served in the military as an aircraft maintenance specialist
between October 5, 1971 and August 2, 1974.
4

Appellant informed Dr. Mazer that he underwent a magnetic resonance imaging (MRI) scan in or around
June 2008. The record does not contain any evidence of this.

2

his federal employment, and absent age changes he likely would not have the
tinnitus as even a ratable loss.”
Nonetheless, based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment5 (hereinafter A.M.A., Guides), Dr. Mazer assigned a three percent
hearing loss on account of appellant’s tinnitus, concluding that the condition was primarily
caused by occupational noise exposure. He did not recommend hearing aids.
By decision dated March 26, 2009, OWCP denied appellant’s claim for binaural hearing
loss, finding the medical evidence insufficient to establish that the accepted occupational noise
exposure caused the condition. It accepted his claim for employment-related bilateral tinnitus.
On July 14, 2009 appellant filed a claim for a schedule award.
In a January 2, 2010 report, OWCP’s medical adviser found that appellant’s bilateral
high-frequency hearing loss was due to federal occupational noise exposure. He agreed with
Dr. Mazer that appellant’s tinnitus was employment related. Applying the A.M.A., Guides to the
February 10, 2009 audiogram, OWCP’s medical adviser determined that there was no ratable
impairment, but added three percent for tinnitus based on page 249 of the A.M.A., Guides.
On January 21, 2010 OWCP granted a schedule award for three percent binaural hearing
loss for the period February 10 to March 22, 2009.
Appellant requested a telephonic hearing, which was held on August 3, 2010. He
testified that the tinnitus continued to interfere with his activities of daily living, particularly
sleep and air travel. Appellant added that he was still exposed to noise when he worked as a
field calibration auditor starting in 1995 before being assigned administrative duties.
In an October 7, 2010 decision, OWCP’s hearing representative affirmed the January 21,
2010 schedule award.
LEGAL PRECEDENT
FECA’s schedule award provision and its implementing regulations6 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.7 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

5

A.M.A., Guides (6th ed. 2008).

6

20 C.F.R. § 10.404.

7

5 U.S.C. § 8107(c)(13).

3

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted
because, as the A.M.A., Guides points out, losses below 25 dBA 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. Binaural loss is
determined by first calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss, and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.9
The A.M.A., Guides provides that, if tinnitus interferes with activities of daily living such
as sleeping, reading and other tasks requiring concentration, up to five percent may be added to a
measurable binaural hearing impairment.10 The Board has held that a claimant is not entitled to
an additional schedule award for tinnitus if the record does not contain medical evidence directly
addressing the impact of tinnitus on an employee’s activities of daily living11 or if the
measurable hearing loss is not ratable under the standards set forth in the A.M.A., Guides.12
ANALYSIS
Appellant filed a claim for hearing loss and was referred to Dr. Mazer for a second
opinion examination. After conducting a thorough examination and reviewing the medical file,
Dr. Mazer determined that there was no ratable, work-related hearing impairment, but assigned a
rating of three percent on account of tinnitus. While OWCP’s medical adviser found that both
appellant’s high-frequency hearing loss and tinnitus were caused by occupational noise exposure,
he agreed that the loss was nonratable and concurred with Dr. Mazer’s final rating. The medical
adviser attributed three percent impairment to tinnitus. Thereafter, OWCP granted a schedule
award for three percent binaural hearing loss for the period February 10 to March 22, 2009.
Applying the A.M.A., Guides standard to the February 10, 2009 audiogram, appellant’s
right ear recorded losses of 15, 15, 10 and 45 dBA. The total loss was 85 dBA. When divided
by four, the result was an average hearing loss of 21.25 dBA. The average hearing of 21.25 dBA
was reduced by the fence of 25 dBA to zero dBA. This figure was then multiplied by the
established factor of 1.5, yielding zero percent monaural impairment of the right ear. At the
8

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

9

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

10

A.M.A., Guides, supra note 5 at 249. See also R.D., 59 ECAB 127 (2007).

