United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0417
Issued: August 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2016 appellant filed a timely appeal from a December 23, 2015 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 the claim.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability as of April 26, 2010 causally related to his December 11, 2007 employment injuries.
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.

FACTUAL HISTORY
This case has been previously before the Board.3 By decision dated May 8, 2009, the
Board reversed OWCP’s February 22, 2008 decision and found that appellant’s fall on
December 11, 2007 occurred in the performance of duty.4 The case was remanded to OWCP for
further development on the nature and extent of any disability related to the December 11, 2007
injury. The fact and circumstances surrounding the prior decision are hereby incorporated by
reference.
Following the Board’s May 8, 2009 remand, the relevant facts follow: OWCP accepted
on June 5, 2009 appellant’s claim for the conditions of: left temporal bone fracture, concussion
with moderate loss of consciousness, meningitis (resolved), and head, face and neck contusions
except eyes, and reactive confusion and paid appropriate benefits. The record reflects that
appellant returned to full-time full duty in 2008 following the December 11, 2007 work injury.
He stopped work on April 26, 2010. As of May 23, 2010, appellant has been in receipt of
retirement benefits from the Office of Personnel Management (OPM).
On August 26, 2014 appellant filed a recurrence (Form CA-2a) claiming wage-loss
compensation effective April 26, 2010 and continuing due to a change or worsening of his
accepted work-related conditions.
In an August 11, 2014 report, Dr. Denise A. Hastings, a Board-certified internist,
indicated that appellant was disabled and unable to work as he could not perform the essential
functions of his position. She indicated that he suffered from head and neck pain as well as arm,
shoulder and knee pain and has permanent cognitive loss after the closed head injury.
Dr. Hastings noted that appellant was on medications for seizures and neuropathic pain and saw
a counselor for chronic pain and depression.
In an October 17, 2014 letter, OWCP advised appellant of the deficiencies in his claim
and requested medical evidence which clearly explained the material worsening in his condition
based on objective findings. Appellant was afforded 30 days to provide the requested
information.
OWCP thereafter received additional medical evidence. In a November 18, 2011 report,
Dr. Thomas J. Degan, a Board-certified orthopedic surgeon, presented examination findings for
appellant’s left and right knees and diagnosed bilateral knee pain. A magnetic resonance
imaging (MRI) scan was ordered to rule out right medial meniscus tear.
In an October 22, 2014 letter, Dr. Hastings indicated that appellant was disabled and not
able to perform all of the essential functions of his work duties. She noted that appellant
3

Docket No. 08-1202 (issued May 8, 2009).

4

On January 5, 2008 appellant, then a 47-year-old mail handler, filed a traumatic injury claim (Form CA-1)
alleging that on December 11, 2007 at approximately 2:18 p.m., he sustained injuries when he fell in the men’s
locker room while getting ready for work and hit his head on the floor. He was transported by ambulance to the
Harborview Medical Center.

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reported a worsening of his bilateral neck, arm, elbow and back pain and that he had permanent
cognitive loss after his closed head injury.
By decision dated December 9, 2014, OWCP denied the recurrence claim as the medical
evidence did not establish that appellant was disabled due to a material change or worsening of
his accepted work-related conditions.
On March 23, 2015 OWCP received appellant’s March 17, 2015 request for
reconsideration. Medical reports, operative reports and diagnostic testing which predated the
recurrence claim of April 20, 2010 were received. Additional medical reports and diagnostic
testing were received.
Diagnostic testing provided included the following: an October 21, 2011 x-ray of left
knee noted history of persistent pain after fall and contained an impression of mild degenerative
disease with osteochondromatosis. An October 21, 2011 x-ray of right knee noted a fall and
contained an impression of mild degenerative changes with joint effusion. A December 2, 2011
MRI scan right knee noted small to moderate volume knee effusion and tears in the medial and
lateral menisci with mild soft tissue edema in collateral ligaments. A June 5, 2013 x-ray of right
elbow noted a history of right elbow pain for two to three years and contained an impression of
spurring of the lateral humeral epicondyle. A June 29, 2015 computerized tomography (CT)
scan of temporal bone did not show any change from prior scan. Diffuse soft tissue thickening
of the left and right tympanic membrane noted with minimal soft tissue thickening noted in left
hypotympanum without bony Eustachian tube obstruction. A July 15, 2015 brain MRI scan was
reported as unremarkable with no evidence of an acoustic neuroma or significant interval change.
An August 3, 2015 audiology test report was provided.
Several reports from Dr. Dennis Zhou, a neurologist, were received. In his August 12,
31, October 7 and 21, 2011 reports, Dr. Zhou noted that appellant was seen for neurological
consultation for his possible seizures. He noted the December 11, 2007 work injury and
appellant’s present complaints. Dr. Zhou indicated probable major depression, head injury at
work on December 11, 2007, possible seizure times two, hypertension and asthma, neck pain,
arms paresthesia with weakness/atrophy in left. He advised that he was not convinced that
appellant had epileptic seizures, but that appellant did have major depression. Dr. Zhou noted
that appellant fell on December 11, 2007 and had possible skull-base fracture with blood in the
left ear. He indicated that appellant had post-traumatic changes over frontal lobes bilaterally on
MRI scan, but that he was not sure of the clinical significance. Dr. Zhou concluded that there
were no active neurological issues in appellant’s case.
In an August 25, 2011 report, Brian J. Silverman, O.D., an optometrist, noted that
appellant reported poor vision in both eyes stemming from a head injury to the right side of
forehead in December 2007. He also reported hospitalization with meningitis with poor vision
ever since the work injury. An impression of traumatic retinopathy both eyes with moderate
visual acuity potential; mild nuclear sclerotic changes in both eye, and decreased visual acuity
stemming from head injury was provided. Medical reports and testing pertaining to appellant’s
eyes, including a July 24, 2014 prescription for eyeglasses were provided.

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In a September 23, 2011 report, Dr. Arpenik Avakian, a Board-certified ophthalmologist,
provided an impression of maculae scarring in both eyes, more pronounced in the right eye,
possibly representing residual changes from remote head trauma and macular commotion.
In a January 20, 2012 report, Dr. Degan noted appellant’s left elbow pain had started
about the same time as his knee pain began. He reviewed x-rays and provided an impression of
lateral epicondylitis versus medical epicondylitis and possible anterior elbow pain, and right
knee torn meniscus. Arthroscopic knee surgery was suggested.
Medical reports from Dr. David Taibleson, a Board-certified family practitioner, were
received. In a February 15, 2012 report, Dr. Taibleson noted the history of injury and provided
an impression of chronic dizziness, headache and depression. In a June 27, 2012 report, he
provided an impression of uncontrolled diabetes type 2, hypothyroidism, hypertension,
depression and right knee pain. In an October 10, 2012 report, Dr. Taibleson noted appellant’s
complaints of chronic neck pain and headaches and that he felt disabled from his 2006 head
injuries, but had not obtained a new psychiatrist. He noted that appellant had not been checking
his blood sugar levels, that he had not had an eye examination, that he had chronic mastoid
problems, for which surgery had been offered, and a history of seizures.
Progress notes and diagnostic studies were provided by Dr. Tyler Kimbrough, a Boardcertified otolaryngologist. In a January 20, 2012 note, Dr. Kimbrough noted a history of chronic
bilateral ear disease and that appellant had three operations on his ears. He advised that
appellant had complete conductive loss in both ears at low frequency, which may be either
ossicular discontinuity or otosclerosis, but that it was hard to determine given appellant’s prior
ear surgeries. Dr. Kimbrough interpreted a February 15, 2012 CT scan temporal bones. He
provided an impression of chronic otomastoiditis, bilateral, soft tissue density within old
mastoidectomy cavity, and filling the epitympanum both ears. No erosion of the horizontal canal
was noted and the remainder of the middle ear space was well aerated. A large perforation in the
left tympanic membrane was seen.
Several reports and audiological tests were provided by Dr. Jay Thal Rubinstein, a Boardcertified otolaryngologist. In a June 17, 2014 report, Dr. Rubinstein diagnosed chronic
tubotympanic suppurative otitis media, bilateral. On March 11, 2014 he noted that appellant
returned for follow up of his otorrhea. In an April 16, 2014 report, Dr. Rubinstein indicated that
appellant returned with usual complaints of pain and indicated that bright lights bothered him.
He noted that appellant stopped using his eardrops and had left-sided otorrhea. Dr. Rubinstein
suctioned out thick glue in left middle ear and instructed appellant to use bilateral eardrops. He
noted that appellant went to the emergency room as he was having fever and neck stiffness.
In a July 2, 2015 report, Dr. Donald M. Lum, a Board-certified ophthalmologist,
diagnosed bilateral central serous retinopathy and blurred vision. In a September 22, 2015
report, he noted appellant’s complaints of blurred vision and tinnitus which interrupted his sleep.
Dr. Lum noted that appellant had unremarkable brain MRI scan on July 15, 2015 and his past
history included the work injury. He diagnosed central serous retinopathy, bilateral, blurred
vision, Type II or unspecified type diabetes mellitus.

