United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE MATERIEL COMMAND, WRIGHTPATTERSON AIR FORCE BASE, OH,
Employer
__________________________________________

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

Docket No. 13-1924
Issued: February 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 19, 2013 appellant filed a timely appeal from a July 15, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant’s work activity on January 28, 2013 caused an injury.

1
2

5 U.S.C. § 8101 et seq.

Appellant’s application for review by the Board indicates that he is appealing an August 12, 2013 decision of
OWCP, but no such decision appears in the record.

FACTUAL HISTORY
On January 28, 2013 appellant, a 57-year-old pipefitter helper (boiler plant helper), filed
a traumatic injury claim alleging that he suffered right testicular pain that day while removing
bolts on a heat exchanger. He stated that his testicle would probably have to be removed.
On February 8, 2013 OWCP asked appellant to submit additional evidence to establish
his claim, including a physician’s opinion, supported by a medical explanation, as to how the
reported work incident caused or aggravated his medical condition. It held his case open for 30
days to afford him the opportunity to submit the requested information.
In a decision dated March 21, 2013, OWCP denied appellant’s injury claim. It had
received no further evidence from him. OWCP found the evidence was insufficient to establish
that the incident occurred as alleged.
Appellant requested reconsideration on April 3, 2013. OWCP received his request on
April 9, 2013.
In an April 9, 2013 statement, a coworker explained that on January 28, 2013 he saw
appellant using large wrenches to remove some large nuts off the head of a heat exchanger:
“After approximately an hour of removing the nuts I noticed [appellant] wincing
in pain. [Appellant] [stated] he was going to have [to] get some more tools to
help in the process. As he was walking away I noticed it was hard for him to
walk. When [appellant] returned with extra tools I noticed he was in more pain.
As we were getting ready to leave for lunch he couldn’t get into the truck.
[Another worker] and I had to help [appellant] walk to the truck and help him get
in.”
Two other coworkers provided similar statements.
On January 28, 2013 the employing establishment health unit noted the following history
of present illness: “Removing frozen bolts at work and felt pain in low back on left, increasing
pain right groin and right testicle, has been increasing since 0900, now unable to sit down and
very painful to move.” Dr. John W. Woltz, an osteopath specializing in family medicine,
indicated that he was unable to rule out hernia and that testicular torsion was also a possibility.
He sent appellant to a local emergency department for a complete evaluation.
At the emergency department, an ultrasound report indicated a small well-circumscribed
ovoid anechoic space on the right measuring eight millimeters and no evidence of torsion. A
specialist in emergency medicine prescribed medications and advised appellant to follow up with
his primary care physician within two days.
With a diagnosis of chronic right testis pain, appellant underwent a right orchiectomy
with implant on February 11, 2013. A pathology report found a relatively small parenchymal
benign cyst with no atypia or active inflammation.

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On April 4, 2013 Dr. Stephen L. Dona, an osteopath specializing in urological surgery,
completed an attending physician’s form report. He diagnosed orchalgia and indicated that this
condition was preexisting to 1994. Asked whether this condition was caused or aggravated by
employment activity, Dr. Dona responded: “? Maybe could have been aggravated.”
In a decision dated July 15, 2013, OWCP advised appellant that it had declined his
request for reconsideration and had not reviewed the merits of his case. Nonetheless, it found
that the evidence was now sufficient to support that on January 28, 2013 he was using large
wrenches to remove a difficult bolt. OWCP further found that the medical evidence was
insufficient to establish a medical diagnosis causally connected to this work incident.
On appeal, appellant notes that, although Dr. Dona stated that he was not there to see
what happened, there were witnesses who had submitted statements as to what occurred.
Appellant asks only for a fair decision.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
At the outset, the Board notes that although OWCP advised in its July 15, 2013 decision
that it did not review the merits of appellant’s case, OWCP reviewed the merits and made
3

5 U.S.C. § 8102(a).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

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findings. It weighed the evidence and found that it was now sufficient to establish that the
incident occurred as alleged but was insufficient to establish the element of causal relationship.
For this reason, the Board finds that OWCP’s July 15, 2013 decision is a decision on the merits
of appellant’s case.9
There is no dispute as to appellant’s activities on January 28, 2013. With the submission
of statements from his coworkers, OWCP accepts that he used large wrenches to try to remove
frozen bolts. Appellant has therefore established that he experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged.
The question that remains is whether appellant’s work activity on the morning of
January 28, 2013 caused an injury. This is a medical question that must be addressed by a
physician’s well-reasoned opinion explaining how the accepted work activity caused appellant’s
diagnosed condition.
None of the medical evidence provides an affirmative opinion on causal relationship.
Dr. Woltz, the health unit osteopath, offered no firm diagnosis of appellant’s condition. He was
unable to rule out hernia, but that was not something he diagnosed. Indeed, none of the medical
evidence in this case supports that appellant suffered a hernia. Dr. Woltz also found that
testicular torsion was a possibility, but an ultrasound report from the emergency department that
day demonstrated no evidence of torsion.
The February 11, 2013 operative report also offered no firm diagnosis of appellant’s
condition. It simply indicated that he suffered from chronic right testis pain. The report did not
identify what caused this symptom. A pathology report found a relatively small parenchymal
benign cyst, but there was no indication that this was the source of appellant’s chronic pain.
Appellant’s surgeon, Dr. Dona, completed a form report. As a rule, when a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, that opinion has
little probative value and is insufficient to establish causal relationship.10 Dr. Dona did not check
“yes” when asked if appellant’s condition was caused or aggravated by employment activity. He
responded with a question mark and stated that it “maybe could have been aggravated.” Such
speculation carries little weight and is not sufficient to discharge appellant’s burden of proof.11
Further, Dr. Dona did not demonstrate his understanding of what happened on January 28, 2008.
Medical conclusions based on inaccurate or incomplete histories are also of little probative
value.12

9

E.g., A.C., Docket No. 07-2423 (issued May 15, 2008).

10

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

11

See Jennifer Beville, 33 ECAB 1970 (1982) (finding that a physician’s opinion that the employee’s complaints
“could have been” related to her work injury was speculative and of limited probative value).
12

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

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Because appellant has failed to submit a physician’s well-reasoned opinion on the critical
element of causal relationship, one based on a complete and accurate factual history, the Board
finds that he has not met his burden of proof to establish that his work activity on the morning of
January 28, 2013 caused an injury.
The record indicates that appellant had been suffering from testicular pain since 1994. It
indicates that he was suffering from this pain on the morning of January 28, 2013.13 The mere
fact that a condition manifests itself or worsens during a period of federal employment, however,
raises no inference of causal relationship between the two.14 What medical condition was causing
appellant’s pain, and whether work activity on the morning of January 28, 2013 caused any
aggravation of that medical condition, remains unknown.
Appellant indicates that his doctor would not give an opinion because he was not an
eyewitness. It is established as a matter of fact, however, that appellant was using large
wrenches to try to remove some large bolts on a heat exchanger. Appellant’s doctor may rely on
this history for any opinion he may give on the issue of causal relationship.
On the issue of fairness, appellant has filed a claim for compensation benefits; therefore,
he has the burden of proof to establish his entitlement to such benefits. This includes submitting
a rationalized medical opinion establishing a causal connection between his work activity on the
morning of January 28, 2013 and a firmly diagnosed medical condition. As appellant has not yet
done so, the Board must affirm the denial of his claim.
Appellant may submit new evidence or argument, however, 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 his burden to establish that his work activity
on January 28, 2013 caused an injury.