11

R.D., supra note 10.

12

Juan A. Trevino, 54 ECAB 358 (2003); L.F., Docket No. 10-2115 (issued June 3, 2011); J.Q., Docket No. 101660 (issued April 5, 2011).

4

same frequency levels, appellant’s left ear recorded losses of 10, 10, 10 and 20 dBA at 500,
1,000, 2,000 and 3,000 Hz, respectively. The total loss was 50 dBA. When divided by four, the
result was an average hearing loss of 12.5 dBA. The average hearing of 12.5 dBA was reduced
by the fence of 25 dBA to equal zero dBA. This figure was then multiplied by the established
factor of 1.5, yielding zero percent monaural impairment of the left ear. Therefore, OWCP
properly determined that appellant did not sustain a ratable hearing impairment.
As noted, OWCP issued a schedule award for a three percent binaural hearing loss due to
tinnitus. As appellant had no ratable hearing loss, as explained, this was error. Although
OWCP’s medical adviser cited page 249 of the A.M.A., Guides to support his finding of three
percent impairment due to tinnitus, this provision of the A.M.A., Guides only allows an
impairment rating for tinnitus when there is “a measurable binaural hearing impairment.”13 The
Board has repeatedly held that there is no basis for paying a schedule award for a condition such
as tinnitus unless the evidence establishes that the condition caused or contributed to a ratable
hearing loss.14 As appellant’s hearing loss was nonratable, OWCP erroneously granted a
schedule award based on tinnitus. Consequently, the evidence does not establish that appellant
has any greater hearing loss than that for which OWCP has issued a schedule award.
Appellant argues on appeal that the unrelenting nature of his tinnitus has disabled him
and that he is entitled to the maximum schedule award. However, the medical evidence of
record clearly establishes that he did not sustain a ratable binaural hearing impairment and, as
such, he is not entitled to a greater award.15
Appellant may request a 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 has any greater impairment of
his hearing than that for which he has received a schedule award.

13

Supra note 10.

14

L.F., supra note 12.

15

Following medical evaluation of a claim, if a hearing loss is determined to be nonratable for schedule award
purposes, other benefits may still be payable if any employment-related hearing loss exists. See J.B., supra note 9;
F.D., Docket No. 10-1175 (issued January 4, 2011); Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical
Services and Supplies, Chapter 3.400.3(d)(2) (March 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: September 7, 2011
Washington, DC

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

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

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

6


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

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

Docket No. 12-664
Issued: October 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 1, 2012 appellant, through her representative, filed a timely appeal from a
November 4, 2011 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 established that she had continuing employment-related
disability after April 18, 2011 due to her accepted May 21, 1998 work injury.
FACTUAL HISTORY
On May 21, 1998 appellant, then a 31-year-old mail processor, filed a claim for traumatic
injury, alleging that she sustained an injury to her right hand and forearm as she was sweeping

