United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Barnegat, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1394
Issued: July 26, 2021

Case Submitted on the Record

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

JURISDICTION
On July 7, 2020 appellant, through counsel, filed a timely appeal from a June 2, 2020 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 a right shoulder
condition causally related to the accepted December 10, 2015 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On March 1, 2016 appellant, then a 57-year-old rural letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 10, 2015 she sustained a right rotator cuff tear when
she slipped and stumbled on a rocky walkway while in the performance of duty. She indicated
that the injury occurred when she returned to her long life vehicle (LLV) and that, when her
shoulder jerked to break her fall, she felt immediate severe pain. Appellant did not stop work.
In a December 11, 2015 report, Dr. Nagalakshmi Shetty, Board-certified in rheumatology
and internal medicine, related that on December 7, 2015 appellant experienced a sudden jerking
movement to her right shoulder. This pain resolved with icing the right shoulder. Dr. Shetty
further reported that appellant experienced another “jerky jolt” to her right shoulder on
December 10, 2015 when, while delivering mail, appellant stumbled on rocks and caught herself
from falling. This time the pain was severe. Dr. Shetty diagnosed right shoulder degenerative
arthritis, right shoulder pain, and primary osteoarthritis of both first carpometacarpal joints.
In reports dated December 14, 2015 and February 2, 2016, Dr. Rosemarie DeSantis, a
Board-certified rheumatologist, noted a history of the December 10, 2015 employment incident
and diagnosed primary osteoarthritis of the right shoulder and primary osteoarthritis of the hands.
In her February 2, 2016 report, she also diagnosed a tear of the right rotator cuff.
In a February 22, 2016 report, Dr. Nicholas Jarmon, a Board-certified orthopedic surgeon,
related that appellant had immediate onset of right shoulder pain while at work on December 10,
2015 when she fell and caught herself. He provided an assessment of full-thickness rotator cuff
tear and recommended surgery. Dr. Jarmon indicated that the tear appeared to be acute in nature
as there was no significant muscle atrophy and appellant denied a history of prior trauma. In a
March 7, 2016 report, he opined that the tear was causally related to her work as it had occurred
at work. In a March 11, 20164 attending physician’s report (Form CA-20), Dr. Jarmon checked a

3

Docket No. 18-1209 (issued March 7, 2019).

4
The date of the report appears to be incorrect as it refers to appellant’s rotator cuff repair which took place
March 17, 2016.

2

box marked “Yes,” indicating that appellant’s status post tear of the supraspinatus repair was
causally related to the December 10, 2015 employment incident.
On March 17, 2016 Dr. Jarmon performed a right shoulder arthroscopic labral
debridement, biceps tenotomy, and arthroscopic supraspinatus repair. Postsurgical progress
reports and duty status reports (Form CA-17) from him were also received.
In a development letter dated May 9, 2016, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional medical evidence needed and afforded her 30
days to respond.
In response, OWCP received appellant’s May 26, 2016 statement wherein she reiterated
the details of the claimed December 10, 2015 employment incident. It also received additional
treatment notes and Form CA-17 reports from Dr. Jarmon.
By decision dated June 15, 2016, OWCP denied appellant’s claim, finding that the medical
evidence submitted did not contain a comprehensive medical opinion which established that the
diagnosed conditions were causally related to the accepted December 10, 2015 employment
incident.
On July 12, 2016 appellant, through counsel, requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In a June 29, 2016 report, Dr. Jarmon noted that on December 10, 2015 appellant was
returning to her LLV after delivering parcels when she stumbled on a rocky path and caught her
balance with her right arm. Appellant experienced an immediate onset of pain, but continued on
her route, relying on her left shoulder. She denied a history of prior injury to the right shoulder.
Dr. Jarmon indicated that appellant’s February 10, 2016 right shoulder magnetic resonance
imaging (MRI) scan revealed a full-thickness tear of the supraspinatus, for which the March 17,
2016 surgery was performed. With regard to medical causality, he opined that the mechanism of
injury described by her could cause a full-thickness rotator cuff tear. Dr. Jarmon explained that
the timing of appellant’s symptoms coincided with the timing of the injury. Also, the fact that
there was no significant muscle atrophy appreciable on the MRI scan suggested that it was an
acute, not a chronic, tear.
By decision dated December 5, 2016, the hearing representative affirmed the June 15, 2016
decision denying appellant’s claim.
On May 23, 2017 appellant, through counsel, requested reconsideration.
Additional reports were submitted to OWCP. In the January 16, 2017 report, Dr. Jarmon
related appellant’s description of the employment incident. Dr. Jarmon related that as she was
walking back to her vehicle she lost her balance and was able to regain her balance by moving her
arms around and kind of catching herself in mid-air, without grabbing unto anything, which is
when the pain started. He concluded that this was a reasonable mechanism to cause a full-thickness
cuff tear. In the February 16, 2017 report, Dr. Jarmon related that, when appellant moved her arms
around to regain her balance, the movement caused or increased sudden stress at the tendon-bone
interface of the rotator cuff attachment. He further concluded that, if enough force was seen at
3

that interface, it could potentially cause a tear based on the strength of the contracture of the rotator
cuff. In the March 27, 2017 report, Dr. Jarmon continued to opine that the injury was related to
the mechanism of injury appellant described.
By decision dated February 16, 2018, OWCP denied modification of its December 5, 2016
decision.
On May 29, 2018 appellant, through counsel, filed a timely appeal with the Board. By
decision dated March 7, 2019,5 the Board affirmed OWCP’s February 16, 2018 decision, finding
that she had not met her burden of proof to establish her claim. The Board found that there was
no rationalized medical evidence of record to support that the right rotator cuff tear was causally
related to the accepted December 10, 2015 employment incident. The Board noted that Dr. Jarmon
had generally supported causal relationship between the accepted December 10, 2015 employment
incident and appellant’s rotator cuff tear, however, his opinion was couched in speculative terms.
On March 9, 2020 appellant, through counsel, requested reconsideration on an appeal
request form dated March 2, 2020. Counsel indicated that reconsideration was based on relevant
new evidence consisting of a May 20, 2019 report by a Dr. Arthur Becan, a Board-certified
orthopedic surgeon, and an October 9, 2019 report by Dr. David Weiss, an osteopath Boardcertified in orthopedic surgery.
In a May 20, 2019 report, Dr. Weiss opined that appellant reached maximum medical
improvement on May 20, 2018 and that she had seven percent permanent impairment of the right
upper extremity under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides).6 He noted the history of the
December 10, 2015 employment incident and his review of her medical records. Dr. Weiss noted
that, prior to this injury, appellant denied any right shoulder pain or any restrictions in her activities
of daily living. With regard to causation, he opined that that the cause of her disability was the
work-related injury of December 10, 2015.
In an October 9, 2019 report, Dr. Weiss again noted the history of the December 10, 2015
employment injury and his review of appellant’s medical records. He reported that her past
medical history was unremarkable with no previous right shoulder injury. Dr. Weiss noted that
medical literature indicated that the pathophysiology of shoulder tendinopathy, impingement, and
rotator cuff tears was multifactorial with both patient and work-related factors acting
concomitantly to reproduce shoulder tendinopathy. He also noted that such medical literature also
revealed that awkward postures revealed strong evidence in terms of occupational risk factors for
shoulder tendinopathy and rotator cuff tears. Based on the history provided, Dr. Weiss concluded
that the jerking of appellant’s right shoulder due to the trip caused the shoulder to be placed in an
awkward position which led to the rotator cuff tear and labral injury. He further opined that the

5

Supra note 3.

