United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.E., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Dayton, OH, Employer
__________________________________________

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

Docket No. 09-230
Issued: July 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 30, 2008 appellant filed a timely appeal from a September 26, 2008 decision
of the Office of Workers’ Compensation Programs denying her claim for a recurrence of total
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of total disability beginning
April 11, 2008 causally related to her November 5, 2004 employment injury.
FACTUAL HISTORY
On November 5, 2004 appellant, then a 40-year-old part-time flexible mail handler,
sustained work-related lumbar and cervical strains when she was pushing a heavy wire cart.1 On
1

Appellant has a preexisting nonwork-related herniated disc at L5-S1 for which she underwent a laminectomy
and discectomy in either 1992 or 1994. The record is not clear as to the year of her surgery.

March 25, 2005 she was placed on light duty for four hours a day within her medical restrictions
which included no lifting over five to seven pounds and no stooping, bending or squatting. As of
June 24, 2005 appellant was released to work eight hours a day and her work restrictions were
changed to no lifting over 10 to 15 pounds and no repetitive pushing, pulling or bending.
Effective December 30, 2006, she began performing a permanent light-duty position with no
pushing, pulling or lifting over 20 pounds and only occasional bending, stooping or twisting at
the waist.
In notes dated January 22, 2008, Dr. Jonathan J. Paley, an attending orthopedic surgeon,
stated that appellant’s low back pain due to her November 5, 2004 employment injury was
increasing in intensity. Appellant had difficulty sleeping due to pain which radiated into her
right leg and was associated with significant numbness and tingling. Dr. Paley noted a history of
low back surgery at the L5-S1 level. He provided findings on physical examination and
recommended a magnetic resonance imaging (MRI) scan to check the progress of her low back
condition. In a February 14, 2008 MRI scan report, Dr. Melissa Baujan Davis, a radiologist,
stated that appellant had loss of signal in the L5-S1 disc level consistent with degenerative disc
disease and mild facet joint hypertrophy at L4-5. There were degenerative end plate changes and
degenerative disc disease at L5-S1 with disc protrusion and osteophyte toward the right causing
right foraminal narrowing. Dr. Davis stated that these findings were similar in appearance to the
December 29, 2004 MRI scan and there were no significant changes in the findings from the
2004 MRI scan. On March 18, 2008 Dr. Paley provided findings on physical examination and
stated that appellant had severe ongoing low back pain on a daily basis radiating into her right
leg. He recommended a neurological consultation.
On April 11, 2008 appellant filed a claim for a recurrence of total disability. She stated
that her chronic low back pain began to worsen in January 2008 due to prolonged standing and
bending.
In an April 23, 2008 report, Dr. Jamal Taha, a neurosurgeon, stated that appellant had
experienced back pain since the November 5, 2004 employment injury. Appellant underwent
right L5-S1 back surgery in 1992. She presented with constant, severe pain in her back, and
right leg and buttock and right leg numbness. Dr. Taha provided findings on physical
examination which were normal. He diagnosed a lumbar strain and recommended another MRI
scan to further assess appellant’s back condition.
On April 29, 2008 the Office asked appellant to provide medical evidence establishing
that she was unable to perform her light-duty job due to a change in the nature and extent of her
accepted lumbar and cervical strains or a change in the nature and extent of her light-duty job
requirements.
In a May 28, 2008 report, Dr. Paley stated that appellant’s lumbar spine condition had
worsened over the past few months. The February 14, 2008 MRI scan revealed degenerative
disc disease at L5-S1 with disc protrusion and osteophyte formation toward the right, causing
right neural foraminal narrowing with neural encroachment. Appellant’s significant pain
affected her work activities. Dr. Paley placed her off work as of April 11, 2008 pending a
neurosurgical consultation.

2

By decision dated June 3, 2008, the Office denied appellant’s claim on the grounds that
she failed to establish that her inability to perform her light-duty job was due to a change in the
nature and extent of her accepted lumbar or cervical strains or a change in her light-duty job
requirements.
On July 25, 2008 appellant requested reconsideration. She alleged that her recurrence of
total disability was caused by the employing establishment’s withdrawal of her light-duty job.
Appellant provided no supporting documentation for this allegation.
In a May 5, 2005 disability certificate, Dr. Paley stated that appellant was unable to work
from May 7 to June 2, 2008 due to her low back injury. In a June 30, 2008 report, he provided
findings on physical examination which included focal spasms and tenderness in the right
paraspinal musculature, very guarded range of motion with forward flexion and lateral bending,
an antalgic gait favoring her right side and two plus deep tendon reflexes of the bilateral lower
extremities. Range of motion of appellant’s right hip and knee was of 4/5 strength. Appellant
was neurologically intact in both lower extremities. Dr. Paley noted that appellant presented
with neck and low back pain which she attributed to her November 5, 2004 employment injury.
In a July 7, 2008 disability certificate, he stated that appellant should remain off work until
approximately September 1, 2008. Dr. Paley noted that appellant was going to have surgery due
to her work-related injury. In a July 23, 2008 report, he stated that appellant had ongoing severe
low back pain due to her November 5, 2004 employment injury. Appellant was doing well after
back surgery in 1994 until her 2004 employment injury. Over the past three and one-half years,
appellant complained of back pain and pain, tingling and numbness in the right leg. Findings on
her last physical examination on June 30, 2008 included an antalgic gait favoring the right leg,
tenderness to palpation in her low back in the bilateral paraspinal musculature and bilateral
sacroiliac region. There was diminished sensation to light touch and pinprick in the right leg
when compared with the left leg. Dr. Paley stated that a February 14, 2008 MRI scan revealed
severe end plate and degenerative disc disease at the L5-S1 level which had contributed to right
neural foraminal compromise. He stated that the MRI scan correlated very highly with
appellant’s ongoing pain complaints and clinical examination findings. Dr. Paley opined that
appellant’s absence from work was a direct and proximate result of her November 5, 2004
employment injury. He stated that appellant was unable to work due to significant difficulty
with prolonged sitting or standing. Appellant was most comfortable when lying down. She was
taking pain medication to allow her to maintain daily living activities.
In a July 2, 2008 report, Dr. Taha stated that appellant had back and right leg and buttock
pain. Conservative treatment had not been successful and he recommended a surgical
discectomy and fusion at L5-S1.
In an August 19, 2008 MRI scan report, Dr. Patrick Pagur, a radiologist, stated that there
was no subluxation, spondylolisthesis, compression deformity or fracture in appellant’s spine.
There was disc dessication with mild disc space narrowing and some reactive end plate changes
at L5-S1. Some minor anterior and posterior spurring was seen at that level also. There was no
recurrent or residual disc herniation from the previous right L5 laminectomy surgery. There was
mild disc bulging with some facet hypertrophy and mild foraminal narrowing. Remaining disc
levels were adequate. Paraspinal muscles demonstrated normal signal and morphology. There
was no paraspinal soft tissue edema. Dr. Pagur’s impression was postoperative changes from the

3

right L5 laminectomy without recurrent disc herniation and multilevel disc disease with some
facet hypertrophy.
By decision dated September 26, 2008, the Office denied appellant’s claim on the
grounds that the evidence did not establish that she sustained a recurrence of total disability
beginning April 11, 2008 causally related to her November 5, 2004 employment injury.2
LEGAL PRECEDENT
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 of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot such light duty. As part of this burden, 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 job requirements.3 To establish a change in the nature and
extent of the injury-related condition, there must be probative medical evidence of record. The
evidence must include a medical opinion, based on a complete and accurate factual and medical
history, and supported by sound medical reasoning, that the disabling condition is causally
related to employment factors.4
ANALYSIS
Appellant has the burden to provide medical evidence establishing that she was totally
disabled beginning April 11, 2008 due to a worsening of her accepted lumbar and cervical
strains, or a change in her job duties such that she was unable to perform her light-duty work.
She alleged that her chronic low back pain began to worsen in January 2008 due to prolonged
standing and bending. Appellant later alleged that her recurrence of total disability was caused
by the employing establishment’s withdrawal of her light-duty job. There is no evidence of
record that the employing establishment modified her light-duty job, which she had performed
since December 2006, or that it withdrew the light-duty job.
Dr. Taha stated that appellant had experienced back pain since the November 5, 2004
employment injury. He noted that appellant underwent right L5-S1 back surgery in 1992.
2

Subsequent to the September 26, 2008 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); 20 C.F.R.
§ 10.5(x) provides, “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. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force (RIF)), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”
4

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Maurissa Mack, 50 ECAB 498, 503 (1999).