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In a July 10, 2015 report, Dr. Benjamin Poderski, a neurologist, indicated that appellant
presented with new neurologic concerns of intense buzzing and an electric sensation inside his
head. Appellant indicated that, when he coughed, he got a feeling of static coming from his head
which goes through his body. Dr. Poderski noted that there had been no documented seizures
since the onset of head trauma. An updated brain imaging was recommended given appellant’s
history of skull fracture, head trauma and meningitis.
In an October 5, 2015 report, Dr. Chiaki Dupre Gauntt, a Board-certified
ophthalmologist, noted the history of the work injury and appellant’s visual symptoms, which
included floaters that appellant stated blocked his vision. Past ocular history included history of
CSR OD with decreased vision; central serous chorioretinopathy of right eye, and subjective
visual disturbance. An assessment of subjective visual disturbance of both eyes, diplopia and
metamorphopsia were provided. Dr. Gauntt indicated that there was a mild decrease of retinal
tissue in the right eye, which was an expected finding with the history of central serous
chorioretinopathy (blisters in the macula), which had healed. He reported that appellant’s optic
nerve scans were essentially normal and appellant needed a good refraction (fitting glasses) and
eye movement measurement. Dr. Gauntt indicated that there were no neuro ophthalmologyrelated issues on examination and that appellant’s vertigo may have an impact on his visual
perception.
By decision dated November 5, 2015, OWCP denied modification of its December 9,
2014 decision.
On November 16, 2015 OWCP received appellant’s November 10, 2015 request for
reconsideration. Duplicative copies of evidence previously of record were received. Additional
evidence included copies of diagnostic testing of May 20, 2010, August 15 and 25, October 14,
2011, January 11, 2012, June 29 and July 15, 2015.
In a June 25, 2010 report, Dr. Gary Allen Stobbe, a Board-certified neurologist, reported
the history of the December 11, 2007 work injury and that appellant returned to full-time light
duty on January 16, 2008. He noted appellant’s complaints of significant increase in memory
difficulties, dizziness and headaches over the past month and that the increase was without any
clear etiology. Dr. Stobbe noted that appellant’s complaints of dizziness, headache, and
cognitive disturbance dated back to a closed head injury that involved a left cerebral contusion
and a left temporal skull fracture in December 2007. Considering that appellant did have a
residual ongoing from those injuries, Dr. Stobbe stated the recent worsening could be of any
cause, noting that individuals who have residual neurological complaints have “reduced
neurological reserve” and, therefore, any physical or psychological stressor could aggravate his
symptoms. From a neurological standpoint, the concern of increased migraine headache
phenomenon could aggravate those complaints. Also development of partial seizures would be
another potential cause considering he was in risk stage for developing seizures. Dr. Stobbe
advised that he doubted that there would be other intracranial processes. He noted that appellant
has had an updated brain MRI scan, which would be reviewed. Dr. Stobbe provided
recommendations to rule out evidence of other conditions and, assuming no new medical
processes, recommended continuing treatment of the benign positional vertigo.

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In a July 2, 2015 report, Dr. Lum followed up on appellant’s bilateral central serous
retinopathy and blurred vision and provided single field vision analysis.
In an October 9, 2015 report, Dr. Seth R. Schwartz, a Board-certified otolaryngologist,
saw appellant for chronically draining ears. He noted that appellant had a chronic history of
otorrhea and ear infections, that he has had multiple ear surgeries in both ears and a traumatic
accident at work in 2007 when he fell down the stairs and suffered a traumatic brain injury,
intracranial hemorrhage, transverse left temporal bone fracture and orthopedic injuries.
Dr. Schwartz opined that appellant had mild conductive loss in both ears. He indicated that
appellant had long-standing bilateral ear problems and provided a detailed discussion of
appellant’s ear conditions. Surgery was discussed.
In an October 29, 2015 report, Dr. Grazia S. Cinciripini, an ophthalmologist, diagnosed
monocular diplopia of both eyes, mytopia with astigmatism, bilateral; exophoria, central serous
retinopathy, bilateral and visual field defect. He provided a discussion on appellant’s diagnoses
and his vision, noting that the optic nerve appeared healthy and MRI scan of brain in July 2015
was within normal limits.
By decision dated December 23, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
FECA pays compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.5 Disability means the incapacity, because of an
employment injury, to earn the wages the employee was receiving at the time of injury. It may
be partial or total.6
A recurrence of disability means an inability to work, after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.7
It is the employee’s burden to establish that the claimed recurrence is causally related to
the original injury.8 Causal relationship is a medical issue that can generally be resolved only by
rationalized medical opinion evidence.9
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

Id. at § 10.5(x).

8

Id. at § 10.104. See also Mary A. Ceglia, 55 ECAB 626, 629 (2004).

9

See Jennifer Atkerson, 55 ECAB 317 (2004).

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complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.10 Where no such rationale is present, medical evidence is of diminished probative
value.11
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between his present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.12
ANALYSIS
OWCP accepted that appellant’s fall on December 11, 2007 resulted in left temporal bone
fracture, concussion with moderate loss of consciousness, meningitis (resolved), and head and
face contusions. Following the December 11, 2007 work injury, appellant returned to full-time
full duty in 2008. He stopped work on April 26, 2010 and has been in receipt of retirement
benefits from OPM as of May 23, 2010.
On August 26, 2014 appellant filed a recurrence claim for wage-loss compensation
effective April 26, 2010 and continuing, which OWCP denied as the medical evidence failed to
establish a change or worsening of his accepted work-related conditions. Appellant has the
burden of providing sufficient evidence, including rationalized medical evidence, to establish the
causal relationship asserted.13
Appellant submitted numerous reports from multiple medical providers regarding his
complaints of chronic neck pain, headaches, cognitive disturbances, dizziness, eye, ear, and
orthopedic conditions. While several conditions have been diagnosed, the medical reports of
record fail to contain adequate rationale on causal relationship.14 Furthermore, for conditions not
accepted by OWCP as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not OWCP’s burden to
disprove such relationship.15
In 2010 appellant was treated by Dr. Stobbe for an increase in dizziness, headaches, and
cognitive disturbances. In his June 25, 2010 report, Dr. Stobbe reported the history of injury and
10

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

11

Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see Ronald C. Hand, 49 ECAB 113 (1957).