6

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

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claimed December 10, 2015 injury also aggravated the preexisting quiescent osteoarthritis of the
right shoulder.
By decision dated March 12, 2020, OWCP found that the March 2, 2020 reconsideration
request, which OWCP received on March 9, 2020, was untimely filed and failed to demonstrate
clear evidence of error.
On April 2, 2020 appellant, through counsel, requested that OWCP set aside OWCP’s
March 12, 2020 decision on procedural grounds as the reconsideration request was timely filed.
In a May 26, 2020 letter, OWCP advised that appellant’s March 2, 2020 reconsideration
request, which was received on March 9, 2020, was in fact timely filed. It found that because the
one-year period for filing reconsideration of the March 7, 2020 decision had expired on March 8,
2020, a Sunday, she had until March 9, 2020 to timely request reconsideration. Thus, OWCP
indicated that OWCP would proceed with a merit review of the case.
By decision dated June 2, 2020, OWCP denied modification of the March 7, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish 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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury.9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.10 The opinion of
the physician must be based on a complete and accurate factual and medical background, must be
7

Supra note 2.

8

C.K., Docket No. 18-1286 (issued April 20, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143, 1145 (1989).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).

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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.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted December 10, 2015 employment incident.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s February 16, 2018 merit decision. The Board
considered that evidence in its March 7, 2019 decision and found that it was insufficient to
establish a right rotator cuff tear causally related to the accepted December 10, 2015 employment
incident. Findings made in prior Board decisions are res judicata absent further review by OWCP
under section 8128 of FECA.13
With appellant’s March 2, 2020 reconsideration request, OWCP received two reports from
Dr. Weiss dated May 20 and October 9, 2019 in which he described her right shoulder condition
and treatment. In both reports, Dr. Weiss noted an unremarkable medical history with no prior
right shoulder injuries. However, the record reflects that appellant had an earlier incident on
December 7, 2015 when she experienced a sudden jerking movement to her right shoulder which
caused pain, which reflects that she had a preexisting right shoulder condition. Thus, Dr. Weiss’
opinions on causation are of diminished probative value as they are not based on a complete and
accurate factual and medical history.14 Additionally, as noted above, in any case where a
preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the medical evidence
must provide a rationalized medical opinion that differentiates between the effects of the workrelated injury or disease and the preexisting condition.15
While Dr. Weiss offered an explanation, in his October 9, 2019 report, that the jerking
motion of the right shoulder on December 10, 2015 due to tripping caused the shoulder to be placed
in an awkward positon which led to the rotator cuff tear and an aggravation of the right shoulder
osteoarthritis, he did not specifically differentiate between appellant’s preexisting condition and
11

R.G., supra note 8.

12
P.L., Docket No. 19-1750 (issued March 26, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013); see Charles W. Downey, 54 ECAB 421 (2003).
13

J.S., Docket No. 19-0022 (issued November 4, 2020); C.D., Docket No. 19-1973 (issued May 21, 2020); M.D.,
Docket No. 20-0007 (issued May 13, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
14

See J.S., Docket No. 19-1035 (issued January 24, 2020).

15

Supra note 12.

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the effects of the accepted December 10, 2015 employment incident, or explain how her the
accepted December 10, 2015 employment incident aggravated her preexisting condition.16 Thus,
his reports are of limited probative value and are insufficient to establish causal relationship.17
The Board finds that these additional reports from Dr. Weiss described the mechanism of
the employment incident, but did not provide a rationalized medical explanation as to how the
awkward placement of appellant’s shoulder physiologically caused a right shoulder rotator cuff
tear, given the history of her prior injury and preexisting right shoulder conditions. To be of
probative medical value, a medical opinion must explain how, physiologically, the mechanism of
injury was sufficient to have caused or contributed to the diagnosed conditions.18 As appellant has
not submitted rationalized medical evidence sufficient to establish causal relationship, the Board
finds that she has not met her burden of proof.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted December 10, 2015 employment incident.

16

See H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).

17

Id.

18

K.D., Docket No. 19-1405 (issued April 9, 2020); A.W., Docket No. 19-0327 (issued July 19, 2019).

19

C.K., supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the June 2, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 26, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, 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
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1746
Issued: May 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 21, 2010 appellant, through his representative, filed a timely appeal of an
April 13, 2010 merit decision of the Office of Workers’ Compensation Programs. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in the amount of
$14,539.11 for the period September 1, 2007 to January 19, 2009; and (2) whether the Office
properly denied waiver of the recovery of the overpayment.
On appeal, counsel argued that appellant’s monthly Veterans Administration benefits had
decreased and repayment of the overpayment would result in financial hardship.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 2, 2006 appellant, then a 47-year-old part-time flexible carrier, filed a
traumatic injury claim alleging that he developed a right knee condition walking in the
performance of duty on that date. He reported that he underwent knee surgery in 1983 while in
the army. Appellant indicated that his route changed in 2006 and required more walking. He
stated that he was able to work with knee pain in October and November 2006, but on
December 2, 2006, he sustained a sharp pain in his knee which became unbearable.
Dr. William S. Ogden, a Board-certified orthopedic surgeon, opined that appellant required a
total knee replacement on December 2, 2006. On May 4, 2007 he stated that appellant’s
employment duties contributed to his knee condition. The Office accepted appellant’s claim for
temporary aggravation of localized primary osteoarthritis of the right knee on May 22, 2007. It
authorized compensation benefits for December 2, 2006 through May 4, 2007 in the amount of
$2,854.27.
The Department of Veterans Affairs (VA) authorized right knee surgery and Dr. Jonathan
Snyder, a Board-certified orthopedic surgeon, performed a right total knee arthroplasty on
August 29, 2007. The Office approved this surgery on October 18, 2007.
In a letter dated December 20, 2007, the Office requested information from the VA
regarding appellant’s VA disability benefits.
Appellant completed a Form EN1032 on January 17, 2008 and indicated that his VA
benefits had not increased. He returned to work on January 22, 2008 and the Office ended his
compensation benefits effective that date. Appellant informed it that his VA benefits increased
to 100 percent in October 2007 after his surgery and would remain at 100 percent for 12 months.
By letter dated March 21, 2008, the VA informed the Office that appellant was entitled to
compensation at the rate of $2,655.00 a month from December 1, 2007.
Appellant completed a Form EN1032 on January 17, 2008 and stated that his VA benefits
increased temporarily on August 30, 2007 through September 2008 due to the total right knee
replacement. In a letter dated September 19, 2007, the VA informed him of his compensation
rate indicating that on September 1, 2007 he received $2,933.00, on September 19, 2007
$2,711.00, on August 11, 2008 $2,610.00 and on October 1, 2008 $556.00. The VA indicated
that appellant’s 100 percent disability was due to the right total knee arthroplasty and that he had
additional compensation for spondylolisthesis L5-S1 at 20 percent.
In a letter dated October 20, 2008, appellant stated that he required additional knee
surgery on September 9, 2008 from the VA. On September 9, 2008 Dr. Richard Mather, a
Board-certified orthopedic surgeon, performed a revision of right total knee arthroplasty due to
dislocating patella and incompetent medial collateral ligament. The Office approved this surgery
on November 7, 2008 and the resulting recurrence of disability. By letter dated November 10,
2008, it informed appellant that he must elect between VA and Office benefits due to his
accepted knee injury and resulting surgery.