1

5 U.S.C. § 8101 et seq.

and carrying mail. By decision dated June 30, 2000, OWCP accepted her claim for right
shoulder sprain and right rotator cuff tear. It also authorized right rotator cuff repair surgery.
Appellant filed a claim for recurrence of disability, as of March 27, 2001, which was
accepted by OWCP as work related. She thereafter returned to work full time, with restrictions
of no lifting or pulling of over 10 pounds. Appellant worked in a limited-duty capacity until
September 17, 2010, when she was sent home because no work was available within her physical
restrictions. She was paid compensation for total disability beginning September 17, 2010.
The record reflects that appellant continued to submit reports to OWCP from her treating
physician, Dr. Herman Ambris, Board-certified in physical medicine and rehabilitation. In a
June 16, 2010 report, Dr. Ambris noted that she was last examined on March 17, 2010. At that
time appellant had ongoing right shoulder pain, which was generally unchanged from previous
visits. Dr. Ambris noted a “pins and needle” sensation in her right hand. Regarding appellant’s
left shoulder, he noted transient pain. In a report dated September 15, 2010, Dr. Ambris stated
that appellant had been seen that day for follow-up evaluation. He concluded that appellant
could work full time, but that she should avoid wet and humid conditions, avoid repetitive
movement of the upper extremities, avoid lifting over the shoulder and limit lifting to 20 pounds.
On December 2, 2010 appellant was referred to Dr. Robert Orlandi, a Board-certified
orthopedic surgeon, for a second opinion medical examination in order to determine the nature
and extent of her injury-related condition and disability. Dr. Orlandi was provided with a
statement of accepted facts and medical evidence from appellant’s case file. In a report dated
December 30, 2010, he conducted a physical examination and reported that appellant’s right
shoulder revealed no angular or rotary deformity. There was no atrophy or dystrophy. There
was no localizing tenderness during examination, and appellant had full range of motion
unassociated with pain or discomfort. There was no evidence of shoulder laxity or labral tear,
and there was no subacrominal crepitation to suggest impingement, tendinitis or tear.
Dr. Orlandi also reported normal examination findings for appellant’s right elbow, wrists and
hand. He reviewed appellant’s MRI scans and stated that appellant had a normal right shoulder
MRI scan examination two and a half years ago, although the initial scan had shown a full
thickness tear of the rotator cuff. Dr. Orlandi concluded that appellant had no musculoskeletal
disability related to her May 21, 1998 injury and could perform full-duty work, without
restriction. Finally, he added that she did not need further physical therapy or other surgical
treatment. In a supplemental report received by OWCP on March 8, 2011, Dr. Orlandi stated
that appellant’s claim should not be expanded to include any other medical conditions. He
concluded that appellant did not have any current disability that she had fully recovered from her
work injury and was able to return to her date-of-injury position.
OWCP found Dr. Orlandi’s opinion constituted the weight of medical evidence and
issued a notice of proposed termination of compensation on March 17, 2011.
In progress notes dated March 10, and 21, 2011, Dr. Ambris reiterated appellant’s work
restrictions.

2

By decision dated April 18, 2011, OWCP terminated appellant’s compensation benefits
on the grounds that the medical evidence established that she no longer had any medical
residuals or disability due to the May 21, 1998 work incident.
Following the termination decision, OWCP continued to receive progress reports from
Dr. Ambris.
In handwritten reports dated March 10 and 21, 2011, received by OWCP on May 2, 2011,
Dr. Ambris stated that appellant was seen for complaints of right shoulder pain and stated that
the nature of her pain had remained unchanged over time. He again concluded that she should
adhere to her previous work restrictions.
In a July 6, 2011 progress note, Dr. Ambris continued appellant’s work restrictions. He
recommended that appellant avoid wet and humid conditions, avoid repetitive movements of the
upper extremities, avoid lifting over the shoulder and limit her lifting to 20 pounds.
Appellant requested reconsideration of the April 18, 2011 decision on August 29, 2011.
In support of her request for reconsideration, appellant submitted an August 10, 2011
report from Dr. Ambris who stated that he had first examined appellant on March 19, 2008 for
her right shoulder pain. Dr. Ambris noted that appellant had previously refused surgery and
injections had not effectively relieved her pain. He concluded that appellant had been working
restricted duty, that her condition had not changed and that her work restrictions should continue.
Appellant also resubmitted Dr. Ambris’ initial report dated March 19, 2008.
By decision dated November 4, 2011, OWCP denied modification of its prior decision,
finding that the evidence was insufficient to establish that appellant had any continuing disability
or residuals due to her May 21, 1998 injury.
LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to the claimant. To prevail,
the claimant must establish by the weight of the reliable, probative and substantial evidence that
she had an employment-related disability, which continued after the termination of compensation
benefits.2
ANALYSIS
By decision dated April 18, 2011, OWCP found that the reports from Dr. Orlandi, the
second opinion physician, established that appellant’s accepted right shoulder conditions had
ceased and that she was no longer disabled due to her May 21, 1998 injury. The Board’s
jurisdiction is limited to decisions of OWCP issued no more than 180 days prior to notice of
appeal to the Board, therefore the Board does not have jurisdiction to review the April 18, 2011

2

I.J., 59 ECAB 408 (2008).