4

Findings on physical examination were normal. Dr. Taha diagnosed a lumbar strain and
recommended surgical discectomy and fusion at L5-S1. He provided no medical rationale
explaining the cause of appellant’s back pain in 2008 or need for surgery. Such rationale is
especially necessary because appellant had a preexisting back condition for which she underwent
surgery at the L5-S1, the same level for which Dr. Taha proposed surgery in 2008. Dr. Taha did
not opine that appellant was totally disabled as of April 11, 2008 due to a change in the nature or
extent of her accepted lumbar and cervical strains, or a change in her job duties such that she was
unable to perform her light-duty work. Therefore, his reports are not sufficient to establish that
appellant sustained a recurrence of total disability on April 11, 2008 causally related to her
November 5, 2004 employment injury.
In January 2008 Dr. Paley stated that appellant’s low back pain due to her November 5,
2004 employment injury was increasing in intensity. The pain radiated into her right leg and was
associated with significant numbness and tingling. Dr. Paley noted a history of low back surgery
at the L5-S1 level. On May 28, 2008 he stated that appellant’s lumbar spine condition had
worsened over the past few months and her significant pain affected her work activities. Dr.
Paley placed appellant off work as of April 11, 2008 pending a neurosurgical consultation.
However, he did not explain, with medical rationale, how appellant’s disability beginning
April 11, 2008 was due to a change in the nature or extent of her November 5, 2004 accepted
lumbar and cervical strains such that she could not perform her light-duty job requirements.
Therefore, these reports are not sufficient to establish appellant’s claim for a work-related
recurrence of total disability on April 11, 2008.
In a May 5, 2008 disability certificate, Dr. Paley stated that appellant was unable to work
from May 7 to June 2, 2008 due to her low back injury, but he did not explain how her disability
was causally related to her November 5, 2004 employment injury, nor did Dr. Paley explain why
appellant was unable to perform her light-duty job. On June 30, 2008 he noted findings on
physical examination which included focal spasms and tenderness in the right paraspinal
musculature,5 guarded range of motion with forward flexion and lateral bending and an antalgic
gait favoring her right side. Appellant was neurologically intact in both lower extremities.
Dr. Paley noted that she presented with neck and low back pain which she attributed to her
November 5, 2004 employment injury. However, he did not explain, with medical rationale,
how appellant’s neck and low back pain were caused by a change in the nature and extent of her
accepted cervical and lumbar strains. In a July 23, 2008 report, Dr. Paley stated that appellant
had ongoing severe low back pain due to her November 5, 2004 employment injury. He noted
that a February 14, 2008 MRI scan revealed severe end plate and degenerative disc disease at the
L5-S1 level which contributed to right neural foraminal compromise. Dr. Paley stated that the
MRI scan correlated with appellant’s ongoing pain complaints and clinical examination findings.
Dr. Davis stated in the February 14, 2008 MRI scan report that the findings were similar to those
in the December 29, 2004 MRI scan and there was no significant change between 2004 and
2008. Therefore, Dr. Paley’s opinion that the February 14, 2008 MRI scan supported causal
relationship between appellant’s neck and back problems in 2008 is not consistent with
Dr. Davis’ opinion that the MRI scan revealed no significant changes from the 2004 MRI scan.
5

Dr. Pagur noted in his August 19, 2008 MRI scan report that appellant’s paraspinal muscles demonstrated
normal signal and morphology and there was no paraspinal soft tissue edema.

5

Dr. Paley opined that appellant’s absence from work in 2008 was a direct and proximate result of
her November 5, 2004 employment injury; however, he provided no rationalized medical
opinion explaining how her disability was due to a change in the nature and extent of her
accepted cervical and lumbar strains. He opined that appellant was totally disabled due to
prolonged sitting or standing, but he did not explain, nor does the evidence show, that appellant’s
light-duty job requirements changed such that she had prolonged sitting or standing which
rendered her unable to perform the light-duty job that she had performed since December 2006.
In his reports, Dr. Paley did not provide sufficient medical rationale explaining how there was a
worsening of appellant’s accepted lumbar and cervical strains or a change in her light-duty job
requirements such that it resulted in a recurrence of total disability on April 11, 2008.
The Board finds that appellant failed to establish that she was totally disabled beginning
April 11, 2008 due to a change in the nature and extent of her employment-related lumbar and
cervical strains, or a change in the nature and extent of her light-duty job requirements.
Therefore, the Office properly denied appellant’s claim for a recurrence of total disability.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of total
disability beginning April 11, 2008 causally related to her November 5, 2004 employmentrelated lumbar and cervical strains.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 26, 2008 is affirmed.
Issued: July 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Vineland, NJ, Employer
)
___________________________________________ )
S.R., Appellant

Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1340
Issued: October 14, 2014

Case Submitted on the Record

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

JURISDICTION
On May 23, 2014 appellant, through her attorney, filed a timely appeal from a
December 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
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 met her burden of proof to establish disability as of
September 16, 2010 due to her accepted work-related injuries.
FACTUAL HISTORY
On June 8, 2011 appellant, then a 53-year-old city carrier, filed an occupational disease
claim alleging that she sustained a foot condition in the performance of duty. Her duties
included being on her feet for most of the day, five to six days a week. Appellant had a history
of neuritis/neuroma of the left first metatarsal space; capsulitis; with pain in the left second
metatarsal phalangeal joint. She alleged that her injury began on March 15, 2010 and she first

became aware of its relation to her work on July 29, 2010. Appellant was terminated from
employment on September 16, 2010.
By letters dated June 16, 2011, OWCP advised appellant and the employing
establishment that additional factual and medical evidence was needed.
In a letter dated June 22, 2011, Frank Nagle, a health and resource management
specialist, with the employing establishment controverted the claim. He explained that appellant
had a history of being a less than a stellar employee and was issued a letter of termination on
September 16, 2010. Mr. Nagle noted that her termination was found to be just and proper.
Appellant never informed the employing establishment that she had a problem with her feet
related to her employment duties. Although she requested light duty because of her feet and
provided a medical report, the condition was not associated with her job duties. Mr. Nagle
contended that appellant’s claim was filed in retaliation for her termination.
By decision dated July 20, 2011, OWCP denied appellant’s claim. It found that the
medical evidence did not establish that her left foot condition was related to established
work-related events.
On March 22, 2012 counsel requested reconsideration and submitted medical evidence.
In a June 13, 2011 report, Dr. Jefferey S. Katz, a podiatrist, noted that appellant was seen on
July 29, 2010 with complaints of a painful left foot. Examination showed a painful swollen area
behind the left second toe, which was present for approximately one month. Appellant denied
any other joint pain and took medication for her pain and tried staying off the foot as much as
possible. She described the pain as shooting and throbbing at times, through the tip of the
second toe. Dr. Katz noted that appellant denied any recent injuries to the left foot. Appellant
demonstrated a cavus high arched poor shock absorbing foot type and had a prior surgical history
of left bunionectomy in February 2003. She was also diagnosed with acute capsulitis of the left
second metatarsal phalangeal joint and neuritis/neuroma of the left first intermetatarsal space.
Appellant was seen for evaluation from July 29, 2010 through January 6, 2011. Dr. Katz stated
that x-rays obtained on July 29, 2010 revealed: no fractures or dislocations; evidence of previous
bunion surgery resulting in a mild elongation of the second metatarsal bone in relation to the first
metatarsal bone; no narrowing of the joint space at the second metatarsal phalangeal joint; no
irregularity at the second metatarsal phalangeal joint and no osseous pathology was noted.
Appellant’s treatment included local anesthetic and steroid solution injections, therapeutic nerve
blocks, shoe modifications, orthotic therapy, nonsteroidal anti-inflammatory drugs, ice and rest.
Dr. Katz stated:
“As a result of the cavus, high arched foot type, elongation of the second
metatarsal bone in comparison to the first metatarsal bone and the type of duties
the patient performs during the course of a workday. I feel that she is
experiencing repetitive microtrauma to the left second metatarsal phalangeal joint.
With a reasonable degree of certainty the condition that [she is experiencing] is
due to the cavus high arched foot type and the activities she performs in the
course of her performing work[-]related duties.”