12

Mary A. Ceglia, supra note 8.

13

Ricky S. Storms, 52 ECAB 349 (2001).

14

See D.U., Docket No. 10-144 (issued July 27, 2010) (medical reports not containing adequate rationale on
causal relationship are of diminished probative value and are insufficient to meet the claimant’s burden of proof);
Richard A. Neidert, 57 ECAB 474 (2006); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value); Jimmie H. Duckett, 52 ECAB
332 (2001).
15

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).

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that appellant had complaints of dizziness, headache and cognitive disturbance dating back to a
closed head injury that involved a left cerebral contusion and left temporal skull fracture in
December 2007. While he indicated that appellant had residuals ongoing from those injuries, he
did not indicate whether the residuals were supported by objective data, whether the conditions
had worsened, and whether they prevented appellant from work. Furthermore, Dr. Stobbe
advised that the recent worsening of appellant’s condition could be from any cause and noted
that any physical or psychological stressor could aggravate his symptoms. Thus, his June 25,
2010 report is insufficient to support appellant’s claim.16
Dr. Degan provided reports of November 18, 2011 and January 20, 2012 pertaining to
appellant’s bilateral knee pain and bilateral elbow pain. He diagnosed a right knee torn meniscus
and possible diagnosis regarding appellant’s left elbow, but he did not indicate the cause of such
conditions. The Board has found that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.17 Furthermore, it is unclear whether Dr. Degan was aware of the December 11,
2007 work injury. Accordingly, his reports are of limited probative value.
In her reports of August 11 and October 22, 2014, Dr. Hastings indicated that appellant
was disabled and not able to perform all of the essential functions of his position. She reported
that appellant had bilateral neck, arm, elbow, and back pain and that he had permanent cognitive
loss after the closed head injury. However, Dr. Hastings did not provide any medical
explanation as to how the closed head injury caused these newly diagnosed conditions pertaining
to appellant’s arm, elbow and back or worsened any accepted conditions. The lack of medical
rationale and lack of objective findings to show that appellant was disabled due to a material
change/worsening of his accepted work-related conditions greatly diminishes the probative value
of Dr. Hastings’ opinion.18
With regard to his neurological concerns, appellant sought treatment from Dr. Zhou in
2011, Dr. Taibleson in 2012 and Dr. Poderski in 2015. None of these reports, however, support
causation or a worsening of appellant’s accepted conditions. Dr. Zhou noted the history of the
December 11, 2007 work injury and presented examination findings. He concluded that there
were no active neurological issues and that he was not convinced that appellant had epileptic
seizures. While Dr. Zhou indicated that appellant had post-traumatic changes over frontal lobes
bilaterally on MRI scan, he advised that he was not sure of the clinical significance. He also
reported that appellant had probable major depression. However, this diagnosis is equivocal and
Dr. Zhou provides no medical rationale to support causal relationship.19 The Board has held that
a medical report is of limited probative value on the issue of causal relationship if it contains a

16

Id.

17

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

18

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

19

M.W., 57 ECAB 710 (2006).

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conclusion regarding causal relationship which is unsupported by medical rationale.20 Thus,
Dr. Zhou’s reports are insufficient to establish appellant’s claim.
In his reports, Dr. Taibleson noted the history of injury. In his February 15, 2012 report,
an impression of chronic dizziness, headache and depression and, in his June 27, 2012 report, an
impression of uncontrolled diabetes type 2, hypothyroidism, hypertension, depression and right
knee pain was provided. However, he only generally noted the employment incident but did not
relate any of the conditions to the traumatic injury. To be of probative value, a physician’s
opinion on causal relationship should be one of reasonable medical certainty.21 Thus,
Dr. Taibleson’s reports do not support causation or worsening residuals of the accepted injuries.
Dr. Poderski, in his July 10, 2015 report, indicated that appellant presented with new
neurologic concerns and ordered a brain MRI scan given his history of skull fracture, head
trauma and meningitis. He did not diagnose any condition or worsening residuals related to the
work injury. Thus, Dr. Poderski’s report does not support causation or worsening residuals of
the accepted injuries. Furthermore, the July 15, 2015 brain MRI scan was reported as
unremarkable with no evidence of an acoustic neuroma or significant interval change.
Medical reports pertaining to appellant’s bilateral eye conditions were also received. In
an August 25, 2011 report, Dr. Silverman noted that appellant had reported hospitalization with
meningitis with poor vision ever since the December 2007 head injury to right side of forehead.
He provided an impression of traumatic refinopathy both eyes with moderate visual acuity
potential, mild nuclear sclerotic changes in both eyes and decreased visual acuity stemming from
head injury. While Dr. Silverman supported causal relationship, his report is of limited probative
value as it is unsupported by medical rationale.22 In his September 23, 2011 report, Dr. Avakian
provided an impression of maculae scarring both eyes, possibly representing residual changes
from remote head trauma and macular commotion. The equivocal nature of the opinion on
causation and the lack of medical rationale diminishes the probative value of Dr. Avakian’s
opinion.23 Dr. Lum provided several diagnoses, but failed to offer an opinion on causation. In
his October 5, 2015 report, Dr. Gauntt noted the history of the work injury and indicated that
there was a mild decrease of retinal tissue in the right eye, which was an expected finding with
the history of central serous chorioretinopathy (blisters in the macula), which had headed. He
reported that appellant’s optic nerve scans were normal, there were no neuro ophthalmologyrelated issues on examination and that appellant’s vertigo may have an impact on his visual
perception. Dr. Gauntt also indicated that appellant needed glasses and eye movement
measurements. However, he offered no opinion on the cause of appellant’s central serous
chorioretinopathy or appellant’s vertigo. Dr. Cinciripini also provided several diagnoses for
appellant’s eye conditions, but provided no opinion on the cause of such conditions.24
20

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

21

See Beverly R. Jones, 55 ECAB 411 (2004).

22

T.M., supra note 20.

23

See M.W., supra note 19; Roma A. Mortenson-Kindschi, supra note 18.

24

See supra note 16.

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Furthermore, he reported that appellant’s optic nerve appeared healthy and the July 2015 MRI
scan of the brain was within normal limits. Accordingly, the reports from Drs. Silverman,
Avakian, Lum, Gauntt, and Cinciripini are insufficient to establish appellant’s recurrence claim.
Appellant submitted several reports from Drs. Kimbrough, Rubinstein, and Schwartz
concerning his ears, conditions not accepted in this claim. In his January 20, 2012 report,
Dr. Kimbrough noted a history of chronic bilateral ear disease, that appellant has had three
operations on his ears, that he has had recurrent drainage and infections in his ears for several
years and wears bilateral hearing aids. He reported that appellant has complete conductive
hearing loss in both ears at low frequency and interpreted a February 15, 2012 CT scan of the
temporal bones to show bilateral chronic otomastoiditis and large perforation in the left tympanic
membrane. Dr. Kimbrough did not provide an opinion on cause of the diagnosed ear
conditions25 and it is not clear that he was aware of the work injury. Thus, his report is
insufficient to establish appellant’s claim.
Dr. Rubinstein examined appellant in 2014. He diagnosed chronic bilateral tubotympanic
suppurative otitis media and provided follow-up reports on appellant’s otorrhea. Dr. Rubinstein
did not provide an opinion on cause of the diagnosed bilateral ear conditions and it is not clear
that he was aware of the work injury. Thus, his reports are insufficient to establish appellant’s
claim.26
In an October 9, 2015 report, Dr. Schwartz noted appellant’s history of ear conditions and
the December 11, 2007 work injury. While he opined that appellant has mild conductive loss in
both ears and was seen for chronically draining ears, Dr. Schwartz did not provide an opinion on
causation. Thus, this report is insufficient to establish appellant’s claim.
The diagnostic reports appellant submitted are likewise insufficient to establish his
recurrence claim. Appellant submitted x-ray reports of his elbows and knees, MRI scan reports
of his knees, brain, head, and cervical spine, CT scans of temporal bone and abdomen/pelvis,
EEG scans along with hearing and vision tests. While some of the tests describe appellant’s
current medical conditions or find no changes from past conditions, the interpreting physician
fails to provide any opinion on the cause of appellant’s current medical conditions. The Board
has found that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.27
Therefore, these diagnostic reports also fail to establish causal relationship and appellant’s
recurrence claim.
Appellant was advised by October 22, 2014 letter of the evidence needed to establish his
claim for recurrence of disability, including rationalized medical evidence from his attending
physician supporting a causal relationship between the accepted conditions and his condition on

25

Id.