3

decision terminating appellant’s compensation benefits.3 The only issue before the Board is
whether appellant has established continuing disability after April 18, 2011.
The Board finds that appellant submitted insufficient medical evidence to establish that
she continued to be disabled or have residuals of her accepted right shoulder conditions, after
April 18, 2011.
Appellant submitted several progress reports from Dr. Ambris after the April 18, 2011
termination decision. Dr. Ambris essentially opined that appellant’s pain complaints remained
the same and that her work restrictions should continue to apply. He, however, did not provide
any current physical examination findings, did not relate any relevant objective findings to
support continuing disability and did not even substantively discuss appellant’s current
diagnosis. Whether a particular injury caused an employee disability from employment is a
medical issue, which must be resolved by competent medical evidence.4 To be of probative
value, medical evidence must provide a reasoned opinion, based upon a complete and accurate
factual and medical history.5 Dr. Ambris stated in a conclusory fashion that appellant’s work
restrictions should continue. He did not explain why these work restrictions remained
unchanged and necessary and did not address the time span of years since the work injury.
Dr. Ambris did not provide a history of appellant’s medical condition, only of her pain
complaints. Furthermore, he did not address Dr. Orlandi’s findings that appellant had a normal
physical examination, and no objective findings of continued residuals or disability. The Board
therefore finds that the reports from Dr. Ambris are of limited probative value.
As appellant did not submit other relevant medical evidence, the Board finds that OWCP
properly found in its November 4, 2011 decision that appellant failed to submit evidence
sufficient to establish continuing disability.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish continuing
disability.

3

20 C.F.R. § 501.3(e).

4

See Carol A. Lyles, 57 ECAB 265 (2005).

5

See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the November 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
EDUCATION & TRAINING COMMAND,
LACKLAND AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 17-1617
Issued: January 8, 2018

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 July 21, 2017 appellant filed a timely appeal from a January 23, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish lower extremity
permanent impairment due to his accepted lumbar condition, warranting a schedule award.
FACTUAL HISTORY
On August 6, 2015 appellant, then a 58-year-old information technology (IT) specialist,
filed a traumatic injury claim (Form CA-1) for lower back and left leg conditions he alleged
arose in the performance of duty on July 28, 2015. He and a coworker were moving a loaded
1

5 U.S.C. § 8101 et seq.

metal cart down a ramp when it started to veer off the ramp. Appellant indicated that they
struggled to regain control of the cart and he injured his back. He did not stop work around the
time he filed his claim.2
A September 3, 2015 lumbar x-ray revealed degenerative disc and joint disease at L4-5
and L5-S1, without evidence of fracture or destructive lesion.
In a September 3, 2015 report, Dr. Jose V. Vela, an attending Board-certified internist
and family practitioner, noted that appellant complained of low back and radiating left leg pain.
He reported findings on physical examination and diagnosed lumbar strain.
OWCP initially accepted that appellant sustained a lumbar sprain. It later expanded the
accepted conditions to include lumbar intervertebral disc displacement.
A December 9, 2015 lumbar magnetic resonance imaging (MRI) scan contained an
impression of left paracentral disc herniation at L5-S1 with impingement of the exiting left L5
nerve root and traversing left S1 nerve root, and a broad-based disc bulge at L2-3 with mild
impingement of the anterior thecal sac. There was no fracture, tumor, abscess, sequestered, or
extruded disc fragment, osteomyelitis, discitis, or retroperitoneal aneurysm. The findings
showed mild degenerative disc and joint disease consistent with age, involving both the anterior
and posterior elements of the lumbar spine. There was no evidence of dysmorphism, fracture,
mass, tumor, retroperitoneal lesion, aneurysm, or suggestion of inflammatory change.
In a July 27, 2016 report, Dr. Vela reported the findings of his physical examination of
that date. He indicated that appellant exhibited mild tenderness to palpation of the lumbar
paraspinal muscles and noted that straight leg raise testing in both legs was negative.
On November 4, 2016 appellant filed a claim for a schedule award (Form CA-7).
Appellant submitted an August 23, 2016 report in which Dr. Mark Mason, an attending
Board-certified occupational medicine physician, discussed his factual and medical history and
reported the findings of the physical examination he performed on that date. Dr. Mason noted
that no electrodiagnostic studies were performed. He observed that appellant transitioned from
one position to another with minimal difficulty. Dr. Mason noted that straight leg testing was
tolerated to 40 degrees and that there were no distal symptoms with maximum tolerated straight
leg raising. He advised that it was reasonable to say that appellant reached maximum medical
improvement on July 27, 2016, the date that appellant last saw Dr. Vela, having completed all of
the diagnostic workup and treatment. Dr. Mason indicated that no further material recovery from
or lasting improvement to the compensable work condition could reasonably be anticipated from
further treatment that appellant was interested in pursuing. He noted that, according to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent

