United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shelton, CT, Employer
__________________________________________

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

Docket No. 08-144
Issued: June 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 22, 2007 appellant filed a timely appeal from an August 1, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
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 has established that she sustained a stress-related
myocardial infarction in the performance of duty.
FACTUAL HISTORY
On January 16, 2003 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim alleging that she sustained a myocardial infarction causally related to factors of her
federal employment. She became aware of her condition on June 28, 2000. Appellant stopped
work on June 29, 2000 and returned to work on September 11, 2000.

In an accompanying statement, appellant attributed her myocardial infarction to
harassment by Wilfred N. Courchaine, the postmaster, beginning in 1994. Mr. Courchaine
denied her request to work overtime inside because of her pregnancy but allowed another carrier
to work overtime indoors. He referred to appellant’s route as a “baby route.” Appellant
sustained a work injury on February 7, 1994, assigned file number 010317636. She worked
limited duty for four hours per day subsequent to her February 1994 injury. On June 29, 2000
and November 2002 Mr. Courchaine allegedly refused to give her Office forms. In 2001 the
employing establishment counseled appellant for her work injuries, including the June 28, 2000
myocardial infarction.
Appellant was hospitalized from June 28 until July 3, 2000. Dr. Jeffrey Lederman, a
Board-certified internist, noted in appellant’s discharge summary that on the date of admission
she complained “of chest discomfort after an altercation with her boss.” He diagnosed an acute
myocardial infarction. On August 15, 2000 Dr. Mark S. Grogan, a Board-certified internist,
listed the history of injury as chest pain after an altercation with her boss. He diagnosed a non-Q
wave myocardial infarction and checked “yes” that the condition was caused or aggravated by
employment. Dr. Grogan provided as a rationale that it occurred after an “altercation with [a]
manager.” He found that appellant was disabled from June 29, 2000 until approximately
August 31, 2000. On September 27, 2000 Dr. Grogan asserted that appellant had elevated
troponin levels while hospitalized. He stated: “It is my opinion her elevated troponin level may
have been related to her altercation with her boss in June of 2000.” Dr. Grogan noted that it did
not appear that appellant had coronary artery disease or coronary spasm.
On January 24, 2003 the employing establishment indicated that appellant had previously
filed a traumatic injury claim for the June 28, 2000 myocardial infarction. The Office denied the
claim, assigned file number 010375864.
In a July 30, 2000 statement, appellant related that she sustained an employment injury in
February 1994. She stated:
“P.M. Courchaine has made my life difficult during these years since this injury
by illegally threatening to terminate my compensation, sending unauthorized
people to my home (who had my medical documentation in their possession),
interpreting medical results on his own and coming up with bogus job offers….
I’ve filed grievances against the P.M. in regards to these incidents and won them.”
Appellant related that the harassment by Mr. Courchaine culminated in the incident of
June 28, 2000.
In a September 12, 2000 decision, a dispute resolution team declared an impasse
regarding whether Mr. Courchaine verbally abused appellant on June 28, 2000. Mr. Courchaine
asked her where her husband, a coworker and union steward, was that day. He wanted her
husband to act as a union representative for a coworker. Appellant responded that the
Mr. Courchaine knew that her husband had not been called in for weeks. She maintained that he
harassed her about her husband’s whereabouts until her chest tightened. Management
maintained that appellant could have replied that she did not know where her husband was or
declined to answer the question. A witness statement submitted as part of the dispute resolution