2

In a letter dated November 10, 2008, the Office informed appellant that he was not
entitled to dual benefits for an injury and that an increase in a veteran’s service-connected
disability brought about by an injury sustained while a federal employee was considered a dual
payment. It requested that he make an election and noted that he had received an overpayment
of compensation. The Office also requested appellant’s most recent rating from the VA due to
his additional surgery on September 9, 2008. Appellant elected to receive VA benefits in a letter
dated January 8, 2009. By letter dated January 20, 2009, the Office informed the VA that
compensation payments in the amount of $14,539.11 had been made to appellant and requested
deductions from future benefits until this amount was repaid.
The record contains
documentations supporting the Office’s calculation that appellant received compensation
benefits totaling $14,539.11 from September 1, 2007 through January 19, 2009 while receiving
dual benefits from the VA.
On July 20, 2009 the Office made a preliminary determination that appellant had received
an overpayment of compensation in the amount of $14,539.11 for the period September 1, 2007
through January 19, 2009 because he received dual benefits from the Office and the VA during
this period. It found that he was not at fault in the creation of the overpayment and requested
financial information in support of a request for waiver. Appellant requested a prerecoupment
hearing on August 23, 2009. He completed an overpayment recovery questionnaire on
August 23, 2009 indicating his monthly income included social security benefits in the amount
of $1,674.00, VA benefits of $2,940.00, spouse’s earnings of $700.00 and his 24-year-old
daughter’s earnings of $850.00 as well as OPM retirement of $1,728.20 for a household income
of $7,892.20. Appellant stated that his rent was $995.00, his food expenses $875.00, clothing
expenses of $100.00 and utilities of $275.00 as well as other expenses of $825.00. He indicated
that he had car payments of $542.75 and $483.50 as well as credit card debt with monthly
payments totaling $249.00 and his 24-year-old-daughter’s monthly payments of $960.00 for total
monthly expenses of $5,305.25. Appellant indicated that he had savings accounts totaling
$2,171.12. He also submitted his tax return for 2008, student loan information, car tax receipt
and other bills.
Appellant testified at the oral hearing on December 10, 2009 and stated that he no longer
received 100 percent disability from the VA receiving instead receiving $890.00 a month. He
stated that his VA benefits were based on 30 percent for his knee and additional percentages for
other accepted conditions. Appellant also stated that his wife’s income was variable between
$400.00 to $1,400.00 a month. He also testified that his savings accounts had been reduced to
$832.00.
By decision dated April 13, 2010, an Office hearing representative affirmed the Office’s
July 29, 2009 preliminary decision finding that appellant had received dual Veterans
Administration and Office benefits for the period September 1, 2007 through January 19, 2009 in
the amount of $14,539.11. The Office hearing representative found that appellant was without
fault in the creation of the overpayment and that the overpayment was not subject to waiver as he
established monthly income of $7,892.20 exceeded his monthly expenses of $5,305.25 by
$2,586.95 a month. The Office hearing representative found that based on the financial
information submitted appellant could afford to repay the overpayment, that he had not provided
additional financial documentation to support the change in income and that he could make
payments of $400.00 a month to allow the Office to recover the overpayment.

3

LEGAL PRECEDENT -- ISSUE 1
The Act provides certain limitations on the right to receive compensation.2 Section 8102
of the Act3 provides that the United States shall pay compensation for the disability of an
employee resulting from personal injury sustained while in the performance of duty.4 Generally,
the Act beneficiary may receive compensation concurrently with other benefits administered by
the VA,5 but there is a limitation imposed under the Act when the VA benefits are payable for
the same injury or the same death for which the Office is paying compensation.6 The prohibition
against dual payment of the Act and VA benefits applies to those cases where the disability or
death of an employee has resulted from an injury sustained in federal civilian employment and
the VA has held that the same disability or death was service connected.7 The prohibition also
extends to an increase in a VA service-connected disability award, where the increase is brought
about by an injury sustained while in federal civilian employment.8 An example of this latter
scenario is where an employee is receiving benefits from the VA for 50 percent disability due to
a service-connected condition, and has a civilian employment injury which causes a disabling
aggravation of the preexisting condition. The Office determines that the employee has a total
loss of wage-earning capacity due to the accepted condition, and subsequent to the employment
injury, VA increases its award to 100 percent as a result of the aggravation by the civilian
employment injury.9 In this example an election of benefits is required. The election will be
between the amount of entitlement under the Act plus the amount received from the VA for 50
percent disability prior to the civilian employment injury, on the one hand, and the total amount
of entitlement from the VA for 100 percent disability, on the other hand.10 No election is
required between the VA benefit the employee was receiving at the time of the civilian
employment injury and the Act benefits to which the employee is entitled for the civilian
employment injury because these benefits are not payable for the same injury.11 When the VA
increased its benefits an election was required because the increased benefits were payable for
the same employment injury which formed the basis of entitlement to the Act benefits.12
2

See id. at § 8116; Kelvin L. Davis, 56 ECAB 404, 407-09 (2005).

3

Id. at §§ 8101-8193.

4

Id. at § 8102.

5

Id. at § 8116(a)(3).

6

Id.

7

J.C., Docket No. 09-2096 (issued May 6, 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual
Benefits, Chapter 2.1000.8b(1) (December 1997).
8

Id. at Chapter 2.1000.8b(2).

9

Id.

10

Id.

11

Id.

12

Id.

4

ANALYSIS -- ISSUE 1
Appellant elected to receive VA benefits in lieu of wage-loss compensation under the Act
effective September 1, 2007, the date his VA benefits increased to 100 percent. Any wage-loss
compensation he received from that date forward constitutes an overpayment of compensation.
The record shows that the Office continued to pay appellant until January 19, 2008, thus he
received an overpayment.
With respect to the amount of the overpayment, the Office found that appellant had
received $14,539.11 in compensation benefits for the period September 1, 2007 through
January 19, 2009. Appellant has not disputed the amount. Therefore the Board finds that he has
received an overpayment in the amount of $14,539.11 as he received dual benefits from the VA
and the Office for the period in question.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that, when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.13 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for the
Office to waive the overpayment. The Office must exercise it discretion to determine whether
recovery of the overpayment would “defeat the purpose of the Act or would be against equity
and good conscience,” pursuant to the guidelines provided in the implementing federal
regulations.
Section 10.436 of the implementing regulations14 provide that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause hardship to a currently
or formerly entitled beneficiary such that: (a) the beneficiary from whom the Office seeks
recovery needs substantially all of his current income, including compensation benefits, to meet
current ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed the
resource base of $4,800.00 for an individual.15 An individual is deemed to need substantially all
of his or her current income to meet current ordinary and necessary living expenses if monthly
income does not exceed monthly expenses by more than $50.00. In other words, the amount of
13

5 U.S.C. § 8129(a).

14

20 C.F.R. § 10.436.

15

Id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).