26

Supra note 13.

27

Supra note 17.

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and after April 26, 2010. As he did not submit such evidence, he failed to meet his burden of
proof.28
On appeal, appellant takes issue with the amount of disability retirement benefits he
receives from OPM. This matter, however, is outside of the purview of the Board29 and is
irrelevant to his recurrence claim. The Board also notes that appellant appointed counsel after
this appeal was filed. On May 12, 2016 the Board received a brief from appellant’s counsel.
Counsel argued that OWCP should have doubled appellant’s files, and that appellant was
involuntarily separated, which caused him to seek OPM retirement. As previously noted, it is
appellant’s burden of proof to establish a recurrence of disability, during the period alleged, with
rationalized medical evidence.30
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
his medical conditions causally related to his December 11, 2007 employment injury.

28

Beverly A. Spencer, 55 ECAB 501 (2004).

29

The Board’s jurisdiction is limited to the review of final adverse decisions issued under FECA. See 20 C.F.R.
§§ 501.2(c) and 501.3(a).
30

Supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 23, 2015 is affirmed.
Issued: August 11, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS, Quantico, VA, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0412
Issued: October 22, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 20, 2017 appellant, through counsel, filed a timely appeal from an October 2,
2017 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 intermittent
disability during the period August 22, 2014 through March 10, 2016 causally related to her
accepted employment-related conditions.
FACTUAL HISTORY
On April 9, 2015 appellant, then a 42-year-old program analyst, filed an occupational
disease claim (Form CA-2) alleging that she sustained allergic rhinitis and environmentallyinduced asthma as a result of exposure to mold in her work location in Building 2010. She
attributed her condition to mold from an air conditioning unit, leaking building pipes, and rain
leakage. Appellant first became aware of her claimed condition and realized its relation to factors
of her federal employment on May 30, 2012. On August 30, 2016 OWCP accepted the claim for
permanent aggravation of asthma and permanent aggravation of allergic rhinitis. The employing
establishment indicated that, through the years, appellant had been relocated to other offices. On
March 10, 2016 it removed her from work for cause.3
On September 22, 2016 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period August 22, 2014 through March 10, 2016.
The evidence of record reveals that appellant was initially treated by Dr. Vandana Palagirl,
an internist, for allergic rhinitis due to workplace exposure on May 30, 2012. Dr. Palagirl
recommended that appellant not be further exposed to the environmental allergens. She
recommended that appellant be allowed to work from home or be relocated to another facility until
her condition improved or until her workplace was cleared of the existing allergens.
Appellant was seen at Stafford Hospital on August 22, 2014 for syncope and chest pain.
She was discharged on August 23, 2014 with diagnoses of chest pain and syncope likely due to
psychological stress and anemia.
In his initial report of February 27, 2015, Dr. Alan S. Chanales, a pulmonologist, related
that appellant had respiratory problems before beginning work at a new location in August 2009,
however, by 2010 her symptoms had worsened. He indicated that there had been obvious and
worsening mold conditions at her employing establishment, which were addressed in an
environmental report. Dr. Chanales also noted that, in August 2014, appellant had suffered a
myocardial infarction and had been off work except for a brief time in November when she had
returned to work and her respiratory symptoms worsened. He opined that she appeared to have
suffered a workplace environmentally-induced asthma condition due to the obvious mold problem
at her employing establishment. Dr. Chanales further opined that appellant should never return to
that environment.
Additional progress reports from Dr. Chanales indicated that appellant’s asthma and
rhinitis were due to her work exposure and she could never return to her previous work
3
Appellant was removed from employment due to failure to follow instructions, unauthorized absence, and
inappropriate conduct.

2

environment. In a March 17, 2015 note, he indicated that it was “cruel and unfair” to consider her
absent without leave given her health status. In a June 30, 2015 note, Dr. Chanales indicated that,
since appellant had not been back to the workplace, Building 2010, her asthma was quiescent with
full functionality and there was no need for medication. He opined that she could not return to her
previous workplace at Building 2010 as every time she had done so in the past, her asthma had
worsened. Dr. Chanales concluded that appellant needed to work in a location which was free
from mold and other contaminants and irritants.
In a September 18, 2015 report, Dr. Chanales indicated that appellant was working two
days a week at home and that the employing establishment was waiting for another environmental
report. He noted that her asthma from exposure to mold in her workplace was quiescent as long
as she was not exposed to mold. Dr. Chanales continued to opine that appellant could not return
to her place of employment. He recommended that she be allowed to telework for five days a
week or be transferred to another location which did not have a contamination problem.
On August 5, 2016 OWCP referred appellant for a second opinion examination. In an
August 18, 2016 report, Dr. Peter Birk, a Board-certified internist and pulmonologist and an
OWCP referral physician, reported her history of injury. He noted that appellant began to
experience respiratory symptoms while working in employing establishment Building 2010 in
May 2012 and that considerable mold was found in her office ceiling and ducts. Dr. Birk indicated
that she was transferred to Building 3101 and she continued to have symptoms. Appellant then
worked at the Davis Building and was asymptomatic. She was transferred back to Building 3101
and her symptoms resumed. Dr. Birk indicated that, despite abatement and a mold survey at the
building, appellant continued to have symptoms. He noted that she was admitted to Stafford
Hospital on August 22 to 23, 2014 for chest pain and syncope. Dr. Birk noted that appellant’s
workup was negative and that it was felt there was a psychological stress component. Appellant
reported that she was asymptomatic when she worked from home and while she was working in
the Davis Building. She also reported that she was terminated from employment on
March 10, 2016.
Dr. Birk reviewed the medical record and noted examination findings. He opined that
appellant’s diagnosed allergic rhinitis and asthma conditions were causally related to her work and
that she had a permanent aggravation to allergens each time she was exposed to Buildings 2010 or
3101. Dr. Birk concluded that, as her only limitation occurred when she was exposed to allergens
in Buildings 2010 or 3101, she could not work in those buildings. He noted that appellant was
able to work in the Davis Building or at home. Dr. Birk completed a work capacity evaluation for
cardiovascular/pulmonary conditions (OWCP-5b) form and indicated that she could not work in
employing establishment Building 2010.
By development letter dated October 6, 2016, OWCP advised appellant that additional
evidence was necessary to establish disability for work during the period claimed from August 22,
2014 through March 10, 2016 causally related to her accepted employment injury. It requested
that she submit additional evidence to establish a worsening of her accepted employment-related
conditions such that she was no longer able to perform the duties of her position when she stopped
work on August 22, 2014. OWCP afforded appellant 30 days to submit the necessary evidence.