13

The chronic nature of appellant’s condition is evidenced by the fact that, when he filed his claim for
compensation benefits that day, he already understood that his right testis would probably have to be removed.
14

Steven R. Piper, 39 ECAB 312 (1987).

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ORDER
IT IS HEREBY ORDERED THAT the July 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hamilton, OH, Employer
__________________________________________

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

Docket No. 08-50
Issued: April 9, 2008

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 July 24, 2007 appellant, through counsel, filed a timely appeal from a decision of the
Office of Workers’ Compensation Programs’ hearing representative dated September 11, 2007,
which affirmed a decision dated April 9, 2007 terminating her compensation benefits. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective April 7, 2007; and (2) whether she has established any continuing disability or
residuals subsequent to April 7, 2007.
FACTUAL HISTORY
On October 10, 2003 appellant, then a 35-year-old full-time regular carrier, sustained a
sprained left ankle and a left knee contusion when she fell while delivering mail. The Office
accepted the claim for left knee contusion, left ankle sprain and left knee strain and abrasion, and

left knee torn lateral meniscus. The Office authorized left knee arthroscopic surgery which was
performed on December 23, 2005. Appellant returned to limited-duty work on January 3, 2006.
On April 18, 2006 Dr. Steven J. Goldfarb, a treating Board-certified orthopedic surgeon,
diagnosed persistent leg pain of unknown etiology. A physical examination revealed no
effusion, no ligamentous instability, no edema in either lower extremity, bilateral knee diffuse
tenderness and “neurologically intake in both lower extremities. Dr. Goldfarb recommended that
electromyography (EMG) be performed to determine the source of appellant’s leg pain.
In a June 6, 2006 report, Dr. Goldfarb diagnosed persistent leg pain of unknown etiology.
A physical examination revealed no effusion, no ligamentous instability, no edema in either
lower extremity, bilateral knee diffuse tenderness and “neurologically intake in both lower
extremities.” Dr. Goldfarb stated “[appellant’s] EMG was repeated and had resolved to normal.”
He indicated his concern that appellant’s leg pain was indicative of a neurological rather than
orthopedic problem. Dr. Goldfarb attributed appellant’s leg pain to her employment injury as
she had no symptoms prior to the 2003 employment injury, “and therefore I feel the majority of
her symptoms are most likely related to the work injury of 2003.” He concluded “the work
restrictions that we are providing should be related to her work injury of 2003.”
On October 24, 2006 the Office referred appellant to Dr. E. Gregory Fisher, Boardcertified in orthopedic surgery, for a second opinion evaluation.
In a November 2, 2006 report, Dr. Goldfarb diagnosed persistent ankle and leg pain of
unknown etiology. He related that a repeat magnetic resonance imaging (MRI) scan showed a
lateral meniscal tear and subsequent arthroscopy revealed no significant pathology. In addition,
Dr. Goldfarb stated “[re]peat EMG studies have shown complete resolution of the peroneal nerve
function.” He noted that appellant “has persistent knee and ankle pain despite all normal
studies” and believed she had a chronic pain syndrome/reflex sympathetic dystrophy of her left
lower extremity.
On November 15, 2006 Dr. Fisher diagnosed left ankle sprain, left knee sprain, left knee
contusion, left knee contusion, all resolved. A physical examination revealed no knee effusion,
tenderness and over patella, negative Apley test, negative McMurray test and no decreased
sensation or sensory loss over the left foot or calf area. Dr. Fisher reported that appellant was
able to fully extend the knee and able to flex the knee to 130 degrees. He noted that there was no
objective evidence supporting any residuals of the accepted conditions or that a left lateral
meniscal tear was present following her December 23, 2005 surgery. Dr. Fisher attributed
appellant’s left knee pain to her patella chondromalacia and left ankle findings, which he opined
were strictly subjective. He opined that appellant was capable of performing her date-of-injury
position without any physical restrictions.
On March 8, 2007 the Office issued a notice of proposed termination of compensation
benefits. In an April 9, 2007 decision, the Office terminated her benefits effective April 7, 2007.
On April 13, 2007 appellant’s counsel requested an oral hearing before an Office hearing
representative, which was held on August 8, 2007.

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On May 11, 2007 the Office received Dr. Goldfarb’s April 9, 2007 response to its request
that he review Dr. Fisher’s findings.
Dr. Goldfarb opined that appellant’s patella
chondromalacia was aggravated by her employment injury as it did not preexist her October 10,
2003 employment injury. He stated that appellant continued to have persistent left knee pain
complaints, which he attributed to her 2004 industrial injury. Dr. Goldfarb advised that she
could not perform all of her regular job duties.
By decision dated September 11, 2007, an Office hearing representative affirmed the
termination of appellant’s compensation benefits.1
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.5
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits. In reports dated June 6 and November 2, 2006, Dr. Goldfarb, appellant’s
attending Board-certified surgeon, diagnosed persistent left leg pain of unknown etiology. He
noted that all the objective evidence was normal. Dr. Goldfarb stated that the most recent MRI
scan showed a lateral meniscal tear with subsequent arthroscopy revealing no significant
pathology and a repeat EMG showed “complete resolution of the peroneal nerve function.”
The Office referred appellant to Dr. Fisher for a second opinion evaluation. In a report
dated November 15, 2006, Dr. Fisher discussed appellant’s history of injury and the results of
MRI scans and EMG study. The Board has carefully reviewed Dr. Fisher’s opinion and finds
1

The Board notes that appellant had filed an appeal with the Board from an Office hearing representative’s
decision dated June 25, 2007 affirming the denial of her claim for wage-loss compensation for the period April 15 to
June 9, 2006. The Board docketed the appeal as 07-1980. The Board issued a decision on this claim on
March 3, 2008. See Docket No. 07-1980 (issued March 3, 2008).
2

Paul L. Stewart, 54 ECAB 824 (2003).

3

Elsie L. Price, 54 ECAB 734 (2003).

4

See Del K. Rykert, 40 ECAB 284 (1988).

5

James F. Weikel, 54 ECAB 660 (2003).