5

monthly funds available for debt repayment is the difference between current income and
adjusted living expenses ( i.e., ordinary and necessary living expenses plus $50.00).16
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.17 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.18
ANALYSIS -- ISSUE 2
The Office found that appellant was without fault in the creation of the overpayment, but
the hearing representative denied waiver of the overpayment. Appellant has submitted financial
information and testimony listing his monthly income as between $8,592.0019 and $5,542.0020 a
month. At the oral hearing, he testified that his wife’s monthly earnings varied between $400.00
to $1,400.00 a month. Appellant also testified that his VA benefits had been reduced from
$2,940.00 to $890.00 a month. He listed his monthly expenses as $5,305.25. The Board finds
that based on the record appellant’s documented earnings exceed his expenses by $3,286.75
more than enough so that recovery of an overpayment will not defeat the purpose of the Act and
cause hardship to him. While he has asserted that his VA benefits were reduced by $2,050.00 a
month which would be consistent with evidence of the VA’s prior reduction of his benefits as
described in the record, even with this reduction his income exceeds his expenses by $1,236.75 a
month. The Board is unable to give credence to appellant’s testimony regarding his wife’s
income given the wide range and lack of supportive evidence.
There is no evidence that recovery of an overpayment would be considered to be against
equity and good conscience as appellant has not submitted any evidence or testimony that in
reliance on such payments or on notice that such payments would be made, he gave up a
valuable right or changed his position for the worse. With respect to the recovery of the
overpayment, the Board notes its jurisdiction on appeal is limited to reviewing those cases where
the Office seeks recovery from continuing compensation benefits under the Act.21

16

Id.

17

20 C.F.R. § 10.437(b).

18

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.b(3) (October 2004).
19

Appellant did not calculate his monthly income on the overpayment recovery questionnaire, but initially listed
his wife’s monthly income as $700.00 a month rather than $700.00 every two weeks.
20

This monthly income number is based on the reduction of VA benefits to $890.00 and his wife’s income to
$400.00 a month in agreement with appellant’s testimony.
21

D.R., 59 ECAB 148 (2007).

6

As argued by counsel, the Board has considered that appellant’s VA benefits have been
reduced and determined that this reduction was not sufficient to result in financial hardship for
him and that waiver is not appropriate.
CONCLUSION
The Board finds that appellant has received an overpayment in the amount of $14,539.11
in which he was not at fault, and that the overpayment was not subject to waiver.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 10-97
Issued: September 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from a May 5, 2009 merit decision
of the Office of Workers’ Compensation Programs that denied her claim. 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 established that she sustained an injury in the performance
of duty causally related to her employment.
FACTUAL HISTORY
On February 3, 2009 appellant, a 60-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) for bilateral carpal tunnel syndrome as well as leg and knee
conditions which she attributed to “repetitive use” of her hands, wrists and fingers to process
mail. In addition to “manipulation[,] verification and lifting of mails,” appellant also attributed
her condition to “repetitive use of legs/knees” to perform employment duties involving
“constant” bending, stooping and standing and “expos[ure] to a cold work area.” Appellant first

became aware of her conditions and that it was caused by her federal employment on
February 1, 2008.
Appellant submitted results from diagnostic tests as well as a report and notes bearing
illegible signatures.
Appellant submitted reports, dated September 18 and October 9, 2008, in which
Dr. Miles M. Johnson, a Board-certified physiatrist, presented findings following an
electromyography. Dr. Johnson diagnosed right and left wrist carpal tunnel syndrome.
On November 10, 2008 Dr. George S. Flinn, a Board-certified radiologist, reported
findings following a peripheral vascular examination of appellant’s lower extremities. He
diagnosed mild occlusive arterial disease changes in appellant’s left lower extremity and also
noted that a study of appellant’s right lower extremity was normal.
Appellant submitted a January 14, 2009 report, in which Dr. George W. Wood, II, a
Board-certified orthopedic surgeon, presented findings on examination and diagnosed cervical,
thoracic and lumbar arthritis, conditions which he states were “exacerbated” by “work stress and
repetitive work activity.”
In a March 13, 2009 note, appellant described her history of injury and the employment
activities that she deemed responsible for her condition.
In an April 16, 2009 note, Dr. Marsha V. Lee, a family physician, noted:
“[Appellant] has recently been diagnosed with carpal tunnel syndrome in both
wrists. This condition is typically caused by repetitive motions and given her job
description, is most likely work related.”
By decision dated May 5, 2009, the Office denied the claim because appellant failed to
establish the employment factors she deemed responsible for her condition and, further, the
medical evidence did not demonstrate that compensable employment factors caused a medicallydiagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).

2

based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.7
ANALYSIS
Appellant was employed as a mail clerk. She has identified “repetitive use” of her hands,
wrists and fingers to process mail as employment factors she deemed responsible for her
condition. Appellant also identified “manipulation[,] verification and lifting of mails” as well as
“repetitive use of legs/knees” to perform employment duties involving “constant” bending,
stooping and standing and “expos[ure] to a cold work area.”
An employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.8 The employing establishment controverted the claim by noting that appellant had
been on modified duty for a period of time. As there is no evidence contradicting appellant’s
allegations that she did perform repetitive tasks in her mail clerk position, the Board finds
appellant established employment factors relevant to her claim.
Appellant’s burden is to demonstrate that the established employment factors caused a
medically-diagnosed condition. Causal relationship is a medical issue that can only be proven by
4

Id., Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

Id.

3

probative, rationalized medical opinion evidence. The medical evidence of record lacks the
requisite reasoning to establish causal relationship and, consequently, the Board finds appellant
has not established she sustained an injury in the performance of duty causally related to her
employment.
Medical reports dated July to October 2008 bearing illegible signatures are not competent
medical evidence and thus have no evidentiary value because they cannot be identified as having
been prepared by a “physician” as defined by the Act.9 Thus, this evidence does not establish a
causal relationship between the established employment factors and appellant’s alleged
condition.
The reports and notes signed by Drs. Flinn, Johnson, Lee and Wood have little probative
value on the issue of causal relationship because they lack an opinion explaining how the
established employment factors caused the conditions they diagnosed.10 Therefore, while
Dr. Lee stated that carpal tunnel syndrome is “typically caused by repetitive motions” consistent
with appellant’s job description and thus her condition was “most likely work related,” Dr. Lee
did not identify the specific nature of the repetitive motions appellant performed, nor how often
and for how long she would have performed these motions. Furthermore, he did not explain how
the repetitive motions would have physiologically caused appellant’s carpal tunnel syndrome.
Dr. Lees’ opinion does not demonstrate a causal relationship exists between the established
employment factors and appellant’s condition. Dr. Lee also did not discuss the relevant
employment factors or explain how they caused appellant’s condition. Finally, Dr. Lee’s use of
the words “typically” and “likely” indicates that her opinion is speculative.11
Although, Dr. Wood states that appellant’s arthritis was “exacerbated” by “work stress
and repetitive work activity, because Dr. Wood did not clarify his opinion as to what specific
work stress or repetitive activities exacerbated appellant’s condition, his opinion is too
generalized to establish the required causal relationship. Thus, this evidence does not establish a
causal relationship between the identified employment factors and appellant’s condition.
An award of compensation may not be based on surmise, conjecture or speculation.12
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.13 The fact that a condition manifests itself or worsens during a
period of employment14 or that work activities produce symptoms revelatory of an underlying
9

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (reports not signed by a
physician lack probative value).
10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

Ricky S. Storms, 52 ECAB 349 (2001); Leslie C. Moore, 52 ECAB 132 (2000).