3

In a December 14, 2016 letter, counsel related that the medical evidence in support of
disability had already been submitted. He alleged that the reports of record clearly indicated that
appellant was not permitted to return to work due to mold that had never been removed from her
worksite. Counsel also alleged that the employing establishment had not accommodated her. No
new medical reports were received.
By decision dated January 12, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period August 22, 2014 through March 10, 2016. It found that she had not
submitted any evidence in support of her claim for wage loss and that the employing establishment
had indicated in its November 15, 20154 letter that “accommodations were made for your
restrictions as provided by the second opinion examiner Dr. Birk.” OWCP noted that Dr. Birk had
concluded that appellant was able to perform all duties described as long as she was not required
to work in Building 2010 or “3010.” It further noted that the employing establishment’s letter
dated November 18, 2015 had indicated that accommodations had been made for her to work in
Building 2350 and/or 3101.
On February 7, 2017 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
In a July 17, 2017 letter, appellant’s representative in Equal Employment Opportunity and
Merit Systems Protection Board (MSPB) claims appellant had filed, provided a timeline of her
reasonable accommodations in her employment which he advised was from his prehearing
statement in her MSPB case. He advised that, from August 2013 until August 2014, the employing
establishment moved her at least seven times to various workplaces in Buildings 3101 and 3250.
On August 29, 2014 appellant submitted a reasonable accommodation request for telework and
submitted reports from Dr. Chanales. On November 25, 2014 the employing establishment issued
a decision on her August 29, 2014 reasonable accommodation request and instructed her to return
to work in Building 2010. On or about March 1, 2015, an air quality test in Building 2010 was
conducted and determined to be “Health Risk Assessment Code 4 (minor).” On May 24, 2015 the
employing establishment proposed appellant’s removal. On June 25, 2015 the employing
establishment directed her to report for duty in Building 2010 and to reengage in the reasonable
accommodation process. On July 13, 2015 appellant submitted a reasonable accommodation
request and asked for “reassignment to a work location free of mold, contaminants and irritants.”
On July 31, 2015 she provided medical documentation from Dr. Chanales. On August 12, 2015
the employing establishment instructed appellant to telework two days per week. On September 9
and October 6, 2015 it requested additional medical documentation. Appellant submitted
additional reports from Dr. Chanales on September 18, October 13, and December 23, 2015. On
January 7, 2016 the employing establishment instructed her to report for duty in Building 2010.
A telephonic hearing was held on July 18, 2017. Appellant testified that she only worked
in two Buildings 2010 and 3101. She indicated that there was no Building 3010 and that she never
had an accommodation or worked in Building 2350. Appellant testified that she could not work
in either Building 2010 or 3101 because of the mold. She testified that, on August 31, 2014 and
August 12, 2015, the employing establishment directed her to telework two days a week and then
4
There is no November 15, 2015 letter of record. OWCP appears to be referring to the employing establishment’s
letter of November 18, 2015.

4

placed her on involuntary leave without pay on Monday, Wednesday, and Friday. Appellant also
testified that her employment was terminated on March 10, 2016. Counsel argued that she was
disabled because she could not work in Buildings 2010 and 3101.
By decision dated October 2, 2017, an OWCP hearing representative affirmed the prior
decision. The hearing representative found that there was insufficient medical evidence to
establish that appellant’s claimed disability during the period August 22, 2014 through March 10,
2016 was causally related to the accepted work conditions. The hearing representative advised
that accommodations were made based on her restrictions, as related by Dr. Birk, that she could
not work in Buildings 2010 and 3101.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.6
Under FECA the term disability is defined as incapacity, because of employment injury, to
earn the wages that the employee was receiving at the time of injury.7
Whether a particular injury causes an employee to be disabled from work and the duration
of that disability are medical issues which must be proven by a preponderance of the reliable,
probative, and substantial medical evidence.8
The Board will not require OWCP to pay compensation for disability without any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.9
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s occupational claim for permanent aggravation of asthma and
permanent aggravation of allergic rhinitis. Dr. Birk, OWCP’s second opinion physician, had
concluded that she was able to perform all of her employment duties, except that she could not
work in employing establishment Buildings 2010 or 3101 due to the presence of allergens. OWCP
denied appellant’s claim for wage-loss compensation from August 22, 2014 through March 10,
5

Supra note 2.

6
S.J., Docket No. 17-0828 (issued December 20, 2017); G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

See Prince E. Wallace, 52 ECAB 357 (2001).

8

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

9

See S.J., supra note 6; Fereidoon Kharabi, id.

5

2016, finding that the medical evidence of record was insufficient to establish total disability as a
result of her accepted conditions. It noted that the employing establishment’s letter dated
November 18, 2015 had indicated that accommodations were made for her to work in Building
2350 and/or 3101. On October 2, 2017 an OWCP hearing representative affirmed the January 12,
2017 decision. The hearing representative noted that the employing establishment had advised
that accommodations were made based on appellant’s restrictions, which Dr. Birk had indicated
as not being able to work in Buildings 2010 and 3101.
OWCP’s regulations state in pertinent part: Compensation for wage loss due to disability
is available only for any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury. For example,
an employee is not entitled to compensation for any wage loss claimed on a CA-7 to the extent
that evidence contemporaneous with the period claimed on a CA-7 establishes that an employee
had medical work restrictions in place; that light duty within those work restrictions was available;
and that the employee was previously notified in writing that such duty was available.10
The Board notes that OWCP’s hearing representative concluded that the employing
establishment did not require appellant to work in Buildings 2010 and 3101. The record reflects
that on August 22, 2014, she was taken by ambulance from her workplace in Building 3101 to the
hospital and she was out of work from August 22 through November 16, 2014. Appellant briefly
returned to work in Building 3101 and then stopped work after November 19, 2014. At some
point, however, she resumed teleworking for two days a week.11 The record reflects that appellant
had requested several reasonable accommodation requests to which the employing establishment
had issued several responses which directed her to return to work in Building 2010. Her
restrictions, however, precluded her from working in Buildings 2010 and 3101.
Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact
and a statement of reasons.12 OWCP erred in its October 2, 2017 decision by failing to discuss or
analyze the evidence of record and hearing testimony as to where and when appellant was directed
to work during the claimed period of disability.
It is incumbent upon OWCP to review all of the evidence of record and make findings
based upon the evidence of record. OWCP should make findings as to whether appellant met her
burden of proof to establish whether entitlement to wage-loss compensation during the period
August 22, 2014 through March 10, 2016.13 Accordingly, the case will be set aside and remanded
for consideration of the factual evidence pursuant to the standards set out in section 20 C.F.R.
§ 10.126. After such further development as OWCP deems necessary, it shall issue a de novo
decision to protect appellant’s appeal rights.

10

20 C.F.R. § 10.500.

11

In her hearing testimony, appellant verified that she teleworked for two days per week, but indicated that this
occurred on August 31, 2014 and August 12, 2015.
12

20 C.F.R. § 10.126.

13

See Tia L. Love, 40 ECAB 586 (1989).