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that it has reliability, probative value and convincing quality with respect to the conclusion
reached regarding whether appellant has any further disability due to her accepted employment
injuries of left knee contusion, left ankle sprain, left knee strain and abrasion and torn lateral left
knee meniscus. Dr. Fisher related that there was no objective evidence supporting any residuals
of the accepted conditions or that a left lateral meniscal tear was still present following her
December 23, 2005 surgery. He noted that appellant exhibited a full range of motion of the left
knee. Dr. Fisher attributed appellant’s left knee pain to her patella chondromalacia and left ankle
findings, which he opined were “strictly subjective ones without any objective findings.” He
concluded that appellant was capable of performing her date-of-injury position without any
physical restrictions. Dr. Fisher provided a thorough review of the factual and medical
background of appellant’s claim and accurately summarized the relevant medical evidence. He
provided a proper analysis of the factual and medical evidence and findings on examination and
reached conclusions regarding his condition which comported with this analysis.6 Dr. Fisher’s
report represents the weight of medical opinion.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.7 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors.8 The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.9
ANALYSIS -- ISSUE 2
Subsequent to the Office’s termination of compensation, appellant submitted a report
dated April 9, 2007 from Dr. Goldfarb, who opined that appellant’s patella chondromalacia had
been aggravated by her employment injury. Dr. Goldfarb also concluded that appellant was
unable to perform the duties of her date-of-injury job due to her employment injury. He
provided no rationale beyond noting that the patella chondromalacia condition had not been
6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
8

Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

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present prior to the employment injury. Dr. Goldfarb’s opinion is of diminished probative value
as he did not adequately explain how appellant’s condition was caused or contributed to by the
accepted injury. Thus, his report is insufficient to support payment of compensation. Appellant
has not met his burden of proof to establish any continuing employment-related disability.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
authorization for medical treatment effective April 7, 2007 on the grounds that she had no further
disability or residuals causally related to her October 10, 2003 employment injury. The Board
further finds that appellant has not established that she had any continuing employment-related
disability after April 7, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 11, 2007 is affirmed.
Issued: April 9, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Addison, TX, Employer
__________________________________________

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

Docket No. 08-2121
Issued: May 11, 2009

Case Submitted on the Record

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

JURISDICTION
On July 28, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 11, 2008 regarding a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 20 percent permanent impairment to her
right arm.
FACTUAL HISTORY
There are two claims that have been administratively combined in this case. According
to a July 12, 2007 statement of accepted facts (SOAF), the Office accepted a November 1, 1999
claim for bilateral carpal tunnel syndrome, bilateral medial and lateral epicondylitis, bilateral
synovitis and tenosynovitis, cervical radiculopathy and psychogenic pain. An August 30, 2004

occupational disease claim was accepted for right shoulder impingement syndrome and right
shoulder myalgia and myositis.
In a report dated February 21, 2007, an attending physician, Dr. Robert Helsten, a pain
management specialist, noted in his history that appellant had undergone a resection of her distal
right clavicle on March 2, 2006. The range of motion for the right shoulder showed the
following: 134 degrees flexion, 63 degrees extension, 55 degrees internal rotation, 70 degrees
external rotation, 22 degrees adduction and 83 degrees abduction. Dr. Helsten opined that
appellant had an 11 percent permanent impairment under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed.) for loss of range of motion and 10
percent for the distal clavicle resection. The 11 percent and 10 percent were combined under the
A.M.A., Guides for 20 percent right arm impairment.
By report dated May 11, 2007, Dr. Helsten indicated that appellant had right wrist
surgery on September 28, 2006 and left wrist surgery on December 5, 2006 for carpal tunnel
syndrome. He stated the surgeries relieved the parasthesias to the fingers. Dr. Helsten reported
appellant’s impairments were determined by wrist range of motion and he opined that she had
one percent bilateral arm impairment under the A.M.A., Guides. He submitted a June 29, 2007
report with regard to cervical radiculopathy. Dr. Helsten stated that appellant’s diagnosis most
closely fit diagnosis-related estimates (DRE) Cervical Category II under the A.M.A., Guides.1
The Office requested an Office medical adviser review the medical evidence and provide
an opinion regarding the extent of permanent impairment. In a report dated July 20, 2007, the
Office medical adviser concurred with Dr. Helsten that appellant had a 20 percent permanent
impairment to the right arm based on the reported loss of range of motion and the distal clavicle
resection. The medical adviser noted that Dr. Helsten did not provide wrist range of motion, and
the cervical spine was not a member of the body under the Federal Employees’ Compensation
Act.
Appellant submitted reports from Dr. Ed Wolski, a pain management specialist. In an
August 27, 2007 report, Dr. Wolski indicated that appellant was not able to tolerate working light
duty, and her shoulder, hand and wrist pain were being aggravated. He stated that appellant was
being taken off work due to worsening pain.
By letter dated September 14, 2007, the Office advised appellant that the medical
evidence did not establish her condition had reached maximum medical improvement, and
therefore a schedule award was not appropriate at that time. In a report dated December 20,
2007, Dr. Wolski opined that appellant had reached maximum medical improvement. The
record indicates that appellant returned to a light-duty job on December 29, 2007.
By decision dated May 6, 2008, the Office issued a schedule award for a 20 percent right
arm permanent impairment. The period of the award was 62.40 weeks commencing
December 29, 2007. The decision indicated that the award ended on October 29, 2008. By
1

Dr. Helsten also stated that he had provided a previous impairment rating on May 11, 2007 for the right elbow
and bilateral carpal tunnel syndrome of six percent. The May 11, 2007 report in the record did not discuss right
elbow impairment.

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decision dated July 11, 2008, the Office issued a corrected decision with the period of the award
ending on March 9, 2009. The percentage of impairment remained 20 percent and the period of
the award was 62.40 weeks commencing December 29, 2007.
LEGAL PRECEDENT
Section 8107 of the Act provides that, if there is permanent disability involving the loss
or loss of use of a member or function of the body, the claimant is entitled to a schedule award
for the permanent impairment of the scheduled member or function.2 Neither the Act nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3
ANALYSIS
The Office determined that appellant had a 20 percent right arm permanent impairment,
based on the February 21, 2007 report from Dr. Helsten and the Office medical adviser’s July 20,
2007 report. With respect to right shoulder loss of range of motion, the impairment is
determined in accord with the figures provided in section 16.4i of the A.M.A., Guides. One
hundred and thirty-four degrees of flexion is three percent impairment, while sixty-three degrees
of extension is zero percent impairment.4 Twenty-two degrees of adduction is one percent
impairment, eighty-three degrees of abduction results in five percent impairment.5 Finally, 55
degrees of internal rotation is two percent arm impairment, while 70 degrees of external rotation
is zero percent impairment.6 Adding these impairments for loss of range of motion results in an
11 percent right arm impairment. Under Table 16-27, a resection of the distal clavicle is 10
percent arm impairment.7 According to the A.M.A., Guides, the impairments for loss of motion
and the resection arthroplasty are combined (not added) under the Combined Values Chart.8
Combining 11 percent and 10 percent results in a 20 percent right arm permanent impairment
based on the right shoulder loss of range of motion and resection of the distal clavicle.
With respect to any additional impairment to the wrist of elbow, there is no probative
medical evidence of record. Dr. Helsten referred to a one percent wrist impairment based on loss
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

A.M.A., Guides 476, Figure 16-40.