12

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
13

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

14

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

4

condition15 does not raise an inference of causal relationship between a claimed condition and
identified employment factors.
On appeal appellant described in detail her job duties and explained the relationship
between her current conditions with these work activities. She noted that she always worked to
meet the dispatch time. This statement, while relevant to the facts of her claim is not medical
evidence. Without medical evidence establishing the causal connection between her job duties
and her conditions appellant’s burden of proof has not been met.
Because the medical evidence contains no reasoned discussion of causal relationship, one
that soundly explains how appellant’s employment factors caused or aggravated a firmly
diagnosed medical condition, the Board finds appellant has not established the essential element
of causal relationship.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
15

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

5


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

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

Docket No. 09-1963
Issued: July 20, 2010

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 21, 2009 appellant filed an appeal from a February 26, 2009 decision of the
Office of Workers’ Compensation Programs. 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 sustained a recurrence of total disability on April 2, 2001
causally related to the accepted bilateral carpal tunnel syndrome and ganglion condition.
On appeal, appellant asserted that she had to work outside her physical restrictions and
that the Office hearing representative did not address her arguments.
FACTUAL HISTORY
On March 7, 1990 appellant, then a 35-year-old automated mark-up clerk, filed an
occupational disease claim, alleging that keying and labeling mail caused bilateral carpal tunnel
syndrome. She stopped work on February 26, 1990. The Office accepted bilateral carpal tunnel
and tendon joint ganglion. Appellant returned to modified duty on October 1, 1990. She

sustained a recurrence of disability on March 7, 1995. In November 1995 appellant underwent a
left carpal tunnel release. She returned to modified duty as a lobby monitor on April 27, 1998.
In a June 28, 1998 decision, the Office determined that her actual earnings as a lobby monitor
fairly and reasonably represented her wage-earning capacity. Appellant sustained a recurrence
of disability on September 28, 1998 and was returned to the periodic compensation rolls.1
The Office referred appellant to Dr. Gary Korenman, a Board-certified neurologist. In a
June 20, 2000 report, he reviewed the medical record, statement of accepted facts and noted
appellant’s complaints of numbness and pain in the left hand that radiated into the neck on the
left. He provided findings on physical examination, noting very mild carpal tunnel sensitivity
with reduced vibration sense in the fingerpads of the bilateral middle fingers, negative bilateral
Phalen’s sign and normal reflexes. Dr. Korenman diagnosed mild carpal tunnel syndrome and
advised that appellant could work eight hours daily and was to avoid repetitive wrist movements.
A September 21, 2000 magnetic resonance imaging scan of the cervical spine demonstrated
herniated discs at C4-5 and C6-7.
By report dated December 12, 2000, Dr. Tsai C. Chao, an attending Board-certified
physiatrist, noted appellant’s complaints of neck pain and stiffness and weakness, numbness and
tingling in both hands. Physical examination demonstrated a positive Spurling and Tinel’s tests
on the right with a positive Tinel’s sign at the left elbow and diminished pinprick and light touch
sensation bilaterally. Dr. Chao diagnosed left cubital tunnel syndrome, right carpal tunnel
syndrome, status post left carpal tunnel release and cervical intervertebral disc herniations with
right cervical radiculopathy. In terms of work restrictions, appellant was to avoid repetitive
motion to both wrists; limit lifting and carrying to less than 10 pounds with the right hand and
less than 5 pounds with the left intermittently; that if sitting doing a desk job, the left elbow
should be cushioned with a soft pad; and that she should initially work four hours daily. On
February 2, 2001 Dr. Chao reiterated his diagnoses and work restrictions. By letter dated
February 8, 2001, he further added that appellant could bend, stoop and twist for a total of one
hour in four working hours.
On February 27, 2001 the employing establishment offered appellant a modified mark-up
clerk position for four hours daily, answering the telephone and providing other administrative
duties as required with restrictions of no pushing, pulling or fine manipulation including
keyboarding; to avoid repetitive motion of both wrists; and a maximum lifting/carrying
restriction of 10 pounds. Appellant accepted the position on March 2, 2001 and returned to work
that day.
On March 12, 2001 Dr. Dong Hong Shong, a Board-certified internist, advised that
appellant experienced a headache, bilateral elbow pain and neck pain and should not work for
two days. In a March 19, 2001 report, Dr. Ling O. Cheng, Board-certified in neurology, noted
her complaints of increased neck pain radiating to both shoulders and bilateral hand and forearm
pain since she returned to work two weeks prior. On examination, there was tenderness in the
cervical paraspinal region with reduced range of motion on the right and decreased sensation to
pinprick, light touch and temperature in the median nerve distribution bilaterally. Dr. Cheng
1

The 1998 recurrence claim was initially denied by decision dated April 14, 1999 but accepted on July 5, 2000.

2

diagnosed bilateral carpal tunnel syndrome, cervical radiculopathy and left ulnar nerve
entrapment at the elbow and recommended physical therapy and repeat electrodiagnostic studies.
Appellant stopped work on April 2, 2001 and did not return. On April 8, 2001 she filed a
recurrence of disability claim, stating that constant pain to both wrists and forearms and neck
pain kept her from sleeping and was caused by excessive hand repetition at work. The
employing establishment contended that her modified duties were within her medical
restrictions. In an April 13, 2001 letter, Mike Manganiello, manager customer services, advised
that appellant’s modified assignment consisted of answering telephones from 12:00 p.m. to
4:00 p.m. daily. When appellant informed him on March 27, 2001 that her wrists and arms were
hurting due to answering the telephone and requested a headset, he stated that he would look into
buying a headset that was compatible with the telephone system.
On April 3, 2001 Dr. Chao repeated his diagnoses of left cubital tunnel syndrome,
bilateral carpal tunnel syndrome and right cervical radiculopathy and advised that appellant was
totally incapacitated. In reports dated April 6 and May 4, 2001, he provided findings on physical
examination, recommended electrodiagnostic studies and stated that it was undetermined when
she could return to work. On June 1, 2001 Dr. Chao described appellant’s work history and the
physical restrictions of her current modified-duty assignment. He reported that, after her return
to work on March 2, 2001, she came to his office complaining of worsening neck pain and
stiffness and bilateral forearm, wrist and hand pain, tingling, numbness and weakness and could
no longer continue her part-time work. When Dr. Chao examined her on April 6, 2001, he found
decreased cervical spine range of motion with pain and tenderness between C4-5 and C5-6
spinous processes. Examination of the upper extremities demonstrated normal muscle strength
with diminished grip strength on the right, decreased sensation to pinprick and light touch
involving the ulnar one-and-a-half digits bilaterally and positive Tinel’s signs at the elbows and
wrists bilaterally with an equivocal Phalen’s test. Dr. Chao reiterated the diagnoses and
recommendations for further diagnostic studies. He noted that, within a reasonable degree of
medical certainty, if the history provided by appellant was correct, the recent exacerbation of her
symptoms was causally related to the initial employment injury and recent job assignment and
she remained totally disabled. In reports dated June 29 to November 30, 2001, Dr. Chao advised
that her physical findings had not changed and that she remained totally disabled.2
The Office found a conflict in medical opinion between Dr. Chao and Dr. Korenman. On
January 11, 2002 it referred appellant to Dr. Chandra M. Sharma, Board-certified in neurology,
for an impartial evaluation, noting that the conflict in medical opinion was regarding whether a
causal relationship existed between appellant’s condition and the accepted work injury and
whether there was a continuing disability due to the accepted injury.3
In a February 5, 2002 report, Dr. Sharma reviewed the medical records, appellant’s
complaints and employment history. Appellant reported that she used a lot of automated,
repetitive equipment that caused pressure and pain in her hands and arms. Dr. Sharma advised
2

On August 3, 2001 the physician noted that appellant was being evaluated for a thyroid nodule and on
November 30, 2001 advised that she had been treated by a chiropractor in Canada.
3

Appellant was initially referred on September 20, 2001 to a different neurologist for an impartial examination.