2

By decision dated June 22, 2012, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant review of its prior decision.
In a letter dated July 20, 2012, counsel requested reconsideration and provided additional
evidence.
In a July 20, 2012 report, Dr. Katz explained that he reviewed the job duties that
appellant performed over the 10 years preceding her injury. For six days a week, appellant
walked a mail delivery route of approximately 8 to 10 miles. Dr. Katz related that her work shift
was 8- to 10-hour shifts a day, depending on overtime, 6 to 7 hours of which were spent walking
and standing for almost the entire shift on mostly concrete or asphalt. This involved carrying
mail on a daily basis in a satchel typically weighing up to 35 pounds and at least one day a week
weighing as much as 50 pounds. Dr. Katz stated that his opinion remained unchanged. He
advised that the aforementioned duties caused appellant to experience repetitive microtrauma to
the left second metatarsal phalangeal joint. This repetitive microtrauma with appellant’s cavus,
high arched foot type, caused her diagnosed acute capsulitis of the left second metatarsal
phalangeal joint and neuritis/neuroma of the left first metatarsal space. As in his June 13, 2011
report, Dr. Katz’ opinion was to a reasonable degree of medical certainty. A copy of a July 12,
2012 certification from appellant, which described her duties accompanied his report.
In an October 16, 2012 decision, OWCP accepted the claim for acute capsulitis of the
second left metatarsal joint and neuritis/neuroma of the left first metatarsal space. It found that
appellant was not entitled to wage-loss compensation as she did not stop work until her
employment was terminated. OWCP found that the medical evidence did not support that she
was disabled due to her medical condition.
In a letter dated October 11, 2013, counsel requested reconsideration.
In an
October 10, 2013 report, Dr. Katz noted that appellant was under his care since July 29, 2010
with the diagnosis of capsulitis/pain in the joint of the left second metatarsophalangeal and
neuroma of the left first intermetarsal space. Appellant also presented with a cavus, high arched
foot deformity. Dr. Katz opined that her medical conditions interfered with her ability to
efficiently perform her job duties as a city letter carrier. He noted that appellant’s difficulties in
complying with her regular job requirements were most likely caused by her medical conditions.
Dr. Katz explained that, if she was allowed to perform light or modified duty, as opposed to her
regular job duties, she would have been capable and successful in performing such duties
efficiently. He indicated that appellant’s exposure to the job duties outlined in his prior reports
caused her to experience repetitive microtrauma to the left second metatarsophalangeal joint and
neuritis/neuroma of the left first intermetatarsal space. As a result of appellant’s foot type,
appellant would not be able to resume her regular job duties. Dr. Katz explained that, if she was
afforded a light-duty or modified-duty position, she should be able to resume employment. He
recommended walking or standing limited to no more than 15 minutes per hours and squatting
and pushing or pulling activities limited to approximately 75 pounds in containers with wheels.
He completed a work capacity restriction. OWCP also received an August 21, 2013
supplemental certification from appellant describing her work duties.

3

By decision date December 9, 2013, OWCP denied modification of the prior decision. It
found insufficient medical evidence to establish that appellant was disabled due to her medical
condition as of September 16, 2010.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative and substantial medical opinion evidence.1 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.2
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.3 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.4
The Board has held that when a claimant stops work for reasons unrelated to the accepted
employment injury, there is no disability within the meaning of FECA.5
ANALYSIS
On October 16, 2012 OWCP accepted appellant’s claim for acute capsulitis of the second
left metatarsal joint and neuritis/neuroma of the left first metatarsal space. It found that she was
not entitled to compensation for wage loss. The employing establishment reported that appellant
did not stop work until her employment was terminated on September 16, 2010 and there was
insufficient medical evidence to support that she was disabled due to her medical condition.
In support of her claim, appellant submitted evidence from Dr. Katz.
In an
October 10, 2013 report, Dr. Katz opined that her left foot condition interfered with her ability to
efficiently perform her job duties as a city letter carrier and added that her difficulties in
complying with her regular job requirements were most likely caused by her medical conditions.
1

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

2

Dean E. Pierce, 40 ECAB 1249 (1989).

3

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

4

Jefferson, supra note 1.

5

See John I. Echols, 53 ECAB 481 (2002); John W. Normand, 39 ECAB 1378 (1988).

4

He noted that, if appellant was allowed to perform light or modified duty as opposed to her
regular job duties, she would have been capable and successful in performing those duties
efficiently. Dr. Katz stated that her exposure to the job duties caused her to have repetitive
microtrauma to the left second metatarsophalangeal joint and neuritis/neuroma of the left first
intermetatarsal space. He opined that as a result of appellant’s foot type, he did not believe that
she would be able to resume her regular job duties. While Dr. Katz stated that her condition was
work related, he did not offer any specific opinion as to her disability beginning
September 16, 2010. He did not explain why appellant was able to perform her regular duties
until she was terminated on September 16, 2010 or why, thereafter, she was disabled due to her
accepted conditions. As noted, when a claimant stops work for reasons unrelated to the accepted
employment injury, there is no disability within the meaning of FECA.6 The opinion of Dr. Katz
is of limited probative value and insufficient to establish compensable disability beginning
September 16, 2010.
In subsequent reports, Dr. Katz did not specifically address appellant’s disability
beginning September 16, 2010 or provide an explanation as to why she was able to perform her
regular work until the time of her termination for reasons unrelated to her accepted work injury.
As the medical opinion evidence does not establish that the accepted employment injury caused
total disability for work from September 16, 2010, the Board finds that she has not met her
burden of proof. Accordingly, the Board will affirm OWCP’s December 9, 2013 decision
denying appellant’s wage-loss compensation beginning September 16, 2010.
On appeal, counsel argued that the accepted condition supported that appellant was
unable to complete her job duties and as a result she was terminated. However, as found above,
the medical evidence is insufficient to establish appellant’s claim for compensable disability.
Furthermore, there is no factual evidence showing that her termination from her job was due to
her accepted conditions. Appellant may submit evidence or argument with a written request for
reconsideration 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 in establishing that she
was disabled commencing September 16, 2010, due to her accepted work-related injuries.

6

See id.

5

ORDER
IT IS HEREBY ORDERED THAT the December 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING
& DISTRIBUTION CENTER, Jackson, MS,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0218
Issued: May 15, 2020

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 November 7, 2018 appellant, through counsel, filed a timely appeal from a
September 4, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On May 2, 2016 appellant, then a 52-year-old lead mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral plantar fasciitis,
neuralgia, and neuritis of her feet due to factors of her federal employment, including the constant
standing and walking on concrete surfaces required by her job.3 She did not stop work at the time
she filed her claim. OWCP accepted appellant’s claim for arthritis of both feet.4
Appellant received regular treatment for her foot problems from Dr. Rose Sotolongo, a
podiatrist. In a May 26, 2016 report, Dr. Sotolongo noted that appellant chiefly complained of
pain and swelling in both feet. She advised that her physical examination of appellant’s lower
extremities revealed stable vascular status, no edema up to the ankle, no venous stasis changes,
normal vibratory and sharp dull sensation, and normal muscle mass. Dr. Sotolongo diagnosed
pain, idiopathic neuropathy, and osteoarthritis of both feet. She indicated that appellant was
disabled from work.
On October 3, 2016 Dr. Sotolongo noted that appellant reported that she had gout and that
she had been diagnosed with degenerative arthritis of the feet in 2009. She diagnosed osteoarthritis
of both feet (right worse than left) and “pain in joints.” In a November 17, 2016 report,
Dr. Sotolongo indicated that appellant had degenerative arthritis in “multiple joints” and found
that her pain and reported inability to bend limited her activities of daily living and prevented her
from performing her current job duties. In a letter dated March 16, 2017, she indicated that
appellant had reached maximum medical improvement (MMI).
On April 13, 2017 appellant filed a claim for a schedule award (Form CA-7) due to her
accepted employment conditions.
In an April 18, 2017 development letter, OWCP requested that appellant submit a report
from her attending physician which evaluated permanent impairment in accordance with the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to submit the necessary
evidence.