5

Id. at 477, Figure 16-43.

6

Id. at 479, Figure 16-46.

7

Id. at 506, Table 16-27.

8

Id. at 505. The Combined Values Chart is designed to account for the effects of multiple impairments with a
summary value.

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of range of motion, but the medical evidence did not contain wrist range of motion
measurements or a detailed description of a wrist permanent impairment. Similarly, he noted
right elbow impairment, without providing a detailed explanation sufficient to establish a ratable
impairment under the A.M.A., Guides.9 As to a cervical radiculopathy, the DRE categories for
the cervical spine under Table 15-5 are not applicable under the Act.10 Neither the Act nor its
regulations provide for a schedule award for impairment to the back or to the body as a whole.
Furthermore, the back is specifically excluded from the definition of “organ” under the Act.11
The Board accordingly finds that the evidence of record does not establish more than a 20
percent right arm impairment. On appeal appellant asserts, without further explanation, that she
should be paid $2,500.00 for each percentage of impairment. It is well established that a
schedule award is paid in accord with the compensation schedule at 5 U.S.C. § 8107(c). A
claimant receives the appropriate number of weeks of compensation, based on the maximum
number of weeks for the relevant member or function of the body. For the arm, the maximum
number of weeks of compensation is 312 weeks. Since appellant’s impairment was 20 percent, she
is entitled to 20 percent of 312 weeks, or 62.40 weeks of compensation.
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from residuals of the employment injury.12 In this case,
Dr. Wolski advised that appellant had reached maximum medical improvement in a
December 20, 2007 report. The Office began the schedule award on December 29, 2007, the
date she returned to a light-duty job.13 The Board finds that the award properly ran for 62.40
weeks from December 29, 2007.
CONCLUSION
The medical evidence of record does not establish more than a 20 percent right arm
impairment.

9

To support a schedule award, the attending physician must include a detailed description of the impairment.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6(c) (March 1995).
10

Id. at 392, Table 15-5. This table provides impairments to the whole person based on cervical disorders.

11

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

12

Albert Valverde, 36 ECAB 233, 237 (1984).

13

Using this date is beneficial to appellant, since she is not entitled to both compensation for wage loss and a
schedule award during the same period. Marie J. Born, 27 ECAB 623 (1976).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2008 is affirmed.
Issued: May 11, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE ARMY,
FORT McCOY, Sparta, WI, Employer
__________________________________________

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

Docket No. 16-0471
Issued: May 16, 2016

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 January 6, 2016 appellant filed a timely appeal from a December 3, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was the November 3, 2014 decision of the Board, which became final after 30 days of
issuance and is not subject to further review.1 Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.3

1

20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8101 et seq.

3

Appellant submitted new evidence on appeal. However, the Board cannot consider this evidence as its review
of the case is limited to the evidence of record which was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c)(1); see Steven S. Saleh, 55 ECAB 169 (2003).

ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his case for
further merit review under 5 U.S.C. § 8128(a).
On appeal appellant contends that some of the decisions in his case have been based on
information supplied by the employing establishment which consisted of forgery, rumors, and
false documents, and that he wished to have his case based on medical evidence and documents
that are a matter of record.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference.4 The relevant facts are set
forth below.
Appellant, then a 46-year-old boiler fireman, sustained an injury at work on February 9,
1979 when he bumped his head against a pipe. OWCP accepted his claim for acute muscle
spasm with C5-6 radiculopathy, for which he underwent a cervical discectomy and fusion. In a
June 20, 1994 decision, it terminated appellant’s wage-loss compensation benefits under section
8106(c)(2) due to his refusal of an offer of suitable work. The termination was effective
June 18, 1994. The last merit review of the suitable work termination decision was issued by
OWCP on July 24, 1996.
On November 21, 2012 and January 25 and February 1, 2013, appellant submitted claims
for a schedule award (Forms CA-7). OWCP initially denied these claims. In an August 28, 2013
decision, however, it found that appellant had established 23 percent permanent impairment of
the right upper extremity and five percent permanent impairment of the left upper extremity.
The date of maximum medical improvement was January 2, 1990 and the schedule award would
have run from January 2, 1990 through September 5, 1991. During that same period of time,
however, appellant received wage-loss compensation for temporary total disability, and he was,
therefore, not eligible for a schedule award as it would have constituted a prohibited dual
payment. He requested a hearing, which was held before an OWCP hearing representative on
January 27, 2014. On March 13, 2014 the hearing representative affirmed the August 28, 2013
decision. Appellant subsequently appealed to the Board and, on November 3, 2014, the Board
affirmed OWCP’s March 13, 2014 decision.5
4

In Docket No. 84-725 (issued June 13, 1984), petition for recon. denied, Docket No. 84-725 (issued August 21,
1984), the Board affirmed OWCP’s finding that appellant failed to establish disability causally related to his
employment after March 12, 1979, the date he returned to his regular duties. In Docket No. 97-2794 (issued
April 24, 1988), the Board dismissed appellant’s appeal at his request. In Docket No. 06-1946 (issued July 13,
2007) and Docket No. 09-511 (issued September 4, 2009), the Board affirmed OWCP’s denials of reconsideration
regarding the suitable work termination, as appellant’s requests were untimely filed and failed to demonstrate clear
evidence of error. In Docket No. 14-1075 (issued November 3, 2014), the Board affirmed OWCP’s denial of
appellant’s claim for a schedule award, and noted that appellant was precluded from the receipt of schedule award
compensation for the period he received wage-loss compensation for disability.
5

Docket No. 14-1075 (issued November 3, 2014).

2

By letter dated September 23, 2015, and received by OWCP on October 2, 2015,
appellant requested reconsideration of both the July 24, 1996 termination decision and the
November 3, 2014 decision affirming the denial of his schedule award claim. He argued that
long ago his claim had been accepted for disability benefits, but his wage-loss compensation was
terminated effective June 1994 for refusing a job that he felt was “impossible” for him to
perform. Appellant argued that he had nerve damage in both hands and was unable to type. He
argued that the employing establishment filed forged documents and false statements and should
be held accountable for their actions. In support of his claim, appellant submitted a portion of a
job description and a December 21, 2010 note from his psychiatrist, which was previously in the
record.
By decision dated December 3, 2015, OWCP denied appellant’s request for
reconsideration without conducting a merit review. It found that the underlying issue was
whether the medical evidence of record supported that appellant was entitled to a schedule award
from January 2, 1990 through September 5, 1991. OWCP concluded that the evidence appellant
submitted with his request for reconsideration was insufficient to warrant further merit review.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.6
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.7 The one-year
period begins on the date of the original decision. A right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board.8
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.”10 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.11
6

20 C.F.R. § 10.607(a).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

9

Supra note 2.

10

20 C.F.R. § 10.606(b)(3).

11

Id. at § 10.608(b); see Norman W. Hanson, 45 ECAB 430 (1994).