2
Beginning on October 18, 2015, appellant received wage-loss compensation on the daily roll for intermittent
work stoppages. Some of these work stoppages were due to his attendance at physical therapy sessions to treat his
work-related condition.

2

Impairment (A.M.A., Guides),3 appellant qualified for a left lower extremity permanent
impairment rating of 14 percent due to his work injury.
Dr. Mason indicated that he used The Guides Newsletter, “Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition” (July/August 2009) (The Guides Newsletter) to assign the
permanent impairment rating for the lumbar radiculopathies affecting appellant’s left lower
extremity.4 For the L5 nerve, appellant qualified for a moderate sensory loss according to Table
17-7 and this qualified for a range of impairment between two and five percent of the left lower
extremity with a grade C default value (within class 1) of three percent impairment. Dr. Mason
indicated that, for the motor component of the L5 nerve, appellant qualified for mild motor
deficit using Table 17-7 for physical examination, and qualified for range of impairment between
zero and nine percent of the left lower extremity using proposed Table 2. The default grade C
default value (within class 1) was five percent. Hence, the default rating for sensory loss was
three percent of the left lower extremity and the default rating for motor loss was five percent of
the left lower extremity. Dr. Mason indicated that these were modified by the grade modifiers
for functional history and clinical studies. For functional history, using Table 17-6, appellant
qualified under modifier 2 which resulted in a modifier adjustment of +1 (grade modifier 3
minus class 1 equaled adjustment 1). For clinical studies, using Table 17-9, he qualified for
grade modifier 2 and an adjustment of +1 (grade modifier 2 minus class 1 equaled modifier
adjustment +1). Hence, the grade modifier adjustment under the net adjustment formula was +2.
This moved appellant from the grade C default value (within class 1) to the maximum grade E
value (within class 1). For the sensory component of the nerve, this qualified for five percent
permanent impairment of the left lower extremity. For the motor component, appellant qualified
for a maximum of nine percent permanent impairment of the left lower extremity. Dr. Mason
concluded that these values combined to equal 14 percent permanent impairment of the left
lower extremity.
In November 2016, OWCP referred appellant’s case to Dr. Arthur S. Harris, an attending
Board-certified orthopedic surgeon serving as an OWCP medical adviser, and requested that he
evaluate the permanent impairment of appellant’s lower extremities.
In a November 22, 2016 report, Dr. Harris determined that appellant did not have
permanent impairment of his lower extremities under the standards of the sixth edition of the
A.M.A., Guides. He noted that appellant was seen for evaluation on August 23, 2016 by
Dr. Mason who documented his ongoing symptoms. Dr. Mason documented that a December 9,
2015 MRI scan of appellant’s lumbar spine demonstrated a disc herniation at L5-S1 and a bulging
disc at L2-3. Dr. Harris noted that Dr. Mason found that appellant had 14 percent permanent
impairment of his left lower extremity for problems associated with L5 radiculopathy. He advised
that, from review of the medical record, a lumbar disc herniation at L5-S1 had been established.
Dr. Harris indicated that, although Dr. Mason found in his August 23, 2016 report that appellant
had 14 percent left lower extremity impairment due to an L5 radiculopathy, his examination did
not demonstrate any neurologic deficit in either lower extremity. He found that, as appellant did
not have documented neurologic deficits, he was not entitled to a permanent impairment rating
based on the sixth edition of the A.M.A., Guides. Dr. Harris concluded that, for purposes of
3

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

4

See infra notes 12 through 14.