2

process indicated that Mr. Courchaine asked her where her husband was and that she became
upset following the incident. In a July 11, 2000 statement, Gary Esposito related that
Mr. Courchaine inquired about the location of appellant’s husband and she twice asked him if he
was joking. Appellant replied that he was playing games and that her husband had not worked
on his day off in more than a month. She began to cry.
In an undated statement, Mr. Courchaine related that he asked appellant where her
husband was. Appellant asked him to repeat what he said and he did. She then asked
Mr. Courchaine if that was a joke and became upset. Appellant noted that he had not worked on
his off day in weeks.
Appellant filed a grievance alleging that management refused to provide her with a Form
CA-16s on June 29, 2000. A September 26, 2000 grievance resolution noted that her husband
requested a Form CA-16 on June 29 and 31, 2000 but could not provide the name of the
attending physician. Management asserted that it offered a Form CA-16. The grievance was
resolved with management agreeing to follow the ELM [Employee Labor Relations Manual]
guidelines.
On March 23, 2003 appellant submitted a May 22, 1991 union memorandum regarding
home visitations by supervisor of injured workers. The memorandum indicated that there should
be no unannounced visits and that employees should be allowed to refuse admission to their
home. Appellant filed a grievance alleging that management erred in visiting her at home on
April 16, 1998. She asserted that supervisors had her medical records and visited her home
unannounced. Management maintained that the supervisors had work restrictions rather than
medical records and it would now abide by the National Agreement and ELM regarding Office
cases. On May 8, 1998 the grievance was resolved with management agreeing to follow the
ELM and EL-806 in regards to Office cases.
On July 22, 1999 a dispute resolution team resolved a grievance filed by appellant
alleging that management disregarded her physician’s restrictions to work four hours per day by
instructing her to return to her regular full-time employment. The team noted that the employing
establishment sent her for a fitness-for-duty evaluation and the physician found that she could
resume her usual work. Appellant’s physician found that she could work only four hours per
day. A joint contract between union and management provided that the Office resolved disputes
about the condition of injured employees. The dispute resolution team found that she should
remain on part-time limited duty as her physician directed and that management should obtain
instructions from the Office if it believed her work restrictions should be lifted.
In a report dated September 11, 2002, Dr. Grogan related that he treated appellant on that
date “for further evaluation of her non-Q wave myocardial infarction with documented
troponin-I elevation following an altercation at her workplace in June 2001.” He found that it
was more likely than not that her “[t]roponin-I elevation suggesting myocardial necrosis
occurred as a result of her verbal confrontation with her superior at the [employing
establishment].”
A witness specifically described vulgar language used by Jim Cordon toward appellant.
The witness and two coworkers heard the statement.

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By decision dated July 28, 2003, the Office denied appellant’s claim on the grounds that
she did not establish an emotional condition in the performance of duty. The Office found that
she had not established any compensable employment factors.
On August 25, 2003 appellant requested an oral hearing, which was held on
March 15, 2004. At the hearing, her husband related that two supervisors visited her home after
she finished her four hours of limited duty. Appellant submitted a transcript of a telephone
conversation between a union representative and one of the supervisors.1 The supervisors
indicated that Mr. Courchaine gave them her medical records. Appellant filed a grievance about
the home visitation and asserted that it should be conducted by medical personnel rather than
supervisors. The grievance was resolved and management had to cease sending people to her
house. On March 1, 1997 a supervisor used abusive language. Mr. Courchaine instructed her to
work full time rather than four hours per day. Appellant filed a grievance and a dispute
resolution team indicated that her ability to work was a matter for the Office to resolve.
Mr. Courchaine also offered her full-time jobs on June 24 and December 29, 1999. Appellant
continued to work four hours per day, except for time missed as a result of her heart attack.
Coco Martin, a coworker, told her that her husband was not called in for overtime in an attempt
to force her to work eight hours per day. Jody Simon told her that she was taking too long
preparing her mail for delivery. Appellant informed Mr. Simon about her medical restrictions
and he said that she was on time with her preparation. She believed that the postmaster harassed
her by asking where her husband was because the postmaster was already aware that he was not
at work. Mr. Courchaine refused to give appellant’s husband a Form CA-16. The employing
establishment talked with her daily about her work injuries, including her heart attack on
June 28, 2000.
By decision dated June 14, 2004, the Office hearing representative affirmed the July 28,
2003 decision. She found that appellant had not established any compensable work factors.
On June 8, 2005 appellant requested reconsideration. She contended that the hearing
representative ignored the fact that she won her July 22, 1999 grievance against the employing
establishment. On October 15, 2003 appellant’s grievance regarding the June 28, 2000
altercation with Mr. Courchaine was resolved. The parties agreed to the principles of the joint
statement of behavior in the workplace. Appellant also noted that she learned that Mr. Condron,
a supervisor, used obscene language when referring to her but received no discipline. She
maintained that Mr. Courchaine instructed her to ask for assistance to abide by her physical
limitations. Appellant asserted that constantly requesting help reminded her of her restrictions
due to her employment injury and was an imposition on her coworkers. She submitted a June 8,
2005 statement from a coworker, Marlies Bellows, who confirmed that appellant constantly
required the assistance of coworkers to perform her duties. Appellant also submitted statements
from coworkers who had employment injuries but were not visited at home.
On May 3, 2007 appellant again requested reconsideration. By decision dated August 1,
2007, the Office denied modification of its June 14, 2004 decision.