3

that examination demonstrated normal motor tone in the arms and legs with no atrophy or
deformity and normal reflexes. On sensory examination, appellant reported an area of
diminished sensation which was nonspecific and did not represent a neurological problem of a
central or peripheral nature. Other than a healed left wrist scar, the appearance of the hands and
forearms was normal with no swelling. Appellant reported painful neck motion and pain upon
squeezing the physician’s hand. Dr. Sharma diagnosed status post left carpal tunnel surgery and
advised that the objective neurological examination was normal with no objective signs of carpal
tunnel syndrome, no neurological disability or neurological limitations for work or activities of
daily living. He concluded that appellant could perform all work activities without limitation
and that no further medical or neurological treatment was needed.
In March 22, 2002 reports, Dr. Chao reiterated that appellant continued to be totally
disabled and requested authorization for a neurosurgery consultation and possible ulnar nerve
transposition.
By decision dated July 2, 2002, the Office denied appellant’s claim that she sustained a
recurrence of disability on April 2, 2001.
On July 9, 2002 appellant, through her attorney, requested a hearing. In a July 22, 2002
report, Dr. Cheng reported that an April 12, 2001 electromyogram (EMG) and nerve conduction
studies demonstrated bilateral nerve compression at the elbows with mild to moderate
demyelination and evidence of cervical radiculopathy. Physical examination demonstrated
tenderness in the cervical paraspinal region, diminished range of motion on the wrist, positive
Tinel’s signs in the wrists and elbows and decreased sensation to pinprick, light touch and
temperature in bilateral median nerve distribution. Dr. Cheng diagnosed bilateral carpal tunnel
syndrome, cervical radiculopathy and bilateral ulnar nerve entrapment at the elbows. He
concluded that appellant’s conditions were causally related to her employment injury due to
repetitive use of her hands and arms at work. On August 28, 2002 Dr. Chao reiterated his
findings.
In an April 7, 2003 decision, an Office hearing representative found the case was not in
posture for hearing and vacated the July 2, 2002 decision. Appellant had initially been referred
to a different physician for an impartial evaluation and then referred to Dr. Sharma without
further explanation. This raised a question as to whether Dr. Sharma was properly selected as an
impartial specialist. The case was remanded for further medical development.
On June 5, 2003 the Office referred appellant to Dr. William Robert Buschmann, a
Board-certified orthopedic surgeon, for a second opinion evaluation. In a July 20, 2003 report,
Dr. Buschmann advised that elbow examination demonstrated a normal range of motion and a
positive Tinel’s sign bilaterally. Wrist range of motion was normal with no thenar atrophy and
no intrinsic muscle atrophy. Tinel’s and Phalen’s signs were positive bilaterally and appellant
had decreased sensation in the thumb, index and long fingers. Dr. Buschmann diagnosed
bilateral cubital and carpal tunnel syndromes and advised that appellant could work in a
light-duty capacity with a restriction on repetitive use of the wrists and hands. Regarding causal
relationship, he stated that the carpal tunnel syndrome was employment related but he could not
state whether the cubital tunnel was related. Dr. Buschmann advised that appellant could work
eight hours a day with reaching, reaching above the shoulder, operating a motor vehicle and

4

repetitive movements of the wrists and elbows limited to two hours daily and a 15-pound
restriction on pushing, pulling and lifting. In a July 16, 2003 report, he advised that she had a
repetitive stress injury resulting from work but could have continued to work on April 2, 2001
with restrictions of no repetitive use of the hands and no lifting greater than 15 pounds.
In an April 15, 2005 report, Dr. Chao advised that appellant could return to work for four
hours of limited-duty daily. He advised that her symptoms had not changed.
Appellant was separated from the employing establishment effective May 25, 2007. On
November 21, 2005 she submitted a Form CA-7, claim for compensation commencing
April 2, 2001. The employing establishment controverted the claim.
In a November 24, 2006 report, Dr. Chao described appellant’s physical examination and
clinical course from April 6, 2001 to date. He diagnosed bilateral ulnar entrapment at the
elbows, right carpal tunnel syndrome and status post left carpal tunnel release. Dr. Chao advised
that appellant’s injuries were causally related to repetitive keying and labeling at work. He
recommended further neurological evaluation and advised that she was permanently partially
incapacitated.
By decision dated July 30, 2007, the Office denied appellant’s claim that she sustained a
recurrence of disability on April 2, 2001; however, it paid appellant wage-loss compensation for
four hours a day for the period July 1, 2005 through June 30, 2007. On August 27, 2007
appellant requested a hearing. In a November 2, 2007 work capacity evaluation, Dr. Jose L.
Medina, a Board-certified neurologist, advised that she needed light duty with lifting limited to
three pounds or less.
At the December 20, 2007 hearing, appellant contended that the light-duty job beginning
in March 2001 was outside her physical restrictions. She had to repetitively answer the
telephone and search high shelves for missing packages which could weigh up to 20 pounds.
Appellant also had to cut mail labels off newspapers and magazines. She had requested a
telephone headset but was not given one. In a November 27, 2007 report, Dr. Chao described
appellant’s treatment and diagnosed cervical spondylosis; rule-out cervical radiculopathy; left
lateral epicondylitis; bilateral medial epicondylitis with ulnar nerve entrapment at the elbows;
and bilateral carpal tunnel syndrome. He opined that her April 2, 2001 recurrence was caused by
working beyond her medical restrictions, if the history she provided was correct.
By decision dated March 27, 2008, an Office hearing representative remanded the case to
the Office to obtain a description of the job duties appellant was performing on April 2, 2001 and
incorporate this into an updated statement of accepted facts.
On April 8, 2008 the employing establishment described appellant’s work history and
advised that she was not required to work outside her physical restrictions beginning on
March 2, 2001. The restrictions were described as no pulling, pushing or fine manipulation
including keyboarding or repetitive motion to both wrists with a lifting restriction of 10 pounds
and work limited to four hours a day. The employing establishment advised that appellant’s
modified position required her to answer the telephone. The employer disagreed with her
assertion that she had to search for packages on high shelves, stating that, if she was unable to

5

answer a telephone question, she would put the call on hold and ask for a supervisor to take the
call or, if no one was around, to write down a message or relay it to someone verbally. The
employing establishment provided a copy of the February 27, 2001 job offer, accepted by
appellant on March 2, 2001.
The Office prepared an updated statement of accepted facts that included a description of
appellant’s job duties and physical requirements as of March 2, 2001. On April 14, 2008 it
forwarded it to Dr. Chao for comment. In an undated letter, received by the Office on May 7,
2008, Dr. Chao referred to his November 27, 2007 report. The Office again wrote him on
June 12, 2008, asking him to specifically address whether appellant’s job duties on April 2, 2001
caused a worsening of her condition and asked that he respond within 10 days. In a July 2, 2008
decision, the Office denied her recurrence claim, noting that Dr. Chao did not respond to its
inquiries.
Appellant requested a hearing and submitted a December 1, 2008 report from Dr. Chao
who again referred the Office to his November 27, 2008 report, advising that his opinion on her
work capacity and physical state had not changed.
A hearing was held on December 10, 2008. Dr. Chao testified that appellant had been
totally disabled for three years but had returned to work in April 1998 and sustained a recurrence
of total disability on August 26, 1998 when she first came to his office for medical care. He
described a history that she was first disabled in 1990 and began light duty in October 1990 and
stated that she reported that, when she returned to work in March 2001, her condition worsened
because she had to perform repetitive hand movements such as sorting and filing and writing
addresses and that she had to lift packages that weighed over 15 pounds. When appellant came
to his office on April 26, 2001, she complained of worsening pain, stiffness, weakness and
tingling in the hands and wrists. Dr. Chao opined that her condition worsened such that she
could no longer continue part-time work. He acknowledged that appellant’s report of her job
duties in March 2001 did not agree with those in the statement of accepted facts but based on the
history provided by her and his physical findings, she sustained a recurrence of total disability on
April 2, 2001. Appellant testified that the job description provided by the employing
establishment was incorrect. The hearing representative requested that she submit any witness
statements regarding her job duties in March 2001.
By decision dated February 26, 2009, an Office hearing representative affirmed the
July 2, 2008 decision.
LEGAL PRECEDENT
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