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OWCP may not deny an application for review solely because the application for
reconsideration was untimely filed. When an application for reconsideration is untimely filed, it
must nevertheless undertake a limited review to determine whether the application establishes
clear evidence of error.12 OWCP regulations and procedures provide that OWCP will reopen a
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
OWCP.13
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.14 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.15 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.16 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.17 This entails a limited review by OWCP 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 OWCP.18 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 OWCP’s decision.19
ANALYSIS
OWCP terminated appellant’s wage-loss compensation, effective June 18, 1994, as
appellant had refused an offer of suitable work. The last merit review of this suitable work
termination was issued by OWCP on July 24, 1996. Subsequently, OWCP denied multiple
requests for reconsideration of this decision, finding that appellant’s requests were untimely filed
and failed to demonstrate clear evidence of error. The Board affirmed OWCP’s decisions
denying reconsideration in decisions dated April 24, 1998, July 13, 2007, and
12

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

13

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). OWCP procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
14

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

15

See Leona N. Travis, 43 ECAB 227, 240 (1991).

16

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

17

See supra note 12.

18

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

19

Leon D. Faidley, Jr., supra note 7.

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September 4, 2009.20 OWCP also denied appellant’s claims for a schedule award. The award
would have run from January 2, 1990 through September 5, 1991, and as appellant received
wage-loss compensation for temporary total disability during that same period, he was not
entitled to dual benefits. The most recent merit review of the denial of the schedule award
decision was the Board’s decision of November 3, 2014.21
By letter dated September 23, 2015, received on October 2, 2015, appellant requested
reconsideration of both the 1996 suitable work termination and the 2014 denial of his schedule
award claim. He noted that his compensation was stopped in June 1994 for not accepting a job
that was impossible for him to do. Appellant further argued that he had nerve damage in both
hands and cannot type. In support of his claim, he submitted a portion of a job description and a
December 21, 2010 note from his psychiatrist, which was previously in the record.
As the last merit decision on the schedule award claim was the Board’s November 3,
2014 decision, OWCP properly applied the standard for a timely reconsideration request, as his
request for reconsideration was received within one year of the November 3, 2014 decision.
Appellant, however, presented no relevant and pertinent new evidence not previously considered
by OWCP to demonstrate that he did not reach MMI on January 2, 1990. He also has not shown
that OWCP erroneously applied or interpreted a point of law, or made a relevant legal argument
not previously considered by OWCP. The Board, therefore, finds that OWCP properly denied
further merit review of the denial of appellant’s schedule award claim.22
With regard to appellant’s request for reconsideration of the suitable work termination, as
the request was made more than one year after the July 24, 1996 merit decision, the Board finds
that it was untimely filed. The proper standard of review for an untimely reconsideration request
is the clear evidence of error standard.
In denying appellant’s reconsideration request, OWCP did not determine that appellant’s
reconsideration request was untimely filed with regard to the July 24, 1996 suitable work
termination decision, nor did it review the request under the clear evidence of error standard.
Rather, it merely applied the standard of review for timely requests for reconsideration. As
OWCP applied the wrong standard of review to the untimely request for reconsideration of the
suitable work termination decision, the Board will set aside OWCP’s December 3, 2015 decision
in part and remand the case for it to conduct a proper review under the clear evidence of error
standard as required by regulations23 and the issuance of an appropriate decision.

20

See supra note 2.

21

Docket No. 14-1075 (issued November 3, 2014).

22

20 C.F.R. § 10.606(b)(3).

23

See 20 C.F.R. § 10.607(b). See L.D., Docket No. 15-0865 (issued October 6, 2015).

5

CONCLUSION
The Board finds that this case is affirmed with regard to appellant’s request for
reconsideration of the denial of a schedule award. The Board further finds that the case is not in
posture for decision with regard to appellant’s request for reconsideration of the suitable work
termination of his wage-loss compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 3, 2015 is affirmed in part and set aside in part and the
case is remanded for further consideration consistent with this decision.
Issued: May 16, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., claiming as widow of R.M., Appellant
and
DEPARTMENT OF THE NAVY, U.S. NAVAL
STATION, SUBIC BAY, PHILIPPINES,
Employer
__________________________________________

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Appearances:
Rodelio Mendoza, for the appellant
Office of Solicitor, for the Director

Docket No. 07-872
Issued: June 22, 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 February 13, 2007 appellant filed a timely appeal from the March 23, June 30 and
September 27, 2006 merit decisions of the Office of Workers’ Compensation Programs, which
denied her claim for death benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of appellant’s claim. The Board also has jurisdiction to review
the Office’s December 27, 2006 nonmerit decision denying reconsideration.1
ISSUES
The issues are: (1) whether appellant filed a timely claim for death benefits; and
(2) whether the Office properly denied her October 23, 2006 request for reconsideration.
1

Appellant’s designated representative, her son, advised the Board on March 20, 2007 that appellant died on
February 15, 2007. He asked the Board to allow a substitution of parties. A proper appeal having been filed and a
representative designated, the appeal may proceed to adjudication. Lorie C. Josey, 25 ECAB 85 (1973) (designated
representative of deceased appellant requested a decision by the Board); see Albert F. Kimbrell, 4 ECAB 662 (1952)
(appellant’s widow sought to be substituted as his representative for the purpose of pursuing his appeal).

FACTUAL HISTORY
On July 1, 2005 appellant filed a claim for compensation by widow.2 The employee,
born March 1, 1923, worked in various capacities for the Federal Government from 1945 to
1961. On May 31, 1961 he was separated on disability from his position as a Truck Driver
(Heavy). The employee died on December 30, 1963 from pulmonary tuberculosis.
In decisions dated March 23, June 30 and September 27, 2006, the Office denied
appellant’s claim as untimely.
On October 23, 2006 appellant, through her son and representative, requested
reconsideration. She argued that she was fully eligible and entitled to widow’s compensation
due to the federal service of her deceased husband.
In a decision dated December 27, 2006, the Office denied appellant’s request for
reconsideration. The Office found that appellant’s legal contentions were either repetitious or
irrelevant and, therefore, did not warrant a reopening of her case.
LEGAL PRECEDENT -- ISSUE 1
In cases of death occurring between December 7, 1940 and September 6, 1974, a claim
for death benefits under the Federal Employees’ Compensation Act is barred if a written claim is
not filed within five years after death. This five-year period is a maximum, mandatory provision
that neither the Office nor the Board may waive regardless of the reasons or circumstances
underlying the failure to file within the time prescribed.3
As a statute of limitation, this provision of the Act encourages diligence on the part of
claimants and tempers injustice. It prevents as a matter of public policy the investigation and
determination of stale claims where evidence might be destroyed or difficult to produce and it
puts to rest claims that would otherwise live in perpetuity.4
ANALYSIS -- ISSUE 1
When the employee died on December 30, 1963, the statute of limitation began to run.
Appellant had no more than five years, or until December 30, 1968, to file a written claim for
2

Form CA-5.