1

The statement purporting to be the transcript is not signed by any party.

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LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.4 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.5
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.6
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.7 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.8 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.9 The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions

2

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
5

See William H. Fortner, 49 ECAB 324 (1998).

6

Ruth S. Johnson, 46 ECAB 237 (1994).

7

See Michael Ewanichak, 48 ECAB 364 (1997).

8

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

9

See James E. Norris, 52 ECAB 93 (2000).

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of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.12
ANALYSIS
Appellant alleged that she sustained a stress-related myocardial infarction as a result of a
number of employment incidents and conditions. The Office denied her emotional condition
claim on the grounds that she did not establish any compensable employment factors. The Board
must, therefore, initially review whether these alleged incidents and conditions of employment
are covered employment factors under the terms of the Act.
Appellant contended that Mr. Courchaine harassed and verbally abused her on June 28,
2000, the date of her myocardial infarction. If disputes and incidents alleged as constituting
harassment and discrimination by supervisors and coworkers are established as occurring and
arising from the employee’s performance of her regular duties, these could constitute
employment factors.13 The evidence, however, must establish that the incidents of harassment or
discrimination occurred as alleged to give rise to a compensable disability under the Act.14
Additionally, verbal altercations and difficult relationships with supervisors, when sufficiently
detailed by the claimant and supported by the record, may constitute factors of employment.
This does not imply, however, that every statement uttered in the workplace will give rise to
coverage under the Act.15 Appellant related that on June 28, 2000 Mr. Courchaine asked her
where her husband was. She asked if he was joking and he repeated the question. Appellant
became upset because management had not called in her husband to work overtime for a long
time. A coworker told her that management was not allowing her husband to work overtime in
order to get her to return to work full time. Appellant believed that Mr. Courchaine was
deliberately harassing her by asking about her husband’s whereabouts. In an undated statement,
10

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

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Id.

13

Janice I. Moore, 53 ECAB 777 (2002).

14

Id.

15

Marguerite J. Toland, 52 ECAB 294 (2001).

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Mr. Courchaine related that he asked appellant where her husband was and she responded that he
must be joking. He asked again and she became upset and said that he had not worked on his
day off for along day. Witness statements support that the events of June 28, 2000 occurred as
described. Witness statements indicate that Mr. Courchaine was aware that appellant’s husband
was not at work that day as he had tried to utilize him in his capacity as a union representative.
The statements by the witnesses, however, do not provide evidence that the questions or
comments by the postmaster constituted verbal harassment.16 Appellant has not shown that
Mr. Courchaine’s questions regarding her husband’s whereabouts constituted either harassment
or verbal abuse. In an October 15, 2003 grievance settlement, the parties agreed to the principles
of joint behavior in the workplace and maintaining dignity and fairness. The settlement does not
establish harassment or abuse by the postmaster. If Mr. Courchaine’s comments offended
appellant, her emotional reaction is self-generated as it resulted from her perceptions about her
supervisor’s motives for the questions.17 Consequently, appellant has not established a
compensable employment factor.
Appellant also alleged that she learned that a supervisor used obscene language in
referring to her. A coworker confirmed that he heard Mr. Condron use insulting language. As
noted, however, not every statement uttered in the workplace will give rise to coverage under the
Act.18 The supervisor’s comment was not made directly to appellant or otherwise in her
presence and there is no evidence that this was ongoing or repeated conduct on his part. Thus,
appellant has not established a compensable employment factor.19
Appellant maintained that Mr. Courchaine denied her request to work overtime inside
when she was pregnant. Although the assignment of work duties is generally related to the
employment, it is an administrative function of the employer and not a duty of the employee. An
administrative or personnel matter will be considered to be an employment factor where the
evidence discloses error or abuse on the part of the employing establishment.20 Appellant has
not submitted any evidence of error or abuse by Mr. Courchaine refusing to allow her to work
overtime in an inside work location. Further, her frustration from not being permitted to work in
a particular environment is not a compensable factor under the Act.21
Regarding appellant’s contention that Mr. Courchaine refused to provide her with the
proper Office forms, the Board finds that she has not established error or abuse in an

16

See Cyndia R. Harrill, 55 ECAB 522 (2004).

17

See David S. Lee, 56 ECAB 602 (2005).

18

Marguerite J. Toland, supra note 15.

19

See Mary A. Sisneros, 46 ECAB 155 (1994).

20

Lori A. Facey, 55 ECAB 217 (2004).