6

misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.6
ANALYSIS
The Office accepted appellant’s March 7, 1990 claim for bilateral carpal tunnel syndrome
and a tendon joint ganglion. Appellant began working modified duty on October 1, 1990 and
sustained a recurrence of disability on March 7, 1995. She underwent a left carpal tunnel release
in November 1995 and returned to modified duty on April 27, 1998. Appellant again sustained a
recurrence of disability on September 28, 1998. Her attending physiatrist, Dr. Chao, released her
to return to light duty on December 12, 2000. The employing establishment offered appellant a
position within the restrictions provided by Dr. Chao, which she accepted on March 2, 2001.
Mr. Manganiello, an employing establishment manager, advised that her modified assignment
consisted of answering the telephone from 12:00 p.m. to 4:00 p.m. daily. The employing
establishment stated that appellant was never asked to work outside her physical restrictions and
that if she was not able to answer a telephone inquiry, she put the call on hold and asked for a
supervisor or took a message, either in writing or verbally. Appellant stopped work on April 2,
2001 and claimed wage loss commencing that day.
The Board finds that appellant has not established a recurrence of total disability on
April 2, 2001 causally related to her accepted bilateral carpal tunnel syndrome and ganglion.
Appellant did not establish that the nature and extent of her injury-related condition changed on
April 2, 2001 so as to prevent her from continuing to perform her limited-duty assignment. The
Board has held that a partially disabled claimant who returns to a light-duty job has the burden of
proving that he or she cannot perform the light duty, if a recurrence of total disability is claimed.7
The issue of whether an employee has disability from performing a modified position is
primarily a medical question and must be resolved by probative medical evidence.8 A claimant’s
burden includes the necessity of furnishing medical evidence from a physician who, on the basis
of a complete and accurate factual and medical history, concludes that the condition is causally

5

Id.

6

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

7

See William M. Bailey, 51 ECAB 197 (1999).

8

Cecelia M. Corley, 56 ECAB 662 (2005).

7

related to the employment injury and supports that conclusion with sound medical rationale.
Where no such rationale is present, the medical evidence is of diminished probative value.9
In March 19, 2001 and July 22, 2002 reports, Dr. Cheng provided no opinion regarding
appellant’s ability to work. He reported that EMG studies on April 12, 2001 demonstrated
bilateral nerve compression at the elbows and evidence of cervical radiculopathy. Neither an
elbow nor a cervical condition have been accepted as employment related. While Dr. Cheng
advised that appellant’s conditions were caused by repetitive use of her hands and arms at work,
he did not acknowledge that she had been working modified assignments since 1990,
demonstrate any knowledge of the job requirements of the sedentary duties of her limited-duty
position or provide a rationalized explanation as to why she could not perform the light-duty
work. His reports are insufficient to establish that appellant sustained a recurrence of total
disability on April 2, 2001.
On a form report dated April 3, 2001 Dr. Chao diagnosed left cubital tunnel syndrome,
bilateral carpal tunnel syndrome and right cervical radiculopathy and advised that appellant was
totally disabled. In a June 1, 2001 report, he described her complaints of increased neck pain and
stiffness and bilateral forearm, wrist and hand pain, tingling, numbness and weakness such that
she could no longer continue her part-time work. Dr. Chao noted the physical restrictions of
appellant’s modified-duty job and provided physical examination findings including cervical
spine tenderness and decreased range of motion, diminished grip strength and decreased
sensation of the upper extremities and positive Tinel’s signs at the wrists and elbows. He
advised that the recent exacerbation of her symptoms was caused by the initial employment
injury and recent job assignment. Dr. Chao submitted numerous additional reports, including
deposition testimony on February 10, 2008 in which he advised that appellant was totally
disabled. While he noted the physical restrictions of the modified position she performed
beginning on March 2, 2001, he did not address any of the specific duties that she performed
prior to April 2, 2001. Dr. Chao acknowledged that the job duties described by appellant did not
agree with those provided by the employing establishment. Furthermore, he did not specifically
address why the accepted bilateral carpal tunnel syndrome and ganglion prevented appellant
from continuing her modified duties. These reports do not reflect that appellant sustained a
recurrence of disability on April 2, 2001 due to the accepted wrist conditions.
Appellant was seen by Dr. Sharma in February 2002.10 Physical examination findings
included painful neck motion and pain upon squeezing the physician’s hand and an area of
diminished sensation that, was nonspecific which, he advised, did not represent a neurological
problem. Dr. Sharma diagnosed status post surgery of left carpal tunnel syndrome and advised
that objective neurological examination was normal with no objective signs of carpal tunnel
syndrome, no neurological disability and no neurological limitations of work or activities of
daily living. He concluded that appellant could perform all work activities without limitation
and advised that no further medical or neurological treatment was needed.
9

Mary A. Ceglia, 55 ECAB 626 (2004).

10

While Dr. Sharma was identified as a referee examiner, because the circumstances surrounding the referral are
not found in the case record, his opinion would not be entitled to the special weight accorded an impartial medical
examiner and is that of a second opinion physician.

8

In his July 5, 2003 report, Dr. Buschmann advised that wrist range of motion was normal
with no thenar atrophy and no intrinsic muscle atrophy. Tinel’s and Phalen’s signs were positive
bilaterally and appellant had decreased sensation in the thumb, index and long fingers. Elbow
examination demonstrated normal range of motion and a positive Tinel’s sign bilaterally.
Dr. Buschmann diagnosed bilateral cubital and carpal tunnel syndromes and advised that
appellant could work in a light-duty capacity with a restriction on repetitive use of the wrists and
hands. Regarding causal relationship, he stated that the carpal tunnel syndrome was employment
related but he could not state that the cubital tunnel was. Dr. Buschmann advised that appellant
could work eight hours a day with reaching, reaching above the shoulder, operating a motor
vehicle and repetitive movements of the wrists and elbows limited to two hours daily and a 15pound restriction on pushing, pulling and lifting. In a July 16, 2003 report, he advised that she
had a repetitive stress injury resulting from work but could have continued to work on April 2,
2001 with restrictions of no repetitive use of the hands and no lifting greater than 15 pounds.
The Board has long held that medical conclusions unsupported by rationale are of
diminished probative value and insufficient to establish causal relationship.11 It is appellant’s
burden of proof to submit the necessary medical evidence to establish a claim for a recurrence.
A mere conclusion without the necessary medical rational explaining how and why the physician
believes that a claimant’s accepted exposure would result in a diagnosed condition is not
sufficient to meet the claimant’s burden of proof. The medical evidence must also include
rationale explaining how the physician reached the conclusion he or she is supporting.12 The
record in this case does not contain a medical report providing a reasoned medical opinion that
appellant’s claimed recurrence of disability was caused by the accepted cervical spondylosis.13
In this case, Dr. Chao did not provide a rationalized explanation as to why she could not perform
her modified position after April 2, 2001 due to the accepted wrist conditions.
Appellant also failed to establish that she was working outside her restrictions. The
employing establishment explained that her part-time duties were sedentary and did not entail
repetitive use of the hands or wrists. Appellant provided no witness statements to support her
contention that she had to work outside her restrictions or to describe the duties that she stated
she performed. Thus, the record contained no credible evidence substantiating that she had a
change in the nature and extent of her light-duty requirements or was required to perform duties
that exceeded her medical restrictions.14 Appellant therefore did not meet her burden of proof to
establish that she sustained a recurrence of total disability on April 2, 2001.15
11

See Albert C. Brown, 52 ECAB 152 (2000).