3

Appellant noted that she first became aware of her claimed condition on August 1, 2009 and first realized its
relation to her federal employment on February 9, 2015.
4

Appellant stopped work for various periods and, although OWCP initially denied her claim for wage-loss
compensation benefits, it later paid her such benefits on the supplemental rolls for intermittent disability from work
between October 3, 2016 and January 20, 2017.
5

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

2

Appellant submitted a June 23, 2017 report from Dr. Sotolongo who noted that appellant
had pain in her limbs, peroneal tendinitis, arthralgia (joint pain), enthesopathy, and hammertoes
bilaterally. Dr. Sotolongo noted that appellant reported that she was limited in her daily activities
and was unable to work on a sustained basis and that her chronic symptoms included chronic
bilateral foot and ankle pain. She noted that appellant’s arthralgia and pain from stenosis was
“determined to be a permanent impairment of the lower legs” and advised that she would be unable
to stand on concrete work ﬂoors. Dr. Sotolongo indicated that appellant’s foot and ankle disability
index score was 55.67,6 and noted, “It has been determined that she has a five percent impairment
rating.” Appellant also submitted one page of an incomplete and undated report in which
Dr. Sotolongo noted in the diagnosis section of the report, “Permanent impairment -- diagnosis
nerve injury (five percent) to lower extremity impairment.”7
On July 11, 2017 OWCP routed Dr. Sotolongo’s reports, a statement of accepted facts
(SOAF), and the case file to Dr. William Tontz, Jr., a Board-certified orthopedic surgeon serving
as an OWCP district medical adviser (DMA), for review and a determination regarding whether
appellant sustained permanent impairment under the standards of the sixth edition of the A.M.A.,
Guides.
In an August 8, 2017 report, the DMA reviewed the case file, including Dr. Sotolongo’s
reports, and noted that pursuant to Table 16-2 (Foot and Ankle Regional Grid) beginning on page
501 of the sixth edition of the A.M.A., Guides, appellant’s diagnostic criteria (including
contusions) fell under class 0 for the class of diagnosis (CDX) which corresponded to zero percent
permanent impairment of each lower extremity.8
OWCP requested that Dr. Sotolongo review the DMA’s August 8, 2017 report and
comment on his opinion that appellant had zero percent permanent impairment of each lower
extremity. It also requested that she submit a report which contained an impairment rating
calculated in accordance with the standards of the sixth edition of the A.M.A., Guides. In a letter
dated October 3, 2017, Dr. Sotolongo indicated that she would not be changing her opinion with
regard to the impairment rating provided for appellant.
On November 27, 2017 OWCP referred appellant to Dr. Daniel P. Dare, a Board-certified
orthopedic surgeon, for a second opinion evaluation. It requested that he examine appellant and
provide an opinion on permanent impairment under the standards of the sixth edition of the
A.M.A., Guides.
In a January 8, 2018 report, Dr. Dare discussed appellant’s factual and medical history,
including the nature of her employment injury and the history of her medical treatment. He noted
6

Dr. Sotolongo attached a copy of a May 18, 2017 report in which this score was calculated. The report actually
lists appellant’s score as 56.7, rather than 55.67.
7

Appellant also submitted incomplete and unsigned reports, dated October 21, 2014 and December 12, 2016, which
contained Dr. Sotolongo’s name in their headings.
8
The DMA indicated that appellant reached MMI on June 23, 2017 and that he disagreed with the comments of
Dr. Sotolongo regarding the extent of appellant’s permanent impairment.

3

findings on physical examination of normal gait, normal stride length, no antalgic gait, slight
swelling over the sinus tarsi area of both feet without tenderness, minimal swelling in both feet,
decreased two-point discrimination of the feet, and decreased sensation of the feet and fingers.
Range of motion (ROM) testing of the ankles revealed, on a bilateral basis, 30 degrees of plantar
flexion, 0 degrees of dorsiflexion, 5 degrees of eversion, and 5 degrees of inversion. Dr. Dare
diagnosed history of arthritis in both feet (stable), diffuse peripheral neuropathy, rheumatoid
arthritis principally involving the hands, degenerative arthritis (generalized), hypertension, and
glaucoma.9 He rated appellant under the diagnosis-based impairment (DBI) rating method for
bilateral foot arthritis noting that many of her problems related to nonaccepted conditions of
rheumatoid arthritis, degenerative arthritis other than in the feet, peripheral neuropathy, and spinal
problems. Dr. Dare advised that, utilizing Table 16-2 beginning on page 501 of the sixth edition
of the A.M.A., Guides, consideration of appellant’s diagnostic criteria showed that she fell under
class 0 for CDX on a bilateral basis, a finding which corresponded to zero percent permanent
impairment of each lower extremity. He opined that the five percent permanent impairment rating
provided by Dr. Sotolongo was for conditions not accepted as work related.
OWCP again referred the case to the DMA and requested that he provide an opinion on
permanent impairment after reviewing Dr. Dare’s January 8, 2018 report. On February 20, 2018
the DMA reviewed the relevant medical evidence of record and noted that, pursuant to Table 16-2
beginning on page 501 of the sixth edition of the A.M.A., Guides, appellant’s diagnostic criteria
(including contusions) fell under class 0 for the CDX which corresponded to zero percent
permanent impairment for each lower extremity. He indicated that he disagreed with the
comments of Dr. Sotolongo regarding permanent impairment. The DMA concurred with
Dr. Dare’s impairment rating of zero percent permanent impairment of each lower extremity
pursuant to the sixth edition of the A.M.A., Guides.10
By decision dated March 16, 2018, OWCP denied appellant’s claim for a schedule award.
It found that the opinions of Dr. Dare and the DMA established that she had no permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
On March 27, 2018 appellant, through counsel, requested a telephonic oral hearing before
a representative of OWCP’s Branch of Hearings and Review. During a hearing held on
July 23, 2018, counsel argued that the medical evidence of record established that appellant had
permanent impairment of her lower extremities due to the accepted condition of arthritis of both
feet.
By decision dated September 4, 2018, OWCP’s hearing representative affirmed the
March 16, 2018 decision.

9

Dr. Dare noted that appellant reached MMI on June 23, 2017.

10

The DMA indicated that appellant reached MMI on June 23, 2017.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 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 impairment shall be determined.
For consistent results and to ensure equal justice under the law for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has
concurred in such adoption.13 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards.14
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).15 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition as CDX, which is then adjusted by grade modifiers based on the grade
modifier for functional history (GMFH), grade modifier for physical examination (GMPE), and
grade modifier for clinical studies (GMCS).16 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).17 Evaluators are directed to provide reasons for their impairment
rating choices, including the choices of diagnoses from regional grids and calculations of modifier
scores.18
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a January 8, 2018 report, second opinion physician Dr. Dare reported the findings of the
physical examination he conducted on that date. He diagnosed history of arthritis in both feet
(stable), diffuse peripheral neuropathy, rheumatoid arthritis principally involving the hands,
degenerative arthritis (generalized), hypertension, and glaucoma. Dr. Dare rated appellant under
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

14

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 4 (January 2010).
15
A.M.A., Guides (6th ed. 2009), page 3, Section 1.3, The International Classification of Functioning, Disability,
and Health (ICF): A Contemporary Model of Disablement.
16

Id. at 497-522.