3

calculating a schedule award utilizing the sixth edition of the A.M.A., Guides, appellant had zero
percent permanent impairment of either lower extremity.
By January 23, 2017 decision, OWCP determined that appellant had not met his burden
of proof to establish permanent impairment of his lower extremities due to his accepted
employment condition. It based its determination on Dr. Harris’ November 22, 2016 report
which evaluated the August 23, 2016 findings of Dr. Mason.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.5 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.6 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).7
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.8 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.9 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment.10 It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. The FECA-approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities. The appropriate tables for rating
spinal nerve extremity impairment are incorporated in the procedure manual.11
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment for the Class of Diagnosis
(CDX) condition, which is then adjusted by grade modifiers based on grade modifier for
5
5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2).
6

20 C.F.R. § 10.404.

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
8

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

9

Supra note 7 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a(3)
(February 2013).
10

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).
11

See supra note 6 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

4

Functional History (GMFH) and, if electrodiagnostic testing was done, grade modifier for
Clinical Studies (GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMCS - CDX).13
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for lumbar sprain and expanded to
include lumbar intervertebral disc displacement. Appellant filed a claim for a schedule (Form
CA-7) and, in a May 30, 2017 decision, OWCP determined that appellant did not meet his
burden of proof to establish permanent impairment of his lower extremities due to his accepted
employment injury. OWCP based its determination on the November 22, 2016 report of
Dr. Harris, OWCP’s medical adviser, who reviewed the August 23, 2016 findings of Dr. Mason,
an attending physician.
Dr. Mason indicated that he applied the standards of the sixth edition of the A.M.A,
Guides, including The Guides Newsletter. He determined that appellant had 14 percent
permanent impairment of the left lower extremity due to sensory and motor deficits associated
with the L5 nerve root.
In his November 22, 2016 report, Dr. Harris, OWCP’s medical adviser, properly
determined that appellant did not have permanent impairment of his lower extremities under the
standards of the sixth edition of the A.M.A., Guides. He discussed Dr. Mason’s August 23, 2016
evaluation noting that, although Dr. Mason found in his August 23, 2016 report that appellant had
14 percent left lower extremity impairment due to left L5 radiculopathy, his examination did not
demonstrate a neurologic deficit in either lower extremity. It is noted that Dr. Mason reported on
August 23, 2016 that straight leg testing was tolerated to 40 degrees and that there were no distal
symptoms with maximum tolerated straight leg raising. Dr. Harris acknowledged that a
December 9, 2015 lumbar MRI scan demonstrated a disc herniation at L5-S1, but he correctly
found that an L5 radiculopathy had not been established. The Board finds that Dr. Harris properly
opined that, as appellant did not have documented neurologic deficits, he was not entitled to any
permanent impairment rating based on the sixth edition of the A.M.A., Guides. In his August 23,
2016 report, Dr. Mason specifically indicated that electrodiagnostic studies were not performed.
As noted above, a schedule award is not payable under FECA for injury to the spine or back and
The Guides Newsletter is designed to evaluate peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries.14 Dr. Harris properly concluded that, for purposes of
calculating a schedule award utilizing the sixth edition of the A.M.A., Guides, appellant had zero
percent permanent impairment of either lower extremity.
On appeal appellant contends that the opinion of Dr. Harris should not have been
accepted over that of Dr. Mason. In some instances, OWCP’s medical adviser’s opinion can
constitute the weight of the medical evidence. As long as OWCP’s medical adviser explains his
or her opinion, shows values and computation of impairment based on the A.M.A., Guides, and
considers each of the reported findings of impairment, his or her opinion may constitute the
12

A.M.A., Guides 515-21, 533.