6

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 2, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 22, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Lyons, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0846
Issued: August 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On March 21, 2016 appellant, through counsel, filed a timely appeal from a December 1,
2015 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.
ISSUE
The issue is whether appellant has established that her refusal of suitable work was
justified.
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’s 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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as
presented in the prior appeal are incorporated herein by reference. The relevant facts are as
follows.
On July 30, 2009 appellant, then a 38-year-old library technician, filed a traumatic injury
claim (Form CA-1) alleging that her bilateral wrist condition was due to factors of her federal
employment. OWCP accepted the claim for bilateral carpal tunnel syndrome and paid
appropriate benefits. Appellant underwent a left carpal tunnel release on August 6, 2009 and a
right carpal tunnel release on September 4, 2012, which OWCP authorized. By decision dated
October 26, 2012, OWCP accepted a recurrence of disability on September 4, 2012 due to the
authorized surgery. Appellant stopped work and received medical and wage-loss compensation
benefits.
On July 17, 2013 the employing establishment offered appellant a full-time permanent
position as a library technician GS-1411-06 with limitations.4
By decision dated November 13, 2013, OWCP terminated appellant’s entitlement to
wage-loss compensation and schedule award benefits effective November 17, 2013 as she
refused to accept suitable employment. It found that the weight of the medical evidence rested
with Dr. Stanley Askin, a Board-certified orthopedic surgeon and OWCP referral physician, who
found that appellant was capable of performing the offered position. Appellant requested an oral
hearing before an OWCP hearing representative and, by decision dated July 8, 2014, the hearing
representative affirmed the November 13, 2013 decision. Appellant appealed to the Board. On
February 3, 2015 the Board affirmed OWCP’s November 3, 2013 decision terminating
compensation benefits, effective November 17, 2013, pursuant to 5 U.S.C. § 8106(c)(2) as
appellant had refused an offer of suitable work.5
Following the Board’s February 3, 2015 decision, appellant, through counsel, requested
reconsideration. Counsel submitted April 21 and May 13, 2015 medical reports from
Dr. Scott M. Fried, an osteopathic physician, in support of appellant’s claim.
In an April 21, 2015 medical report, Dr. Fried reported that appellant had been out of
work since 2012 as a result of her left and right wrist injuries. He noted that appellant reported
progressively worsening symptoms since his initial evaluation on June 5, 2014. Dr. Fried
provided findings on physical examination and diagnosed sympathetically mediated pain
syndrome of the left upper extremity with reactive depression; status post surgery right for
median nerve carpal tunnel decompression in August 2008 with recurrence; status post surgery
3

Docket No. 14-1886 (issued February 3, 2015).

4

The duties of the position were modified so that appellant would: lift one book at a time and lift no more than
10 pounds at one time; use a telephone headset to answer telephone calls; limit repetitive wrists movements of
typing and use of computer mouse to two hours per day; and stock a bookmobile cart with books one at a time, but
no pushing/pulling of the cart.
5

Supra note 3.

2

left for median nerve carpal tunnel decompression in September 2012 with ongoing symptoms
and recurrence; palmar cutaneous neuroma of the left wrist; and carpal tunnel median neuropathy
(repetitive strain injury) of the bilateral upper extremities secondary to work activities. He
explained that appellant could not return to her regular work activities and she remained
symptomatic. Dr. Fried noted that she required functional capacity testing to evaluate her
capabilities and limitations, including sensibility testing, dexterity testing, work and activity
simulation, a Lido work simulator, and actual performance of writing and keying. He further
recommended electromyography (EMG) and nerve conduction velocity (NCV) studies to
evaluate continued and significant nerve symptoms and continued therapy.
In a May 13, 2015 report, Dr. Fried provided physical examination findings, a history of
injury, and review of past medical reports. He explained that appellant’s initial secretary library
job involved significant computer work, causing her to develop bilateral carpal tunnel problems
in 2008. Appellant underwent right carpal tunnel surgery in August 2008 and returned to work
eight weeks later, performing highly repetitive activities with her hands and wrists which caused
her to become progressively symptomatic. Dr. Fried reported that she underwent left carpal
tunnel surgery in September 2012. However, the surgery was unsuccessful and caused ongoing
pain and burning which did not exist prior to the surgery. Dr. Fried explained that appellant
remained symptomatic and noted ongoing and increased symptoms when compared to her preop
status on the left, with increased pain and burning in the median nerve distribution and the
dysesthesias.
Dr. Fried reported that Dr. Christopher R. Ferrante, a Board-certified orthopedic surgeon,
had similar findings as he reported evidence of ongoing carpal tunnel median nerve involvement
and a neuroma in a February 27, 2013 EMG study. He reported that testing and treatment was
repeatedly denied by OWCP including a request for a magnetic resonance imaging (MRI) scan.
Dr. Fried noted that appellant related that she could not drive a car or hold the steering wheel due
to ongoing pain and discomfort with any activities, such as gripping, grasping, lifting, posturing,
keying, and writing. He noted that use of a computer was severely problematic and appellant
was not capable of performing these activities on a minimal basis. Dr. Fried stated that it was
inconceivable for appellant to key and use a mouse for two hours at a time, which were never
addressed in Dr. Askin’s report. He reported that there remained evidence of ongoing median
nerve carnal tunnel involvement. Dr. Fried noted that appellant had a work-related accepted
injury of bilateral carpal tunnel, but despite her surgical intervention, had ongoing evidence of
carpal tunnel and recurrent carnal tunnel. He explained that she did not get relief with surgery,
which could have been due to a partial release, incomplete release, recurrent scarring or scarring,
and possible injury to the palmar cutaneous branch of the median nerve at the left wrist with
neuroma.
Dr. Fried reported that reasonable medical treatment and diagnostics had been requested
from OWCP to assess her ongoing clinical complaints and symptoms which had been denied.
He disagreed with Dr. Askin, as he found that the job offer was outside of appellant’s limitations.
Dr. Fried opined that appellant’s return to those work activities would worsen, aggravate, and
exacerbate her condition, likely leading to either full blown chronic pain syndrome or further
surgery. He noted that his opinion was based on objective clinical findings which were positive
for Phalen’s test, reversed Phalen’s test, compression test, Tinel’s test, and evidence of
sympathetic reactivity with color changes and vascular instability in the hand and wrist.

3

Dr. Fried further cited review of the February 27, 2013 EMG study which showed evidence of
bilateral carpal tunnel involvement, left greater than right. He reported that appellant could not
resume work until her status could be fully determined through ultrasound, a new EMG/NCV
study, and a formal modified course of therapy. Dr. Fried reported that, once she stabilized, in
approximately 12 to 24 weeks, formal functional capacity evaluation testing could be performed
to specifically address and assess any job offers. Specifically, he noted testing for her ability to
write, key, lift, push, pull, and grasp was requested to determine her capabilities and limitations.
Dr. Fried concluded that appellant was restricted to strict sedentary capabilities, could answer a
telephone with a headset, and could not perform any regular keying, writing, pushing, pulling, or
grasping activities.
By decision dated December 1, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 It has authority under section 8106(c)(2) of FECA to
terminate compensation for any partially disabled employee who refuses or neglects to work
after suitable work is offered. To justify termination, OWCP must show that the work offered
was suitable, that appellant was informed of the consequences of her refusal to accept such
employment, and that she was allowed a reasonable period to accept or reject the position or
submit evidence or provide reasons why the position is not suitable.7
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.8 Section 10.517(a) of FECA’s implementing regulations provide that an employee
who refuses or neglects to work after suitable work has been offered or secured, has the burden
of showing that such refusal or failure to work was reasonable or justified.9 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.10

6

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

7

See Ronald M. Jones, 52 ECAB 190 (2000); see also Maggie L. Moore, 42, ECAB 484 (1991), reaff’d on
recon., 43 ECAB 818 (1992). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.4 (June 2013) (the claims examiner must make a finding of
suitability, advise the claimant that the job is suitable and that refusal may result in application of the penalty
provision of 5 USC § 8106(c)(2) and allow the claimant 30 days to submit his or her reasons for abandoning the job.
If the claimant submits evidence and/or reasons for abandoning the job, the claims examiner must carefully evaluate
the claimant’s response and determine whether the claimant’s reasons for doing so are valid).
8

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

9

20 C.F.R. § 10.517(a); Ronald M. Jones, supra note 7.

10

Id. at § 10.516.