17

Id. at 521.

18

Id. at 23-28.

5

the DBI rating method for bilateral foot arthritis and properly noted that many of her problems
related to nonaccepted conditions of rheumatoid arthritis, degenerative arthritis other than in the
feet, peripheral neuropathy, and spinal problems. He correctly advised, utilizing Table 16-2
beginning on page 501 of the sixth edition of the A.M.A., Guides, that consideration of appellant’s
diagnostic criteria showed that she fell under class 0 for CDX on a bilateral basis, a finding which
corresponded to zero percent permanent impairment of each lower extremity.19 Dr. Dare correctly
determined that there was no ratable permanent impairment related to the accepted conditions. He
further opined that the five percent permanent impairment rating provided by Dr. Sotolongo was
for conditions not accepted as work related.20 The Board has found that where a claimant does
not demonstrate permanent impairment caused by the accepted employment injury, the claim is
not ripe for consideration of any nonoccupational or preexisting impairment. 21
In a February 20, 2018 report, the DMA reviewed the evidence of record, including the
January 8, 2018 report of Dr. Dare, and conducted a permanent impairment evaluation under the
DBI rating method of the sixth edition of the A.M.A., Guides. Utilizing Table 16-2, he determined
that appellant’s foot condition for each lower extremity fell under class 0 for the CDX, which in
turn corresponded to zero percent permanent impairment of each lower extremity. The DMA
advised that he agreed with the rating method of Dr. Dare, as delineated in his January 8, 2018
report, and with his conclusion that appellant had zero percent permanent impairment of her lower
extremities. He also noted that he disagreed with the comments of Dr. Sotolongo regarding
permanent impairment. The Board finds that the DMA also properly determined that there was
no ratable permanent impairment related to the accepted conditions.
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, which establishes that appellant has permanent impairment of a scheduled
member or function of the body. Both Dr. Dare and the DMA properly applied the standards of
the sixth edition of the A.M.A., Guides while Dr. Sotolongo did not provide an opinion in
accordance with the sixth edition of the A.M.A., Guides.22 Thus, the Board finds that the opinions
of Dr. Dare and the DMA represent the weight of medical opinion evidence. OWCP correctly
relied on their assessments that appellant did not sustain permanent impairment of a scheduled
member or function of the body warranting a schedule award.23

19

Id. at 501-08, Table 16-2.

20

In a June 23, 2017 report, Dr. Sotolongo indicated that appellant’s arthralgia and pain from stenosis was
“determined to be a permanent impairment of the lower legs” and she noted, “It has been determined that she has a
five percent impairment rating.” Appellant also submitted one page of an incomplete and undated report in which
Dr. Sotolongo noted in the diagnosis section of the report, “Permanent impairment -- diagnosis nerve injury (five
percent) to lower extremity impairment.”
21

See C.T., Docket No. 18-0544 (issued May 22, 2019); Thomas P. Lavin, 57 ECAB 353 (2006).

22
The Board notes that Dr. Sotolongo made no reference to the A.M.A., Guides in providing her impairment rating
and therefore her opinion is of little probative value. See A.C., Docket No. 18-1306 (issued October 18, 2019); Paul R.
Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (finding that medical reports not explaining
how the A.M.A., Guides are utilized are of little probative value).
23

See M.T., Docket No. 11-1244 (issued January 3, 2012).

6

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2020
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 08-1069
Issued: September 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 22, 2008 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated March 5 and September 26, 2007. Under 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 is entitled to a schedule award for greater than the five
percent permanent impairment of the right upper extremity already awarded.
FACTUAL HISTORY
This is the second appeal before the Board. On March 28, 2002 appellant, a 48-year-old
service representative, injured her right wrist and left knee. She filed a claim for benefits, which
the Office accepted for left knee strain, contusion of the left knee and contusion of the right wrist.
Appellant underwent arthroscopic surgery for the right wrist on January 14, 2003. In a report
dated September 2, 2004, Dr. Nicholas Diamond, an osteopath in orthopedic surgery, found that
appellant had a right upper extremity impairment of 26 percent and a left lower extremity

impairment of 11 percent pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (fifth edition) (A.M.A., Guides). He made the following
impairment ratings: Sensory deficit right radial nerve, 4 percent impairment under Table 16-10,
page 482 and Table 16-15, page 492; right grip strength deficit, 20 percent impairment under
Table 16-32 and Table 16-34, page 509. This amounted to a combined right upper extremity
impairment of 23 percent impairment. Dr. Diamond added 3 percent impairment for pain
pursuant to Table 18-1, page 574, for a total 26 percent right upper extremity impairment.
Using Dr. Diamond’s findings, an Office medical adviser found that appellant had a five
percent permanent impairment of the right upper extremity and an eight percent permanent
impairment of the left lower extremity pursuant to the A.M.A., Guides. He disallowed
Dr. Diamond’s rating based on strength grip, finding that under section 16.8a at page 508 of the
A.M.A., Guides, decreased strength calculations cannot be rated together with a rating based on
pain. Regarding the right upper extremity, the Office medical adviser found that appellant had a
5 percent impairment based on radial sensory loss, the maximum rating under Table 16-15 at
page 492; this 5 percent rating translated to a Grade 3 impairment, 60 percent, at Table 16-10,
page 482. He then multiplied 60 times the five percent impairment for a three percent radial
impairment. The Office medical adviser calculated an additional two percent pain-related
impairment pursuant to Table 18.1 at page 574, for a total right upper extremity impairment of
five percent. On September 6, 2005 the Office granted appellant a schedule award for a five
percent permanent impairment to his right upper extremity and an eight percent permanent
impairment to his left lower extremity for the period September 2, 2004 to May 30, 2005, for a
total of 38.64 weeks of compensation. By hearing representative decision dated March 1, 2006,
an Office hearing representative affirmed the September 6, 2005 schedule award decision.
In a January 24, 2007 decision,1 the Board set aside the Office’s September 6, 2005 and
March 5, 2006 decisions. The Board, noting that the Office medical adviser had combined a
three percent sensory deficit impairment with an additional two percent impairment for pain
pursuant to Chapter 18, stated that section 18.3b of the A.M.A., Guides cautions examiners
against using this chapter to rate pain-related impairment for any condition that can be
adequately rated on the basis of the body and organ impairment systems given in other chapters
of the A.M.A., Guides.2 The Board found that the evidence of record did not explain why
appellant would be entitled to an additional rating for pain pursuant to Chapter 18. It therefore
set aside the Office’s finding with regard to the degree of impairment to appellant’s right upper
extremity and remanded to the Office for an explanation as to why and how appellant’s pain was
rated pursuant to Chapter 18. The complete facts of this case are set forth in the Board’s
January 24, 2007 decision and are herein incorporated by reference.3

1

Docket No. 06-1735 (issued January 24, 2007).

2

A.M.A., Guides 571; Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700
Exhibit 4 (June 2003).
3

The award for an eight percent left lower extremity impairment is not at issue before the Board.