12

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

13

Cecelia M. Corley, supra note 8.

14

Richard A. Neidert, 57 ECAB 474 (2006).

15

The Board notes that appellant submitted evidence subsequent to the February 26, 2009 decision. The Board
cannot consider this evidence as its review of the case is limited to the evidence that was before the Office at the
time it rendered the February 26, 2009 decision. 20 C.F.R. § 501.2(c)(1). The Board further notes that appellant
remained entitled to four hours compensation following the April 2, 2001 claimed recurrence. While the record
indicates that she received wage-loss compensation for four hours daily for the period July 1, 2005 through June 30,
2007, it does not indicate that she received four hours compensation for periods before or after that time.

9

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a recurrence of disability on April 2, 2001 causally related to her accepted bilateral
wrist conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2009 is affirmed.
Issued: July 20, 2010
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
David G. Jennings, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0659
Issued: August 8, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 6, 2018 appellant, through counsel, filed a timely appeal from a January 3,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 43 percent
binaural hearing loss, for which he previously received a schedule award.
FACTUAL HISTORY
On December 8, 2015 appellant, then a 59-year-old retired tool room mechanic, filed an
occupational disease claim (Form CA-2) for bilateral hearing loss, which he attributed to noise at
work.4 He noted that he first became aware of his condition and realized that it resulted from his
federal employment on July 31, 2002.
OWCP received the results of an August 13, 2015 audiogram.
In a March 8, 2016 statement, appellant indicated that from December 1979 to 1980 and
December 1981 to March 2008 he worked as an insulator, and from March 2008 to July 2015 he
worked as a toolroom mechanic at the employing establishment. He described the type of noise
he was exposed to, which he believed contributed to his hearing loss. Appellant noted that he was
last exposed to hazardous noise on July 3, 2015.
OWCP referred appellant, together with a statement of accepted facts (SOAF) and the
relevant medical evidence of record, to Dr. Wayne Shaia, a Board-certified otolaryngologist and
second opinion examiner, for an otologic examination and audiological testing. In a June 3, 2016
report, Dr. Shaia diagnosed noise-induced hearing loss. He indicated that appellant had
sensorineural hearing loss in excess of what would be normally predicted on the basis of
presbycusis. Dr. Shaia opined that appellant’s hearing was “due to the noise exposure from his
federal civilian employment.” He explained that an August 2015 audiogram and an audiogram
conducted that day both supported the pattern of noise-induced hearing loss. Dr. Shaia noted that
appellant was already wearing bilateral hearing aids and had reached maximum medical
improvement (MMI).
Maureen Nelson, an audiologist, performed an audiogram on the date of Dr. Shaia’s
examination. She diagnosed mild-to-severe sensorineural hearing loss bilaterally and also
commented that appellant had tinnitus in each ear. Ms. Nelson reported testing at the frequency
levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) which revealed the following: right ear 35, 40,
60, and 80 decibels (dBs), respectively; left ear 45, 35, 60, and 80 dBs, respectively. Utilizing the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),5 she calculated that appellant sustained 48.12 percent monaural
hearing impairment in the right ear (43.12 percent + 5 percent for tinnitus) and 50 percent monaural
hearing impairment in the left ear (45 percent + 5 percent for tinnitus). Ms. Nelson calculated a
binaural hearing impairment of 48.4 percent. This report was co-signed by Dr. Shaia.
On June 27, 2016 OWCP accepted appellant’s claim for bilateral sensorineural hearing
loss.

4

Appellant retired from federal employment on July 3, 2015.

5

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

2

On February 9, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a March 2, 2017 report, Dr. Jeffrey M. Israel, a Board-certified otolaryngologist and
OWCP district medical adviser (DMA) reviewed the SOAF and the medical record, including
Dr. Shaia’s June 3, 2016 second opinion report. He agreed with the finding that appellant had
43.12 percent monaural hearing loss in the right ear and 45 percent monaural hearing loss in the
left ear. Dr. Israel also noted the additional five percent impairment for tinnitus. He related,
however, that he was unable to comment on a tinnitus impairment because there was no discussion
of tinnitus in the record, no discussion of how tinnitus impacted activities of daily living (ADL),
and no Tinnitus Handicap Inventory to help determine a tinnitus award. Utilizing the sixth edition
of the A.M.A., Guides, Dr. Israel determined that appellant had 43.4 percent binaural hearing loss.
He reported that appellant had reached MMI on June 3, 2016, the date of the most recent audiogram
examination.
In a January 3, 2018 decision, OWCP granted appellant a schedule award for 43 percent
binaural hearing loss. The period of the award ran for 86 weeks from June 3, 2016 to
January 25, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound 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. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.9
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.10 With respect to a schedule award, it is the claimant’s
burden of proof to establish permanent impairment of a scheduled member or function of the body
as a result of his or her employment injury.11 A claimant may seek an increased schedule award
if the evidence establishes that he or she sustained an increased impairment causally related to an

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
10

John W. Montoya, 54 ECAB 306 (2003).

11

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

3

employment injury.12 The medical evidence must include a detailed description of the permanent
impairment.13
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.14 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 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.15 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.16 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by
five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.17 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.18
“If tinnitus interferes with activities of daily living, including sleep, reading (and other
tasks requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.19”
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.20
ANALYSIS
The Board finds that this case is not in posture for a decision.

12

See Rose V. Ford, 55 ECAB 449 (2004).

13

See Vanessa Young, 55 ECAB 575 (2004).

14

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

15

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

16

Id.

17

Id.

18

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

19

A.M.A., Guides 249; see also R.H., Docket No. 10-2139 (issued July 13, 2011).

20

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

4

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 well-being, up to
five percent may be added to a measurable binaural hearing impairment.21” In this case, while
Dr. Shaia’s June 3, 2016 rating included five percent impairment for tinnitus, the report itself did
not provide specific justification for the additional rating, as noted by the DMA.22
It is well-established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter.23 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.24 Once OWCP undertook development of the evidence by referring
appellant to Dr. Shaia, a second opinion physician, it had a duty to secure an appropriate report
addressing the relevant issues.25 Because the basis for the additional rating for tinnitus absent, the
case will be remanded to OWCP to request a supplemental report from Dr. Shaia to address the
basis of his tinnitus diagnosis. Following this and any necessary further development, OWCP
shall issue a de novo decision relative to the extent and degree of appellant’s hearing impairment.
CONCLUSION
The Board finds that the case is not in posture for decision.

21

Supra note 18.

22

D.M., Docket No. 17-1832 (issued March 14, 2018); D.F., Docket No. 15-0246 (issued September 16, 2016).

23

See Vanessa Young, 56 ECAB 575 (2004).

24

Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell,
34 ECAB 1233, 1237 (1983).
25

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

5

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: August 8, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6