4

After termination or modification of benefits clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant.11
ANALYSIS
OWCP accepted that appellant developed bilateral carpal tunnel as a result of her
employment-related duties and sustained a recurrence of disability on September 4, 2012
following her surgery. Effective November 13, 2013, it terminated appellant’s compensation
benefits because she refused an offer of suitable work. OWCP found that the weight of the
medical evidence established that the modified library technician position was within the
physical restrictions set forth by Dr. Askin, the OWCP referral physician.
The Board previously affirmed OWCP’s decision to terminate compensation benefits for
refusing suitable work. The Board’s February 3, 2015 decision was based on the record
compiled as of July 8, 2014, the date of decision by an OWCP hearing representative, which
included Dr. Askin’s July 5, 2013 report, as well as subsequent studies and reports from
appellant’s treating physicians. The Board’s previous review of evidence regarding the suitable
work termination is res judicata.12 The issue currently on appeal is whether the evidence later
submitted established that the termination decision should be modified.
The Board has explained that, if a claimant requests reconsideration of a suitable work
termination, the issue remains whether appellant has established that she was unable to perform
the duties of the offered position, as of the date of the termination.13
Appellant requested reconsideration and submitted Dr. Fried’s April 21 and May 13,
2015 reports in support of her claim. Dr. Fried disagreed with Dr. Askin’s assessment and
concluded that appellant was restricted to strict sedentary capabilities, could answer a telephone
with a headset, and could not perform any regular keying, writing, pushing, pulling, or grasping
activities. He described the work restrictions provided with the job offer and opined that it was
outside appellant’s limitations. Dr. Fried argued that she could not perform activities of daily
living, let alone on a repetitive basis for two to four hours per day, and a return to the described
work activities would worsen, aggravate, and exacerbate her condition. The Board has long held
that prophylactic work restrictions do not establish a basis for wage-loss compensation.14 A fear
of future injury is not compensable under FECA.15 Moreover, the physician’s opinion that
appellant could not drive a car or perform activities of daily living are based on appellant’s selfreported assertions and lack specific testing to make these determinations.16
11

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

12

See G.S., Docket No. 14-408 (issued June 10, 2014).

13

See J.J., Docket No. 14-951 (issued September 2, 2014).

14

D.N., Docket No. 14-657 (issued June 26, 2014).

15

Manuel Gill, 52 ECAB 282, 286 n.5 (2001).

16

B.B., Docket No. 06-1033 (issued November 30, 2006).

5

While Dr. Fried found that appellant continued to experience residuals of her bilateral
carpal tunnel injury through bilateral carpal tunnel median nerve involvement, he failed to
sufficiently explain why appellant was unable to perform the duties of the offered position as of
the date of termination.17 Dr. Fried reported that additional diagnostic testing was needed in the
form of EMG, MRI, and muscle ultrasound. He further argued that functional capacity testing
was necessary to evaluate her capabilities and limitations, including sensibility testing, dexterity
testing, work and activity simulation, a Lido work simulator, and actual performance of writing
and keying. Dr. Fried’s reports do not support that appellant was unable to perform the limitedduty position at the time of the termination decision as he stated that further testing was required
to assess her capabilities. Without concrete objective testing to back his assertions, Dr. Fried’s
reports are insufficient to establish total disability.18
Dr. Fried reported that, although appellant had surgical intervention, she had ongoing
evidence of carpal tunnel and recurrent carpal tunnel. He reported that appellant received no
relief from her surgery. The Board notes that Dr. Fried’s opinion is speculative with no concrete
assertion that appellant’s surgical intervention failed, resulting in injury and disability.
Dr. Fried’s opinion that the September 2012 left carpal tunnel surgery was unsuccessful due to
more severe complaints postop is equivocal with no objective medical support. Moreover, he
failed to explain why appellant’s condition continued to worsen despite not having worked in
over three years. Such an explanation is necessary to support that appellant was disabled from
performing the offered position to reverse the termination decision.19 An employee who refuses
or neglects to work after suitable work has been offered has the burden of showing that such
refusal to work was justified.20 As appellant has failed to provide sufficient justification for
refusing suitable work, OWCP properly denied modification of its November 13, 2013
decision.21
On appeal counsel argues that the reports of Dr. Fried established that appellant was not
offered suitable work and OWCP failed to meet its burden of proof. However, these additional
medical reports were not submitted until after OWCP’s hearing representative’s July 8, 2014
decision. The Board, in its February 3, 2015 decision, already determined that OWCP met its
burden of proof and properly terminated appellant’s compensation, effective
November 17, 2013. The findings of the February 3, 2015 Board decision are res judicata
absent any further review by OWCP under section 8128 of FECA.22 As previously noted, it is
currently appellant’s burden of proof to establish that her refusal to accept the offered modifiedduty position was justified.23
17

E.R., Docket No. 07-1769 (issued April 28, 2008).

18

R.T., Docket No. 16-0543 (issued May 20, 2016).

19

Supra note 13.

20

5 U.S.C. § 8106(c)(2).

21

T.S., Docket No. 15-1539 (issued November 18, 2015).

22

See Robert G. Burns, 57 ECAB 657 (2006).

23

R.K., Docket No. 14-476 (issued September 12, 2014).

6

Counsel also argues that, at the very least, a conflict has been created between Dr. Askin,
serving as the referral physician, and Dr. Fried. When two physicians give reasoned, but
differing opinions concerning causal relationship and one physician’s opinion is based on an
inaccurate or incomplete factual or medical background, the opinion based on an accurate factual
or medical history typically has more probative value.24 For the reasons noted above, Dr. Fried’s
opinion was not fully rationalized to create a conflict in the case.
Accordingly, the Board finds that the evidence submitted insufficient to establish that
appellant’s refusal to accept the suitable job offer was justified. It is appellant’s burden of proof
and she has not met her burden in this case.25
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant has not established that her refusal of suitable work was
justified.

24

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.6(a)(1) (September 2010).
25

See, e.g., Hazel N. Clark, Docket No. 04-0905 (issued August 13, 2004) (the Board had previously found the
offered position to be suitable. Appellant requested reconsideration. The Board affirmed OWCP’s finding that
appellant had not met her burden of proof to establish that her refusal to accept the suitable job offer was justified.

7

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ALABAMA HEALTHCARE
SYSTEM, Montgomery, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)

Docket No. 17-0809
Issued: July 21, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On February 21, 2017 appellant filed a timely application for review from an August 25,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 17-0809.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. Appellant filed a traumatic injury claim (Form CA-1)
alleging that on March 19, 2013 she had neck, back, shoulder, and arm pain when a veteran lost
his balance and pulled her arm. She submitted medical evidence in support of her claim. In an
August 8, 2013 decision, OWCP denied appellant’s claim finding that the medical evidence of
record was insufficient to establish that she had a medical condition causally related to the
accepted employment incident. On August 25, 2013 appellant requested a telephone hearing
before an OWCP hearing representative and submitted additional medical evidence. In an
April 30, 2014 decision, an OWCP hearing representative affirmed the August 8, 2013 decision.
She found that the medical evidence of record did not contain a rationalized medical opinion to
establish that appellant sustained an injury causally related to the accepted March 19, 2013
employment incident.
By letter dated August 10, 2016, appellant requested reconsideration. In an August 25,
2016 decision, OWCP applied the standard applicable to timely requests for reconsideration and
denied appellant’s request for reconsideration after finding that she had neither raised substantive

legal questions nor included new, relevant evidence sufficient to warrant reopening the case for
further merit review under section 8128(a) of FECA.1 As the last merit decision issued in this
case was issued on April 30, 2014, appellant’s August 10, 2016 request for reconsideration was
untimely. OWCP regulations provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original OWCP merit decision.2 Aright to
reconsideration within one year also accompanies any subsequent merit decision on the issues.3
OWCP procedures provide that timeliness is determined by the date that the request is received
by OWCP (the received date in the Integrated Federal Employees’ Compensation System
(iFECS)).4 If the request for reconsideration has a document received date greater than one year,
the request must be considered untimely.5 As appellant’s request for reconsideration was
untimely filed, OWCP erroneously reviewed her request for reconsideration using the standard
for timely reconsideration requests.6 The Board will, consequently, remand the case for
application of the proper standard, to be followed by the issuance of an appropriate decision.
IT IS HEREBY ORDERED THAT the August 25, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607(a).