2

In a January 30, 2007 report, the Office medical adviser asserted that he rated the
additional two percent for pain for two reasons; upper extremity pain and sensory loss. He
stated:
“The first reason is the loss of the radial sensory innervation that is related to the
surgical procedure and interruption of the sensory nerve fibers; i.e., a specific
neurologic lesion that has loss of sensation of the superficial radial nerve.
“However, in addition to this loss of sensory innervation, [appellant] also has a
positive Finkelstein’s test as noted in Dr. Diamond’s report. The Finkelstein’s
test is a test whereby the thumb is flexed and adducted to put stress on the tendon
sheaths that are associated with de Quervain’s tendinitis of the thumb. This pain
on range of motion of the thumb is of a mechanical nature due to the pain and
inflammation associated with the tendon sheath swelling that is found in
de Quervain’s disease; i.e., tendinitis.
“Therefore, this pain is associated with a totally different etiology than the actual
partial destruction of the superficial radial nerve as a result of the operative
procedure. The pain associated with de Quervain’s disease is mechanical in
nature and related to stretching of the sensitive tendon sheath. Therefore,
although the A.M.A., Guides sometimes combines pain with sensory loss, in this
instance the pain for which I recommended two percent is a totally separate
mechanism than the superficial radial nerve damage.
“Therefore, it was my recommendation that utilizing page 574, [F]igure 18-1, that
this claimant was entitled to a pain award due to the actual ongoing tendinitis of
the thumb associated with de Quervain’s disease. The maximum that can be
awarded is three percent. I recommended two percent, one percent less than the
maximum.
“When pain awards are made, they are added and not combined with the use of
the Combined Values Chart, page 604. Therefore, the Combined Values Chart
was not utilized, and the two percent was added to the three percent with a
recommendation of five percent for the right upper extremity.”
By decision dated March 5, 2007, the Office found based on the Office medical adviser’s
supplemental report that appellant was entitled to no greater than a five percent right upper
extremity impairment schedule award.
By letter dated March 12, 2007, appellant’s attorney requested an oral hearing, which was
held on July 18, 2007. Appellant did not submit any additional medical evidence.
By decision dated September 26, 2007, an Office hearing representative affirmed the
March 12, 2007 decision.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 sets forth
the number of weeks of compensation to be paid for permanent loss, or loss of use of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.5 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating
schedule losses.6
ANALYSIS
Following the Board’s January 20, 2007 decision, the Office medical adviser submitted a
thorough, well-reasoned explanation to support his rating of an additional two percent
impairment based on pain. He provided two reasons for his pain rating: the loss of the radial
sensory innervation related to appellant’s surgical procedure and interruption of the sensory
nerve fibers, a specific neurologic lesion which included loss of sensation of the superficial
radial nerve; and a positive Finkelstein’s test as noted in Dr. Diamond’s report. The Office
medical adviser properly noted that this positive test indicated that appellant had pain on range of
motion of the thumb, pain and inflammation associated with the tendon sheath swelling found in
de Quervain’s disease; i.e., tendinitis. Dr. Diamond explained that this pain is associated with a
totally different etiology than the actual partial destruction of the superficial radial nerve as a
result of the operative procedure. Therefore, the Office medical adviser’s recommended two
percent rating for pain was based on an entirely separate calculation than that for the superficial
radial nerve damage. He therefore accorded a two percent pain award, or one percent less than
the maximum three percent award as provided for under Figure 18-1 at page 574, for ongoing
tendinitis of the thumb associated with de Quervain’s disease. The Office medical adviser then
properly added the three percent and two percent pain awards for a total five percent impairment
for the right upper extremity. The Board finds that the Office properly credited the Office’s
medical adviser’s supplemental January 30, 2007 report, which was sufficiently well
rationalized, based on reasoned medical opinion and provides sufficient support for an additional
two percent impairment for pain. This finding was proper and supported by the applicable
protocols of the A.M.A., Guides. The Board affirms the March 5, 2007 Office decision.
Subsequent to the Office’s decision, appellant requested an oral hearing but did not
submit any additional medical evidence. She has not established that she is entitled to a schedule
award for more than a five percent impairment of the right upper extremity.
Therefore, as there is no other probative medical evidence establishing that appellant
sustained any additional permanent impairment, the Board affirms the Office’s March 5 and
4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

5

5 U.S.C. § 8107(c)(19).

6

20 C.F.R. § 10.404.

4

September 26, 2007 decisions finding that appellant was not entitled to more than a five percent
permanent impairment to her right upper extremity.
CONCLUSION
The Board finds that appellant has no more than a five percent impairment of the right
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the Office’s September 26 and March 5, 2007
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: September 19, 2008
Washington, DC

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

David S. Gerson, 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.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 08-1903
Issued: April 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 20, 2008 denying her traumatic injury
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 on September 21,
2007 in the performance of duty.
FACTUAL HISTORY
On September 21, 2007 appellant, then a 39-year-old letter carrier, filed a traumatic
injury claim alleging that she sustained injuries to her left wrist, arm, shoulder and neck that day
when her supervisor assaulted her on the workroom floor. She indicated that her supervisor
“grabbed to take an ink pen from the left shirt pocket. A struggle ensued. She began to jerk me
back and forth to get my pen from my pocket.” On the claim form, the employing establishment

stated that appellant grabbed the supervisor’s arm. She stopped work on September 22, 2007
and has not returned.
In a September 21, 2007 report, appellant advised that she sustained injury after
struggling with Misty Berry, her supervisor, for her pen. When Ms. Berry reached for
appellant’s pen from her shirt pocket she grabbed Ms. Berry’s arm. Appellant indicated that they
struggled for the pen and that Ms. Berry assaulted her. The accident report noted that appellant
was diagnosed with a neck strain when she was examined by a physician at U.S. Health Works
that day. In a September 21, 2007 report, Dr. Glenn Ault, a Board-certified colon and rectal
surgeon with U.S. Health Works, diagnosed cervical strain. He noted that appellant wore a brace
on her left wrist due to an April 30, 2007 injury. Dr. Ault reported a history of injury as
appellant being assaulted by a supervisor at work. Appellant was grabbed by her supervisor,
who was trying to take a pen from her pocket and they twisted/grabbed for a few moments.
Dr. Ault noted that, although appellant stated that her supervisor tried to grab a pen from her
pocket, it was unclear as to how appellant’s neck, arm, wrist were injured due to trauma.
In a September 21, 2007 investigative memorandum, Supervisor Gerald N. Padilla listed
his findings: “a/supervisor (acting supervisor) Ms. Berry reached out to pull an ink pen from
[appellant’s] shirt pocket. Witnesses E. Villegas[, a union steward,] and J[ose] Martinez [, a
carrier,] said [appellant] then reached out and grabbed A/supervisor’s Ms. Berry’s arm to keep
her from taking the pen. [Appellant] had just been denied to change her reporting time by
Ms. Berry and she did not immediately report the injury until she left work. Employee states that
she was assaulted by Ms. Berry but witness’s state otherwise.”
In a September 22, 2007 investigative interview, Ms. Berry stated that on September 21,
2007 she had reached into appellant’s pocket to get a pen but denied being involved in a physical
altercation. When she reached for appellant’s pen, appellant flinched back said “Misty” and
covered her chest. Ms. Berry denied touching appellant. She stated that when appellant flinched
back, appellant grabbed her left hand with both of her hands. Ms. Berry denied gaining
possession of appellant’s pen and stated carrier Martinez handed her his pen. She indicated that
she had been friends with appellant for years and that they normally share things.
In a September 22, 2007 statement, Mr. Villegas stated that appellant had just been
denied a change in schedule by Ms. Berry. As he was approaching Ms. Berry’s desk, he saw
Ms. Berry reach into appellant’s upper left shirt pocket and attempt to grab something.
Appellant pulled away and said “don’t do that.” Mr. Villegas indicated that it appeared to him
that Ms. Berry’s hand remained as she continued to grab at something. Appellant again said
“don’t do that” and she took Ms. Berry’s hand out of her pocket. Mr. Villegas stated that
Ms. Berry then asked for a pen and Mr. Martinez, who was seated in front of Ms. Berry and
witnessed the event, offered Ms. Berry a pen. He indicated that Ms. Berry had started searching
for a pen in her drawer.
In a September 24, 2007 statement, Mr. Martinez stated that he was standing by
Ms. Berry’s desk on September 21, 2007 and saw appellant approach Ms. Berry for some kind of
paper work. As Ms. Berry reached for appellant’s pen, without looking, she grabbed appellant’s
left top pocket. Mr. Martinez stated that appellant pulled away and said, “You are hurting me.”
He indicated that he then walked away to get something from the breakroom.