21

See Cyndia R. Harrill, supra note 16.

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administrative matter. She filed a grievance which was resolved without a finding of fault by
any party.22
Appellant argued that management issued her an unauthorized job offer. She filed a
grievance contending that management failed to adhere to her physician’s restrictions when it
instructed her to return to full-time employment. On July 22, 1999 a dispute resolution team
noted that a physician who performed a fitness-for-duty examination found that she could return
to her usual employment but that her attending physician restricted her to work four hours per
day. The dispute resolution team found that appellant should remain on part-time limited duty as
directed by her physician and that management should obtain instructions from the Office if it
believed that her restrictions should be changed. The finding by the dispute resolution teams fall
short of establishing administrative error or abuse by management and thus is insufficient to
establish a compensable employment factor.
Appellant maintained that she had to constantly seek assistance from her coworkers
because of physical limitations from a prior work injury. She related that she experienced stress
because she inconvenienced her busy coworkers, which reminded both herself and others about
her limitations. A statement from a coworker confirms that appellant frequently asked for help
performing her duties. Her reaction to asking her coworkers for assistance, however, appears to
be self-generated as it resulted from her perception that she was causing her coworkers
inconvenience.23 Appellant also indicated that Mr. Simon told her that she took too long
performing her duties; however, when she explained that she had work restrictions, he
acknowledged that she was performing her duties in a timely manner. She has not submitted any
evidence that Mr. Simon acted erroneously by failing to be aware of her physical limitations.
Appellant further alleged that management erred in visiting her home unannounced on
April 16, 1998. She alleged that the supervisors who visited her home had her medical records
in their possession. Management indicated that supervisors had appellant’s work restrictions
rather than her medical records. Management stated that it would “now follow Article 3 & 41 of
the National Agreement, the ELM pertaining to [the Office] and EL-806.” The language of the
agreement does not prohibit home visits. It discourages them by noting: “there should be no
more unannounced visits and that employees should be allowed to refuse admission to their
home.” The fact that the employing establishment agreed to follow the agreement does not rise
to the level of or equate to an admission that an error occurred. Thus, this is insufficient to
establish a compensable factor of employment.
As appellant has not established any compensable factors of employment, the Board finds
that she did not sustain an emotional condition in the performance of duty.24
22

See Ronald K. Jablanski, 56 ECAB 616 (2005) (although the handling of a compensation claim is generally
related to the employment, it is an administrative function of the employer and not a duty of the employee and not
compensable absent evidence of error or abuse by the employer).
23

See David S. Lee, supra note 17.

24

As appellant has not submitted the necessary evidence to substantiate a compensable factor of employment as
the cause of his emotional condition, any medical evidence relating appellant’s emotional condition need not be
addressed. Karen K. Levene, 54 ECAB 671, 674 (2003).

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CONCLUSION
The Board finds that appellant has not met her burden to establish stress-related
myocardial infarction in the performance of duty causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2007 is affirmed.
Issued: June 3, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baytown, TX, Employer
__________________________________________

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

Docket No. 17-1523
Issued: April 3, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 3, 2017 appellant, through counsel, filed a timely appeal from a May 22, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for a stationary
bicycle.
FACTUAL HISTORY
On August 7, 2007 appellant, then a 41-year-old rural carrier, injured his neck, shoulder,
and left arm when his mail truck was struck from behind while stopped at a traffic light in the
performance of duty. OWCP accepted appellant’s traumatic injury claim (Form CA-1) for left
1