3

Mildred L. Hayley (Major Frank D. Hayley), 11 ECAB 550 (1960); see Federal (FECA) Procedure Manual,
Part 2 -- Claims, Time, Chapter 2.801.3.b(2)-(3) (March 1993); 5 U.S.C. § 768-70 (Act of September 13, 1960, Pub.
L. 86-767, Sec. 205, 74 Stat. 908).
4

See generally 100 C.J.S. Workmen’s Compensation § 436, n.13 (1958). When Congress tempered the one-year
limitation of the original Act with a conditional five-year waiver, it sought to stop the filing of many private bills and to
help those war-time employees whose circumstances made compliance impossible. S. Rep. No. 421, 79th Congress,
1st Sess. 1 (1945). Congress later eliminated the five-year waiver because its latitude often created inequity. See H.R.
Rep. No. 93-1025, 93d Congress., 2d Sess. 5 (1974); Amending Federal Employee’s Compensation Act: Hearing on
H.R. 9118 Before the Select Subcommittee on Labor of the House Comm. on Education and Labor, 93d Congress, 1st
Sess. 17 (1973) (statement of Bernard E. Delury, Assistant Secretary of Labor for Employment Standards).

2

death benefits under the Act. Because she filed her claim on July 1, 2005, well outside this fiveyear period, her claim is barred by the statute of limitation. There are no exceptions in statutes of
limitation other than those enacted by the legislatures.5 Her claim is barred as a matter of law.
The Board will, therefore, affirm the Office decisions denying appellant’s claim for
compensation by widow on the grounds that she did not file her claim within five years after the
employee’s death.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”6
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.7
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meet at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS -- ISSUE 2
Appellant’s October 23, 2006 request for reconsideration does not show that the Office
erroneously applied or interpreted a specific point of law nor does it advance a relevant legal
argument not previously considered by the Office. Further, appellant submitted no relevant and
pertinent new evidence not previously considered by the Office. She made a number of
arguments based largely on circumstances, equity and the provisions of other statutes. But as the
Board earlier explained, there is no argument that can avoid the statute of limitation. Appellant
did not file her claim by December 30, 1968.

5

Hayley, supra note 3.

6

20 C.F.R. § 10.605 (1999).

7

Id. at § 10.606.

8

Id. at § 10.608.

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Because appellant’s October 23, 2006 request for reconsideration fails to meet one of the
three standards for obtaining a merit review of her case, the Board will affirm the Office’s
December 27, 2006 decision denying that request. She is not entitled to a reopening of her case.
CONCLUSION
The Board finds that appellant’s July 1, 2005 claim for death benefits is barred by the
applicable five-year period of limitation. The Board also finds that the Office properly denied
appellant’s October 23, 2006 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 27, September 27, June 30 and
March 23, 2006 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 22, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bakersfield, CA, Employer
__________________________________________
Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1059
Issued: November 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 28, 2013 appellant, through her attorney, filed a timely appeal from the
November 8, 2012 and March 7, 2013 merit decisions of the Office of Workers’ Compensation
Programs (OWCP) denying her occupational disease claim. The Clerk of the Board assigned
Docket No. 13-1059.
The Board has duly considered the matter and finds that this case is not in posture for
decision. In a November 8, 2012 decision, OWCP denied appellant’s claim under File
No. xxxxxx797 on the grounds that she hadd not submitted any medical evidence to establish a
medical condition in connection with the claimed event and work factors.
In a November 29, 2012 letter, appellant’s attorney noted that OWCP had accepted
appellant’s claim assigned File No. xxxxxx026 for cervical and lumbar strains and other
affectations of the left shoulder region not elsewhere classified. She stated that appellant was
now claiming cervical and left shoulder degenerative disc disease, right shoulder impingement
and chronic pain syndrome under the instant claim on appeal before the Board, File No.
xxxxxx797. Counsel submitted medical reports from Dr. Pradeep K. Singh, an attending Boardcertified family practitioner, which were also submitted in File No. xxxxxx026. The Board notes
that the case record presently before the Board is limited to evidence in File No. xxxxxx797.

In an undated narrative statement submitted with counsel’s November 29, 2012 letter,
appellant described the development of pain in her neck, back, shoulders, arms and hands. She
provided a history of her employment at the employing establishment commencing November 5,
1980 and described her repetitive work duties.
By letter dated December 18, 2012, appellant, through her attorney, requested
reconsideration of OWCP’s November 8, 2012 decision and submitted a November 6, 2012
second opinion report from Dr. John F. Lawrence, a Board-certified orthopedic surgeon and
OWCP referral physician, in xxxxxx026. OWCP had referred appellant to Dr. Lawrence to
determine if she had residuals of the January 24, 2001 injury and to obtain current work
restrictions and potential for vocational rehabilitation. He opined that appellant had cervical and
lumbar strains and sprains, left shoulder impingement by history and signs and symptoms
suggestive of fibromyalgia resulting from her January 24, 2001 work injury. Appellant
continued to have residuals of this injury and total disability due to her physical restrictions.
In a February 13, 2013 letter, counsel requested that OWCP double the instant claim, File
No. xxxxxx797 with the claim assigned File No. xxxxxx026.
In a March 7, 2013 decision, OWCP denied modification of its November 8, 2012
decision. The decision noted the requirements for reopening a claim for merit review following
a reconsideration request. OWCP’s decision found that the statements from appellant and her
attorney did not establish an error in its prior decision or contain a medical diagnosis. OWCP
explained that, as appellant’s November 29, 2012 statement was the same information received
under another compensation claim and her attorney’s December 18, 2012 and February 13, 2013
statements indicated that she had provided a copy of a second opinion medical report that was
also received in that same compensation claim, she did not establish her entitlement to
compensation based on an occupational disease claim under File No. xxxxxx797.
The record forwarded to the Board includes evidence suggesting that a prior claim was
accepted for cervical and left shoulder injuries in File No. xxxxxx026 and it is currently under
development for possible vocational rehabilitation. OWCP procedures provide that cases should
be doubled when a new injury is reported for an employee who previously filed an injury claim
for a similar condition and further indicates that the cases should be doubled as soon as the need
to do so becomes apparent.1 On remand, it should combine the present case record, File No.
xxxxxx797, with File No. xxxxxx026. After combining these two case records, OWCP should
consider the evidence contained in the combined case record and, following any necessary
further development, issue a de novo decision regarding whether appellant has established that
she sustained an injury caused or aggravated by factors of her employment.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000).