13

Id. at 521.

14

See supra notes 8 through 12.

5

weight of the medical evidence.15 As explained above, Dr. Harris, OWCP’s medical adviser,
identified the errors in Dr. Mason’s impairment rating and then properly applied the standards of
the sixth edition of the A.M.A., Guides to find that appellant had no lower extremity permanent
impairment.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish lower
extremity permanent impairment due to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2017 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: January 8, 2018
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

15
If the attending physician misapplied the A.M.A., Guides, no conflict would exist because the attending
physician’s report would have diminished probative value and the opinion of OWCP’s medical adviser would
constitute the weight of medical opinion. Supra note 6 at Part 2 -- Claims, Developing and Evaluating Medical
Evidence, Chapter 2.810.8j (September 2010); M.P., Docket No. 14-1602 (issued January 13, 2015).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tuscaloosa, AL, Employer
__________________________________________

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

Docket No. 13-1560
Issued: December 11, 2013

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 June 19, 2013 appellant filed a timely appeal from the March 19, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied her schedule award
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case. The Board
also has jurisdiction to review OWCP’s May 29, 2013 nonmerit decision denying appellant’s
request for an oral hearing.
ISSUES
The issues are: (1) whether appellant is entitled to an additional schedule award for
permanent impairment resulting from her accepted employment injury; and (2) whether OWCP
properly denied appellant’s request for an oral hearing before an OWCP hearing representative.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 24, 1999 appellant, a 41-year-old nursing assistant, sustained a traumatic
injury in the performance of duty while repositioning a patient. OWCP accepted her claim for a
lumbar strain, right knee strain, right knee meniscal tear and aggravation of right knee
osteoarthritis. In 2000 appellant underwent an arthroscopic partial lateral meniscectomy and
shaving of articular cartilage lesion. In 2002 she underwent an arthroscopic partial lateral
meniscectomy and debridement of osteophyte. In 2004 appellant underwent a right total knee
arthroplasty.
On April 20, 2006 appellant received a schedule award for a 37 percent permanent
impairment of her right lower extremity for a good result following her total knee replacement.
In 2007 appellant underwent a revision of the right total knee arthroplasty. Shortly, thereafter
she required a second revision.
On April 8, 2010 OWCP denied appellant’s claim for an additional impairment, as it
appeared her need for still further revision indicated that her condition had not yet reached a
fixed and permanent state. In 2011 appellant underwent a revision for a failed right total knee
arthroplasty.
On January 24, 2013 appellant filed a claim for an additional schedule award. OWCP
advised her to request her treating physician to submit a medical report containing a detailed
description of any permanent impairment and a rating calculated under the sixth edition of the
America Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (2009).
Dr. D. Shane Buggay, the Board-certified orthopedic surgeon who performed the 2011
revision surgery, examined appellant on March 29, 2012. Radiographs showed satisfactory
placement of the tibial femoral component in the condylar knee with excellent alignment. There
was no evidence of loosening.
Appellant showed excellent patella tracking on
November 28, 2012. She demonstrated full extension and flexion to 115 degrees.
Dr. Buggay examined appellant again on January 14, 2013. As far as her right knee was
concerned, appellant was very satisfied. She had a midline healed incision on the knee. There
was no instability, no warmth or synovitis. Appellant was neurologically intact. She had 5/5
strength with foot flexors, extensors, quadriceps and hamstrings. Dr. Buggay noted that she had
no pain with hip internal or external rotation. His impression: “Overall excellent course given
the difficulty with [appellant’s] knee.” Dr. Buggay recommended that appellant follow up on a
yearly basis for evaluation. He found her to be at maximum medical improvement.
In a decision dated March 19, 2013, OWCP denied appellant’s claim for an increased
schedule award. It found that she had not provided the medical evidence required to support a
greater permanent impairment.