2

By letter dated October 10, 2007, the Office advised appellant that the evidence received
was insufficient to establish her claim. It requested a comprehensive medical report from a
treating physician which provided a reasoned explanation as to how the September 21, 2007
incidents contributed to her claimed injury.
In a September 24, 2007 report, Dr. Jin Xiao, a physician Board-certified in occupational
medicine with Kaiser Permanente, noted that appellant was previously seen for chronic neck and
shoulder pain. Appellant noted that she got into a verbal altercation with her supervisor
regarding her work assignment on September 21, 2007. She alleged that her supervisor
attempted to get a pen from the pocket of her shirt but she refused and held her pen. They went
back and forth a few times. Appellant claimed that she started to have severe pain in her neck
radiating to her left shoulder and arm. Dr. Xiao noted that appellant first reported a verbal
altercation with her supervisor which then became somewhat physical per her history. He
advised that altercations could cause someone to have physical discomfort or pain, particularly
neck pain. Dr. Xiao opined that “unless proof of the incident did not occur, appellant probably
suffered from exacerbation of chronic neck pain and sustained mild cervical strain due to this
incident.” He opined that appellant was temporary totally disabled for two days followed by
light duty with work restrictions. On January 29, 2008 Dr. Xiao advised that appellant’s cervical
strain had resolved with no residuals.
By decision dated March 20, 2008, the Office denied appellant’s claim finding that the
September 21, 2007 incident did not occur in the manner alleged by appellant. It was not
accepted that an assault occurred as alleged and the medical evidence did not contain an accurate
description of the injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees Compensation Act1 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 the Act; 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 and/or specific condition for which compensation is
claimed are causally related to the employment injury.2 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.4 Second, the employee
1

5 U.S.C. §§ 8101-8193.

2

Anthony P. Silva, 55 ECAB 179 (2003).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

4

Delphyne L. Glover, 51 ECAB 146 (1999).

3

must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.5
Verbal or physical altercations that occur because of disputes over work matters are
covered as arising out of employment.6 There is no provision in the Act authorizing denial of
compensation because the employee was an aggressor or initiator or otherwise did something
imputing culpability on his or her part.7
ANALYSIS
On September 21, 2007 there was physical contact between appellant and Ms. Berry.
The evidence establishes that Ms. Berry reached into appellant’s shirt pocket to get a pen. This
was verified by Ms. Berry and the other witnesses present, Mr. Villegas and Mr. Martinez. The
evidence supports that appellant grabbed Ms. Berry’s arm or hand to keep her from taking the
pen. The evidence supports that this physical contact arose from the employment in that
appellant and Ms. Berry had just completed a discussion regarding appellant’s work schedule.
There is no evidence that any animosity or dispute giving rise to the physical contact was
imported into the workplace from appellant’s domestic or private life.8 The Board finds that the
incident in which Ms. Berry sought to take a pen from appellant’s pocket arose in the course of
employment. Appellant has established that she had physical contact with Ms. Berry. The
Board will review the medical evidence to determine whether appellant established that she
sustained an injury as a result of the employment incident. In a September 21, 2007 report,
Dr. Ault diagnosed cervical strain but rendered no opinion on causation. Rather, he advised it
was unclear as to how appellant’s neck, arm or wrists were injured when her supervisor tried to
grab a pen from her pocket. Dr. Xiao noted that appellant’s description of a verbal altercation
became physical when the supervisor attempted to get a pen from the pocket of appellant’s shirt.
While Dr. Xiao opined that appellant “probably” suffered exacerbation of chronic neck pain and
sustained mild cervical strain due to this incident, his opinion is based in part on an inaccurate
factual history as it has not been established that appellant and Ms. Berry struggled by going
“back and forth a few times.” His opinion is of diminished probative value.9 Furthermore,

5

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

6

Allan B. Moses, 42 ECAB 575 (1991).

7

Barry Himmelstein, 42 ECAB 423 (1991); Robert L. Williams, 1 ECAB 80 (1948). Section 8102(a) provides
that compensation is not payable if the injury was caused by willful misconduct or by the employee’s intention to
bring about the injury or death of himself or of another, but these affirmative defenses must be invoked by the Office
in its original adjudication of a claim. Latanya M. Cooper, 51 ECAB 238 (1999).
8

See A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006) (when animosity or a dispute which
culminates in an assault is imported into the employment from a claimant’s domestic or private life, the assault does
not arise out of employment).
9

See M.W., 57 ECAB 710 (2006) (medical conclusions based on an inaccurate or incomplete factual history are
of diminished probative value).

4

Dr. Xiao’s opinion is also of limited probative value as he couched his opinion in speculative
terms noting that appellant “probably” had a mild cervical strain due to the incident.10
No other medical evidence provides a reasoned explanation regarding how Ms. Berry’s
reaching into appellant’s pocket on September 21, 2007 caused or aggravated a diagnosed
medical condition. Consequently, the medical evidence is insufficient to establish that the
September 21, 2007 work incident caused an injury.
CONCLUSION
The Board finds the evidence establishes that Ms. Berry had physical contact with
appellant on September 21, 2007 when she reached into appellant’s shirt pocket to get a pen.
However, the medical evidence is insufficient to establish that this incident caused an injury.11
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).
11

Following the Office’s March 20, 2008 decision, appellant submitted additional evidence to the Office.
However, the Board may not consider such evidence as its review is limited to the evidence that was in the record at
the time of the Office’s decision. See 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Drum, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1440
Issued: March 12, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On July 27, 2020 appellant filed a timely appeal from a June 17, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 20-1440.
On November 27, 2019 appellant, then a 50-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her right leg, right hip,
and back when a sit-stand workstation fell onto her right leg while in the performance of duty. On
the reverse side of the claim form, the employing establishment acknowledged that appellant was
injured in the performance of duty. Appellant stopped work on November 26, 2019. OWCP
assigned the claim OWCP File No. xxxxxx815.
In support of her claim, appellant submitted November 27, 2019 emergency department
discharge notes and reports, dated December 3 and 13, 2019, from Dr. Bruce L. Baird, a Board1

The Board notes that, following the June 17, 2020 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.

certified orthopedic surgeon who advised that the appellant should remain off work until further
notice.
In a development letter dated January 3, 2020, OWCP indicated that when appellant’s
claim was first received it appeared to be a minor injury that resulted in minimal or no lost time
from work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or otherwise challenge the case, payment of a limited amount of medical
expenses was administratively approved. It explained that it had reopened the claim for
consideration of the merits because appellant had not returned to full-duty work. OWCP requested
additional factual and medical evidence in support of her claim and provided a questionnaire for
her completion. It afforded appellant 30 days to submit the necessary evidence.
OWCP subsequently received December 3, 2019 x-ray reports of appellant’s right shoulder
and cervical spine, a December 18, 2019 report from Dr. Baird, and January 21, 2020 magnetic
resonance imaging (MRI) scans of her lumbar spine and right hip.
By decision dated February 7, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a causal relationship between
appellant’s diagnosed conditions and the accepted November 26, 2019 employment incident.
On February 19, 2020 appellant requested reconsideration and submitted additional
medical evidence. By decision dated March 11, 2020, OWCP denied modification of the
February 7, 2020 decision.
On April 3, 2020 appellant again requested reconsideration and submitted additional
medical evidence. By decision dated June 17, 2020, OWCP denied modification of the March 11,
2020 decision. It reviewed medical records from appellant’s traumatic injury claim under OWCP
File No. xxxxxx823 and noted that appellant had similar conditions involving the cervical spine,
right shoulder, hip, and lumbar spine.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
On February 22, 2016 appellant filed a traumatic injury claim (Form CA-1) alleging that
on February 18, 2016 she slipped on ice and injured her right hip and left knee while in the
performance of duty. OWCP assigned the claim OWCP File No. xxxxxxx823 and accepted the
claim for lower back strain, right hip strain, and right hip trochanteric bursitis.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.2 For example,

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c
(February 2000); T.D., Docket No. 20-1119 (issued January 29, 2021); R.R., Docket No. 19-0368 (issued
November 26, 2019).