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 7, 2013 and November 8, 2012 are set aside and the case
remanded for further proceedings consistent with this order of the Board.
Issued: November 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 14-555
Issued: May 19, 2014

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 January 13, 2014 appellant filed a timely appeal from an August 19, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as untimely filed and failing to demonstrate clear evidence of error. Because
more than 180 days elapsed from the most recent merit decision dated July 9, 2012 to the filing
of this appeal, the Board lacks jurisdiction to review the merits of her claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 15, 2012 appellant, then a 49-year-old letter carrier, filed an occupational
disease claim alleging a postsurgical aggravation or acceleration of degenerative disc disease and
aggravation of osteopenia due to her employment duties of repetitious lifting, bending and
carrying mail. She first became aware of her condition on September 12, 2011 and first related it
to her employment on that date.
Appellant submitted a narrative statement dated February 15, 2012, noting that her back
pain began in 2004. She underwent back surgery in March 2009 and returned to full duty after
90 days. Appellant’s work required repetitive lifting and bending while handling mail. Her back
pain returned six to eight months after surgery and, in 2011, she developed stabbing pain in both
legs which increased with the Christmas holiday. On January 9, 2012 appellant woke up with
back pain and stabbing pain in her left leg.
In a letter dated June 5, 2012, OWCP requested that appellant provide additional
evidence in support of her claim including a detailed report from a physician. Appellant
submitted a January 19, 2012 report from Dr. Kenneth J. Rich, a Board-certified neurosurgeon,
who reviewed a magnetic resonance imaging (MRI) scan and found that L1-2 was the worse
disc. Dr. Rich recommended conservative treatment and trigger point injections. Appellant also
submitted medical records regarding her March 20, 2009 surgery and treatment.
By decision dated July 9, 2012, OWCP denied appellant’s claim. It found insufficient
medical evidence to establish a causal relationship between her back condition and her
employment.
In a letter dated July 8, 2013, appellant requested reconsideration. OWCP received this
request on July 11, 2013. Appellant submitted a July 1, 2013 report from Dr. Andrew Drabick, a
Board-certified family practitioner, who first examined appellant on January 23, 2013 and
diagnosed multilevel lumbar degenerative disc disease for which she underwent surgery at L2-3
and L3-4 on March 20, 2009. Dr. Drabick noted that in the summer of 2011 appellant began
having episodes of low back pain which worsened in early 2012. He reviewed her MRI scan
which demonstrated bulging discs at L3-4 and L4-5. Dr. Drabick stated that appellant’s work at
the employing establishment involved sitting and repetitive lifting of more than 20 pounds which
contributed to her underlying lumbar degenerative disc disease. He found that appellant was
partially disabled and provided work restrictions. Appellant also submitted treatment notes from
Dr. Drabick dated June 6 and 25, 2013. Dr. Drabick diagnosed back pain with radiation and
lumbosacral degenerative disc disease. Appellant submitted a January 16, 2012 MRI scan which
demonstrated a small disc herniation at L2-3 due to scar tissue.
By decision dated August 19, 2013, OWCP declined to reopen appellant’s claim for
reconsideration of the merits. It found that her request for reconsideration was received on
July 11, 2013, more than one year after the July 9, 2012 merit decision. OWCP further found
that appellant failed to establish clear evidence of error on the part of OWCP.

2

LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review on
the merits, on its own motion or on application by the claimant. It must exercise this discretion in
accordance with section 10.607 of the implementing federal regulations. Effective August 29,
2011, section 10.607(a) provides that, “An application for reconsideration must be received by
OWCP within one year of the date of OWCP’s decision for which review is sought.”3 In Leon D.
Faidley, Jr.,4 the Board held that the imposition of the one-year time limitation for filing an
application for review was not an abuse of the discretionary authority granted OWCP under section
8128(a) of FECA. The one-year time limitation period set forth in 20 C.F.R. § 10.607 does not
restrict OWCP from performing a limited review of any evidence submitted by a claimant with an
untimely application for reconsideration. OWCP is required to perform a limited review of the
evidence submitted with an untimely application for review to determine whether a claimant has
submitted clear evidence of error on the part of OWCP thereby requiring merit review of the
claimant’s case.
If a request for reconsideration is made after more than one year has elapsed from the
issuance of the decision, the claimant may only obtain a merit review if the application for review
demonstrates clear evidence of error on the part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by OWCP 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 OWCP.10 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
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

6

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

7

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

8

See Jesus D. Sanchez, supra note 5.

9

See supra note 7.

10

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

3

fundamental question as to the correctness of OWCP’s decision.11 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the part
of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.12
ANALYSIS
The only decision before the Board is the August 19, 2013 OWCP decision which declined
to reopen appellant’s case on the merits because the request was not timely filed, and did not show
clear evidence of error. Since more than 180 days elapsed from the date of issuance of OWCP’s
July 9, 2012 merit decision to the filing of appellant’s appeal, on January 13, 2014, the Board lacks
jurisdiction to review that decision.13 The Board finds that refusal of OWCP to reopen appellant’s
claim for further reconsideration of the merits was proper and did not constitute an abuse of
discretion.
Appellant’s request for reconsideration was received by OWCP on July 11, 2013 more than
one year after the July 9, 2012 merit decision. Her request was therefore untimely as it was not
received within one year of the July 9, 2012 decision. As the request for reconsideration was not
timely, the evidence submitted must be evaluated under the clear evidence of error standard.
Appellant submitted medical evidence from Dr. Drabick addressing her ongoing back
condition. Dr. Drabick advised that appellant’s employment duties aggravated her underlying
degenerative disc disease. He stated that sitting and repetitive lifting of more than 20 pounds
contributed to exacerbating her underlying lumbar degenerative disc disease. While these
reports provide support for appellant’s claim of an occupational aggravation of her underlying
degenerative disc disease, the medical evidence is not sufficient to meet the clear evidence of
error standard. The term “clear evidence of error” is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made a mistake. For
example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the
augmented rate. Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

11

Leon D. Faidley, Jr., supra note 4.

12

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458, 466 (1990).

13

See 20 C.F.R. § 501.3(e).

14

Dean D. Beets, 43 ECAB 1153 (1992); supra note 7. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.5(a) (March 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
TENNESSEE VALLEY AUTHORITY, YARD
OPERATIONS, Chattanooga, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1291
Issued: January 18, 2012

Case Submitted on the Record

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

JURISDICTION
On April 25, 2011 appellant filed a timely appeal from a December 20, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
hearing loss in the performance of duty.
FACTUAL HISTORY
On September 17, 2010 appellant, then a 57-year-old conveyor operator, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss as a result of
employment-related noise exposure. He first became aware of his illness and of its relationship
1