2

On April 17, 2013 OWCP received a letter dated April 10, 2013 from appellant
requesting an oral hearing.2 The record contained no envelope or postmark. Appellant
submitted, among other things, a copy of Dr. Buggay’s January 14, 2013 progress note.
Appellant resent her request for an oral hearing on April 23, 2013. She indicated that she
had sent her earlier request to the wrong address.
In a decision dated May 29, 2013, OWCP denied appellant’s hearing request. It found
that the request, postmarked on April 23, 2013, was not sent within 30 days of the March 19,
2013 decision denying her schedule award claim. OWCP found that appellant was therefore not
entitled to a hearing as a matter of right. It considered her request and determined that a
discretionary hearing was not warranted because she could equally well address the issue in her
case by requesting reconsideration and submitting evidence not previously considered to
establish additional permanent impairment.
On appeal, appellant contends that she has done everything that was asked of her, that she
requested the necessary information from Dr. Buggay’s office. The missing information and the
delay were caused not by her actions or inactions, she explains, they were caused by
Dr. Buggay’s neglect to answer and submit the necessary medical information in a timely
manner.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA3 and the implementing regulations4 set forth the
number of weeks of compensation payable to employees who sustain permanent impairment of a
scheduled member, function or organ of the body. FECA, however, does not specify the manner
in which the percentage of loss shall be determined. The method used in making such a
determination is a matter that rests within the sound discretion of OWCP.5
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.6 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.7

2

The Board notes that the letter actually contained the date of April 10, 2013; however, this appears to be a
typographical error.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

6

Supra note 4; Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).

3

ANALYSIS -- ISSUE 1
Diagnosis-based impairment is the primary method for evaluating impairment to the
lower limb. Impairment is determined first by identifying the relevant diagnosis, then by
selecting the class of the impairment: no objective problem, mild problem, moderate problem,
severe problem, very severe problem approaching total function loss. This provides a default
impairment rating, which can be adjusted slightly up or down using grade modifiers or nonkey
factors, such as functional history, physical examination and clinical studies.8
The impairment values for a total knee replacement are found in Table 16-3, page 511 of
the A.M.A., Guides or the Knee Regional Grid. A good result -- good position, stable, functional
-- has a default impairment value of 25 percent. A fair result -- fair position, mild instability
and/or mild motion deficit -- has a default impairment value of 37 percent. A poor result has a
default impairment value of 67 percent. A poor result with chronic infection has a default
impairment value of 75 percent.
Appellant did not submit an impairment evaluation under the sixth edition of the A.M.A.,
Guides. For this reason, OWCP denied her schedule award claim. Dr. Buggay, the orthopedic
surgeon who performed the 2011 revision, examined appellant on several occasions following
surgery and recorded findings that relate to the criteria for classifying her total knee replacement
under Table 16-3: position, stability, motion. He also found her to be at maximum medical
improvement.
The Board will therefore set aside OWCP’s March 19, 2013 decision and remand the
case for review by a medical adviser to determine whether Dr. Buggay’s postrevision clinical
findings (or perhaps other evidence, such as a functional capacity evaluation) are sufficient to
characterize appellant’s result under Table 16-3 of the sixth edition of the A.M.A., Guides.9
Following such further development as may become necessary, OWCP shall issue a de novo
decision on appellant’s schedule award claim.10
CONCLUSION
The Board finds that this case is not in posture for decision. Further, development is
warranted.

8

A.M.A., Guides 497 (6th ed. 2009).

9

See Ruben Franco, 54 ECAB 496 (2003).

10

As OWCP will issue a de novo decision on appellant’s schedule award claim with full appeal rights, the second
issue on appeal, whether OWCP properly denied her request for an oral hearing, is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the May 29 and March 19, 2013 decisions of the
Office of Workers’ Compensation Programs are set aside. The case is remanded for further
action.
Issued: December 11, 2013
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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