3

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

4

Supra note 2; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(February 2016); G.F., Docket No. 15-1053 (September 11, 2015).
5

R.Y., Docket No. 16-1301 (issued December 15, 2016); T.E., Docket No. 16-0574 (issued August 18, 2016).

6

See L.D., Docket No. 15-0865 (issued October 6, 2015); H.L., Docket No. 13-2077 (issued March 20, 2014).

2

Issued: July 21, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Portland, OR,
Employer
__________________________________________

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

Docket No. 19-0987
Issued: October 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 4, 2019 appellant filed a timely appeal from a January 18, 2019 merit decision
and a March 22, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
10 percent binaural hearing loss, for which he previously received schedule award compensation ;
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 22, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

and (2) whether OWCP properly denied appellant’s request for an oral hearing before an OWCP
hearing representative as untimely filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On March 27, 2018 appellant, then a 60-year-old production machinery mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss and tinnitus
causally related to factors of his federal employment. He indicated that he first became aware of
his condition and its relationship to factors of his federal employment on December 20, 2010.
OWCP received an employing establishment summary listing of appellant’s audiogram
testing results from March 1, 1999 through February 16, 2017.
On August 8, 2018 OWCP referred appellant for a second opinion evaluation with
Dr. Harold Kim, a Board-certified otolaryngologist. In his August 21, 2018 report, Dr. Kim
examined appellant due to his history of hearing loss with tinnitus, and calculated a permanent
impairment rating. He obtained an August 21, 2018 audiogram, which indicated that testing of the
right ear at frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed decibel (dB)
losses of 25, 30, 25, and 55, respectively. Pursuant to the standardized procedures, Dr. Kim totaled
these dB losses at 135 and divided by 4 to obtain an average hearing loss at those cycles of 33.75
dBs. The average of 33.75 dBs was then reduced by 25 dBs (the first 25 dBs were discounted as
discussed below) to equal 8.75, which was then multiplied by 1.5 to equal 13.125 percent hearing
loss for the right ear. Testing for the left ear at frequency levels of 500, 1,000, 2,000, and 3,000
Hz revealed dB losses of 20, 20, 35, and 50, respectively. These dBs were totaled at 125 and were
divided by 4 to obtain the average hearing loss at those cycles of 31.25 dBs, and then reduced by
25 dBs to equal 6.25 which was then multiplied by 1.5 to equal 9.375 percent hearing loss for the
left ear. To determine appellant’s binaural hearing loss, the lesser loss of 9.375 was multiplied by
5 to total 46.875, the greater loss of 13.125 was then added to total 60, and was then divided by 6
to determine the binaural loss of 10 percent. Dr. Kim concluded that, pursuant to the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 appellant had 10 percent binaural hearing loss.
By decision dated September 24, 2018, OWCP accepted appellant’s claim for “noise
effects on inner ear, bilateral and bilateral tinnitus.”
On September 27, 2018 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist serving as
an OWCP district medical adviser (DMA), reviewed appellant’s medical record and a statement
of accepted facts (SOAF). He indicated that the earliest audiogram on record was dated
March 1999 and that the latest audiogram on record was dated August 21, 2018. Dr. Israel
concurred with Dr. Kim’s assessment of 10 percent binaural hearing loss. He determined the date
of maximum medical improvement was August 21, 2018, the date of appellant’s last audiogram.
Dr. Israel also noted that, while Dr. Kim related that appellant was bothered by constant ringing in
the ears, there was no discussion of tinnitus in the records other than that and no suggested tinnitus
impairment score. He indicated that a tinnitus handicap inventory would be useful.
3

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

2

By decision dated October 24, 2018, OWCP accepted appellant’s claim for binaural
sensorineural hearing loss and tinnitus.
On November 13, 2018 appellant filed a claim for a schedule award (Form CA-7).
By decision dated January 18, 2019, OWCP granted appellant a schedule award for 10
percent binaural hearing loss. The award ran from August 22, 2018 to January 8, 2019, for a total
of 140 days of compensation.
On February 27, 2019 appellant requested a telephonic oral hearing before an OWCP
hearing representative.
By decision dated March 22, 2019, OWCP’s hearing representative determined that
appellant was not entitled to an oral hearing as a matter of right because his request was untimely
filed. The hearing representative also denied a discretionary hearing, finding that the contested
issue could equally well be addressed by appellant requesting reconsideration and providing new
evidence or argument to establish that he had a greater percentage of permanent impairment than
awarded.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 4 and its implementing regulations 5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
or loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so that
there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides. For decisions issued after May 1, 2009, OWCP began using the sixth edition of the
A.M.A., Guides.6 The Board has approved OWCP’s use of the A.M.A., Guides for the purpose of
determining the percentage loss of use of a member of the body for schedule award purposes. 7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.8 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

A.M.A., Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

R.H., Docket No. 18-1721 (issued March 25, 2019); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
8
R.B., Docket No. 19-0257 (issued August 5, 2019); A.G., Docket No. 17-1778 (issued December 18, 2018); E.S.,
59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

3

frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. 9 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by
five and then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. 10
Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury. 11 If tinnitus interferes with activities of daily
living, including sleep, reading, and other tasks requiring concentration, up to five percent may be
added to a measurable binaural hearing impairment. 12
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
OWCP properly referred appellant to Dr. Kim for a second opinion examination relative
to his hearing loss. 13 On September 27, 2018 Dr. Israel, serving as OWCP’s DMA, reviewed
Dr. Kim’s report and concurred with his findings and conclusions. Both Dr. Kim and Dr. Israel
properly applied the standardized procedures to the August 21, 2018 audiogram performed for
Dr. Kim to determine that appellant had a 10 percent binaural hearing loss.
However, the Board finds that the case is not in posture for decision as OWCP did not
properly develop whether appellant was entitled to an additional schedule award for his accepted
tinnitus. As noted above, the A.M.A., Guides provides that, “if tinnitus interferes with activities
of daily living, such as sleep, reading, enjoyment of quiet recreation, and emotional wellbeing, up
to five percent may be added to a measurable binaural hearing impairment”14
It is well established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter. 15 While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.16 Once OWCP undertook development of the evidence it had a duty to secure an
9

A.M.A., Guides at 250 (6th ed. 2009).

10

Id.

11

See id. at 249 (6th ed. 2009).

12

Id.

13

Id.

14

Supra note 12.

15

T.O., Docket No. 18-0659 (issued August 8, 2019).

16
Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell,
34 ECAB 1233, 1237 (1983).

4

appropriate report addressing the relevant issues. 17 OWCP accepted the claim for tinnitus, but
Dr. Israel noted that the record did not provide documentation of a tinnitus impairment score.
Dr. Israel recommended that a tinnitus handicap inventory be prepared. However, it did not obtain
any further documentation relative to appellant’s tinnitus. Since OWCP did not obtain the
necessary evidence to determine appellant’s entitlement to an additional award for tinnitus, the
case will be remanded to OWCP to obtain the necessary documentation. Following this and any
necessary further development, it shall issue a de novo decision relative to the extent and degree
of appellant’s hearing impairment. 18
CONCLUSION
The Board finds that this case is not in posture for decision.
IT IS HEREBY ORDERED THAT the March 22 and January 18, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: October 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

18

In light of the Board’s disposition of issue 1, issue 2 is rendered moot.

5