5 U.S.C. § 8101, et seq.

to his employment on January 3, 2009. Appellant was last exposed to the employment condition
on January 2, 2009 when he retired. He notified his employer on September 23, 2010.
By letter dated October 1, 2010, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment and all nonoccupational exposure to noise. OWCP also requested that he provide
medical documentation pertaining to any prior treatment he received for ear or hearing problems.
It requested that the employing establishment provide noise survey reports for each site where
appellant worked, the sources and period of noise exposure for each location and whether
appellant wore ear protection.
On November 2, 2010 appellant responded to OWCP’s questionnaire noting that he was
last exposed to hazardous noise on January 2, 2009, his final day of employment. He reported
that he had not filed any other prior hearing loss claims or partaken in any hobbies which
exposed him to loud noise.
Appellant noted that from 1973 to 1976 he was in the army and worked at the Tennessee
Valley Authority (TVA) as a beltline operator from 1977 to 2009 where he was exposed to loud
noise for 8 to 12 hours a day, approximately five to seven days a week. He noted that hearing
protection was not issued until after 1985 at the Colbert Steam Plant.
By letter dated November 9, 2010, the employing establishment reported that appellant
worked as a conveyor dumper operator from February 12, 2001 until his retirement on
January 2, 2009. Noise exposures for a conveyor dumper operator ranged from 76 to 93 decibels
(dBA) measured on the A-scale over a period of seven to eight hours a day. The employing
establishment noted that hearing protection was provided throughout the course of appellant’s
employment and that occupational hearing loss was not an expected outcome of employment at
TVA.
A job history summary was submitted for the period February 8, 1985 to May 3, 2010
which noted appellant’s TVA appointments and department information.
Appellant submitted a history of audiograms dated February 11, 1977 to May 13, 2008.
In a January 11, 2000 audiogram report, his physician reported that his right and left ear test
results were normal.
In a May 9, 2006 medical examination, appellant’s physician reported that he had
bilateral hearing loss.
On November 22, 2010 OWCP referred appellant to Dr. Jack W. Aland, a Board-certified
otolaryngologist, for a second opinion evaluation. It prepared a statement of accepted facts
addressing his federal work history from 1977 to 2009. OWCP noted that the employing
establishment provided no noise exposure data on appellant’s positions from February 14, 1977
to February 11, 2001. It reported that he worked for TVA as a conveyor dump operator from
February 12, 2001 to January 2, 2009. Noise exposure ranged from 76 to 93 dBA over a period
of seven to eight hours a day and hearing protection was provided.

2

On December 13, 2010 appellant was examined by Dr. Aland. In his report, Dr. Aland
stated that appellant’s hearing was normal in both ears at the time he was initially exposed to
noise from his federal employment and steadily declined over the years while working for TVA.
He noted that appellant worked for TVA from 1977 to 2009 on multiple jobs which generally
involved heavy equipment construction. Dr. Aland further noted that appellant worked as a
laborer from 2001 to 2009 and was exposed to the noise of a jackhammer, as well as explosions
for a period of time. He reported that appellant’s workplace exposure was sufficient as to
intensity and duration to have caused the hearing loss in question. Audiometric testing revealed
auditory discrimination scores of 100 percent in the right ear and 96 percent in the left ear.
Dr. Aland noted that there was no noise notch and found mild-to-moderate neurosensory hearing
loss rather flat in the lower frequency and then dropping off at the highest frequency. He
diagnosed bilateral neurosensory hearing loss. Dr. Aland opined that, because the pattern of the
hearing loss was worse in the high frequencies in the absence of a noise notch, coupled with the
mild level of hearing loss, most likely appellant’s hearing loss was due to presbycusis rather than
noise exposure.
By decision dated December 20, 2010, OWCP found that the evidence failed to establish
that appellant’s hearing loss was causally related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

3

a causal relationship.5 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6
Appellant has the burden of establishing by weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.7 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.8
Although, appellant must prove the facts alleged, proceedings under FECA are not
adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden to
establish his or her claim, OWCP also has a responsibility in the development of the evidence.9
ANALYSIS
There is no dispute that appellant was exposed to loud noise during his career at TVA.
The issue is whether such exposure caused his diagnosed hearing loss. The Board finds that this
case is not in posture for decision.
OWCP referred appellant to Dr. Aland, a Board-certified otolaryngologist, for a second
opinion evaluation.10 Dr. Aland diagnosed bilateral neurosensory hearing loss, noting that
appellant’s hearing was initially normal in both ears and steadily declined over the years while
working for TVA. He acknowledged that appellant worked for TVA from 1977 to 2009 on
multiple jobs which generally involved heavy equipment construction, that his employment as a
laborer from 2001 to 2009 exposed him to the noise of a jackhammer as well as explosions, and
that his workplace exposure was sufficient as to intensity and duration to have caused the hearing
loss in question. Dr. Aland noted, however, that, because the pattern of the hearing loss was
5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

Stanley K. Takahaski, 35 ECAB 1065 (1984).

8

See John W. Butler, 39 ECAB 852, 858 (1988).

9

See Claudia A. Dixon, 47 ECAB 168 (1995).

10

In support of his claim for an employment-related hearing loss, appellant submitted a history of audiograms
dated February 11, 1977 to May 13, 2008. This evidence did not meet OWCP’s criteria to establish an employmentrelated loss of hearing because the audiograms were not certified by a physician as being accurate. OWCP does not
have to review every uncertified audiogram, which has not been prepared in connection with an examination by a
medical specialist. Robert E. Cullison, 55 ECAB 570 (2004).

4

worse in the high frequencies in the absence of a noise notch, coupled with the mild level of
hearing loss, most likely appellant’s hearing loss was due to presbycusis rather than noise
exposure.
Dr. Aland stated that appellant’s hearing loss was “most likely” due to presbycusis rather
than noise exposure. His opinion regarding the cause of appellant’s hearing loss is speculative
and equivocal in nature and of diminished probative value.11 Dr. Aland failed to provide a fullyrationalized medical opinion. He agreed that the workplace exposure was sufficient as to
intensity and duration to have caused appellant’s hearing loss, noting that appellant was exposed
to the noise of a jackhammer and explosions during his employment as a laborer from 2001 to
2009. Dr. Aland did not adequately explain why, in light of established noise exposure,
appellant’s hearing loss was due to presbycusis.12 Or, to phrase the question differently, why the
occupational noise exposure apparently had no effect on appellant’s hearing. The Board has held
that a medical opinion not fortified by rationale is of limited probative value.13
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.14 When OWCP selects a physician for an
opinion on causal relationship, it has an obligation to secure, if necessary, clarification of the
physician’s report and to have a proper evaluation made.15 Because it referred appellant to a
second opinion physician, it has the responsibility to obtain a report that will resolve the issue of
whether his hearing loss was caused by his federal employment.16 Because Dr. Aland’s opinion
is equivocal and does not provide a rationalized opinion on the cause of appellant’s hearing loss,
OWCP should not have relied upon his opinion as a basis for denying appellant’s claim for
compensation.
Accordingly, the case will be remanded to OWCP for further development of the medical
evidence.17 On remand, OWCP should ask Dr. Aland to clarify his opinion.18 Following this
and any other further development deemed necessary, OWCP shall issue an appropriate merit
decision on appellant’s occupational disease claim.

11

Michael R. Shaffer, 55 ECAB 386 (2004).

12

Presbycusis is defined as progressive bilaterally symmetrical perceptive hearing loss occurring with advancing
age. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 27th edition (1988).
13

A.D., 58 ECAB 149 (2006).

14

P.K., Docket No. 08-2551 (issued June 2, 2009).

15

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

16

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

17

S.E., Docket 08-2243 (issued July 20, 2009).

18

When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper
evaluation. Leonard Gray, 25 ECAB 147, 151 (1974).

5

CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
developed bilateral neurosensory hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 20, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: January 18, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6