2

if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.3
As the present claim under OWCP File No. xxxxxx815 and the claim under OWCP File
No. xxxxxx823 both involve injuries to appellant’s spine and right hip, they must be
administratively combined for a full and fair adjudication.4 This will allow OWCP to consider all
relevant claim files and accompanying evidence in developing appellant’s current traumatic injury
claim.
Accordingly, the Board will remand the case to OWCP to administratively combine the
present claim with OWCP File No. xxxxxx823. Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the June 17, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

See M.B., Docket No. 20-1175 (issued December 31, 2020).

4

Id.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WIDOWS CREEK FOSSIL PLANT,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 09-758
Issued: October 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 26, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ December 9, 2008 merit decision, denying his occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
hearing loss in the performance of duty
FACTUAL HISTORY
On August 29, 2008 appellant, a 61-year-old yard equipment technician, filed an
occupational disease claim alleging that he sustained a bilateral hearing loss as a result of
work-related noise exposure. He first realized that his hearing loss was employment related on
January 1, 2001. Appellant did not stop working.

On September 5, 2008 the Office informed appellant that the information submitted was
insufficient to establish his claim. Appellant was advised to submit additional information and
evidence describing his exposure to noise in his federal employment, as well as audiograms and
a physician’s report explaining how the alleged hearing loss was causally related to
employment-related noise exposure. The Office also asked the employing establishment to
provide a statement describing appellant’s exposure to noise and copies of all audiograms
performed during his federal employment.
The employing establishment provided audiologists’ reports dated November 15, 1974 to
May 19, 2008 reflecting bilateral hearing loss. Appellant’s November 15, 1974 audiogram was
signed by J. Carter, a registered nurse. The remaining audiologist reports of record were either
unsigned or contained signatures by unidentified individuals.
The employing establishment submitted a September 4, 2008 review of appellant’s
medical record signed by Cassie Miles, a registered nurse. Appellant was hired in 1974 with a
hearing loss in the right ear, due to previous noise exposure during employment at a knitting mill
and in the U.S. Navy. He worked in 1988, after which he had a 10-year break in employment
before being rehired in 1998. Ms. Miles reported that current audiograms showed a 24 percent
impairment of the right ear, but only minor loss in the left ear.
Appellant provided a work history reflecting that he was employed as a machine fixer in
a knitting mill from 1965 to 1972; by the U.S. Navy from 1972 to 1974; as a heavy equipment
and crane operator for the employing establishment from 1975 to 1988; as a crane operator for a
private employer from 1988 to 1998; and as a heavy equipment operator for the employing
establishment from 1998 to the present. He acknowledged that he was exposed to loud noise in
his job involving knitting machines and that he wore no hearing protection. Appellant stated that
he was exposed to normal gunfire noise from 16 millimeter (mm) rifles and 50 caliber machine
guns during military training. He was exposed to significant loud noise during his federal
employment, including chain saws, jack hammers, core drills, cranes, fork lifts and bulldozers.
Appellant stated that he was required to wear ear protection during his federal employment.
In an October 14, 2004 form report, Dr. Jory S. Simmons, an employing establishment
physician, indicated that appellant’s recent hearing test was “outside our normal reference
ranges” and recommended a referral to an audiologist.
The Office referred appellant, a copy of his medical record and a statement of accepted
facts (SOAF), to Dr. Joseph A. Motto, a Board-certified otolaryngologist, for a determination as
to whether appellant’s hearing loss was caused by employment-related noise exposure.1 In a
November 25, 2008 report, Dr. Motto reported the results of a November 11, 2008 audiogram,
noting responses of 0, 15, 25 and 50 decibels at 500, 1,000, 2,000 and 3,000 hertz (Hz) in the left
ear and 20, 25, 45 and 60 decibels at those levels in the right ear. He diagnosed bilateral
high-frequency sensorineural hearing loss, which he opined was not due to employment-related
1

The October 9, 2008 SOAF indicated that, prior to appellant’s federal employment, he worked in private
industry as a machine fixer, where he was exposed to occupational noise and was provided with no hearing
protection. Appellant was also exposed to gunfire from 16 mm rifles and 50 caliber machine guns and heavy
equipment during his tenure with the U.S. Navy.

2

noise exposure. Rather, Dr. Motto stated that appellant’s recreational activities and nonworkrelated medical conditions were responsible for his hearing loss. He noted that appellant was
employed with a high-frequency hearing loss centered at 3,000 Hz in the right ear. Dr. Motto
stated that appellant’s recreational hunting until 1984 (approximately 10 times per year) would
explain the higher degree of hearing loss in the right ear versus the left ear, given the fact that
appellant was right-handed. He opined that appellant’s lower-frequency hearing loss was due to
his medical conditions of hypertension and hypercholesterol.
On December 2, 2008 the district medical adviser reviewed the medical evidence . She
agreed that appellant’s hearing loss was not due to work-related noise exposure, but rather was
due to recreational firearm use.
By decision dated December 9, 2008, the Office denied appellant’s claim on the grounds
that the medical evidence failed to establish that his hearing loss was causally related to
established work-related noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that the injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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.3
2

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

3

Solomon Polen, 51 ECAB 341 (2000).

3

An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment, nor
the belief that the condition was caused, precipitated or aggravated by his employment, is
sufficient to establish a causal relationship.4 The mere fact that a disease or condition manifests
itself or worsens during a period of employment5 or that work activities produce symptoms
revelatory of an underlying condition6 does not raise an inference of causal relation between the
condition and the employment factors.
ANALYSIS
It is not disputed that appellant was exposed to work-related noise in the course of his
federal employment. However, the weight of the medical evidence does not establish that his
hearing loss is causally related to his employment-related noise exposure.
Appellant submitted various audiogram results reflecting bilateral hearing loss.
However, none of the audiograms were accompanied by a physician’s discussion of the
employment factors believed to have caused or contributed to his hearing loss. Thus, these
reports and audiograms from audiologists do not constitute probative medical evidence.7
On October 14, 2004 Dr. Simmons, an employing establishment physician, advised that
appellant’s recent hearing test was “outside our normal reference ranges” and recommended a
referral to an audiologist. Dr. Simmons did not offer any opinion regarding the cause of
appellant’s condition and is therefore of limited probative value.8
The Office’s second opinion physician examined appellant, reviewed the entire medical
record and SOAF and reported the results of a November 11, 2008 audiogram. Dr. Motto
diagnosed bilateral high frequency sensorineural hearing loss, which he attributed to recreational
activities and nonwork-related medical conditions. He stated that appellant’s recreational
hunting 10 times per year until 1984, would explain the higher degree of hearing loss in his right
ear, given the fact that he was right-handed. Dr. Motto also noted that, when appellant was
hired, he already had a high-frequency hearing loss centered at 3,000 Hz in the right ear. He
opined that appellant’s lower-frequency hearing loss was due to his medical conditions of
hypertension and hypercholesterol. Based on his examination of appellant and review of the
entire record, he concluded that appellant’s hearing loss was not causally related to his

4

Robert G. Morris, 48 ECAB 238-39 (1996).

5

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

6

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

7

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See Robert E. Cullison, 55 ECAB 570
(2004) (the Office does not have to review every uncertified audiogram, which has not been prepared in connection
with an examination by a medical specialist). See also Herman L. Henson, 40 ECAB 341 (1988) (an audiologist is
not considered a physician under the Act); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held
that medical opinion, in general, can only be given by a qualified physician).
8

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Michael E. Smith, 50 ECAB 313 (1999).

4

employment-related noise exposure. The Board finds that Dr. Motto’s report is well rationalized
and constitutes the weight of the medical evidence.9
Appellant has provided no probative medical evidence, which contains an opinion in
support of his position that his bilateral hearing loss was caused by employment-related noise
exposure. The Board finds that he failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed bilateral hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

The Board notes that Dr. Motto’s reasoning as it relates to appellant’s recreational hunting also applies to his use
of firearms during military service.

5