5 U.S.C. § 8101 et seq.

shoulder bursae tendon disorders and expanded the acceptance of his claim to include bilateral
disorder of the bursae and tendons in shoulder region, sprain of back, lumbar region, sprain of
neck, degeneration of cervical intervertebral disc, displacement of cervical intervertebral disc
without myelopathy, displacement of lumbar intervertebral disc without myelopathy, displacement
of lumbar or lumbosacral intervertebral disc, and acquired spondylolisthesis. Appellant stopped
work on August 7, 2007 and received supplemental payments from October 2 to 27, 2007. OWCP
placed him on the periodic rolls on October 28, 2007.
Appellant was treated by Dr. K. Bobby Pervez, a Board-certified anesthesiologist, on
August 20, 2007 for cervical and lumbar spine pain that developed after an August 7, 2007 workrelated motor vehicle accident. Dr. Pervez diagnosed status post traumatic injury cervical and
lumbar discogenic pain and cervical and lumbar radiculopathy. He recommended continued
physical therapy. In an August 20, 2007 duty status report (Form CA-17), Dr. Pervez diagnosed
cervical and discogenic pain and radiculopathy and indicated that appellant was off work until
further notice.
Dr. Pervez continued to treat appellant. A magnetic resonance imaging (MRI) scan of the
left shoulder dated September 17, 2007 revealed no fracture, intact acromioclavicular joint,
thinning of cartilage of the glenohumeral joint, grade I signal change of the rotator cuff indicating
degenerative changes with no evidence of a rotator cuff tear. An October 24, 2007 MRI scan of
the cervical spine, revealed mild reversed lordosis of the cervical spine, moderate narrowing of
C5-6 disc, posterior bulge at C3-4, C4-5, and C5-6. An October 24, 2007 lumbar spine MRI scan
revealed grade I spondylolisthesis at L5-S1, disc bulge at L3-4 and L4-5.2
A February 16, 2016 MRI scan of the lumbar spine revealed spondylolisthesis at L5-S1,
broad-based central disc herniation at L4-L5. A cervical spine MRI scan of even date revealed
central left disc herniations at C4-C5, C5-C6, and C6-C7 with central stenosis and cord
compression at C4-C5, C5-C6, and C6-C7.
Appellant saw Dr. Mical S. Duvall, a Board-certified orthopedist, on June 29, August 3
and 29, September 26, and October 24, 2016 for neck pain that radiated into both shoulders and
lower back pain that radiated down both legs. He reported a back injury at work on August 7, 2007
when his mail truck was rear ended while he was stopped. Findings included limited range of
motion of the cervical spine, right-sided C8 and T1 radiculopathy, and paraspinal muscular
tenderness at extremes of range of motion. Dr. Duvall diagnosed degeneration of lumbosacral and
lumbar intervertebral disc, displacement of lumbar and cervical intervertebral disc without
myelopathy, rotator cuff disorder, and rotator cuff syndrome. He recommended physical therapy,
aqua therapy, cervical epidural steroid injections, and trigger point injections. On August 15, 2016
Dr. Duvall also diagnosed muscle spasm. He performed ultrasound guidance trigger point
2

On May 18, 2012 OWCP granted appellant a schedule award for 11 percent permanent impairment of the right
upper extremity and 8 percent permanent impairment of the left upper extremity. Appellant disagreed with this
decision and requested reconsideration. OWCP further developed appellant’s schedule award claim (Form CA-7) and
sent him to a second opinion physician and an OWCP medical adviser. It found a conflict of opinion and referred
appellant to an impartial medical examiner. On March 15, 2017 OWCP denied appellant’s claim for an increased
schedule award. On March 31, 2017 appellant requested a review of the written record by an OWCP hearing
representative and submitted additional medical evidence. The schedule award issue is not before the Board on the
present appeal.

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injections into the erector spine and transversarius and iliocostal and injections by fluoroscopic
guidance at L4-L5.
A September 28, 2016 electromyogram (EMG) revealed findings consistent with bilateral
carpal tunnel syndrome, bilateral ulnar sensory neuropathy, bilateral peripheral sensory
neuropathy of both legs, right C7 nerve root irritation, and left L5 radiculopathy.
On September 28, 2016 OWCP authorized a series of three cervical and thoracic spine
injections. On October 4, 2016 it authorized an MRI scan of the arms. On October 7, 2016 OWCP
authorized three units of cervical and thoracic spine injections.
Appellant underwent a right shoulder MRI scan on October 5, 2016 which revealed bursal
surface partial tear supraspinatus tendon, small insertional partial infraspinatus anchor, mild
subdeltoid bursitis, and mild subacromial outlet narrowing.
On October 10, 2016 Dr. Duvall performed fluoroscopic guided injections at C7-T1,
cervical interlaminar epidural steroid injection at C7-T1 and ultrasound guided trigger point
injections into the bilateral rhomboids, trapezius, and supraspinatus. In an attending physician’s
report (Form CA-20) dated October 24, 2016, he noted that appellant was rear ended in a mail
truck and injured his back and both shoulders. Dr. Duvall diagnosed lumbosacral, lumbar, and
cervical disc displacement, and bilateral rotator cuff disorders. He checked a box marked “yes”
that appellant’s condition was work related noting that being hit while holding a steering wheel
would cause his conditions. Dr. Duvall also requested that appellant have a stationary bike for
range of motion and restrengthening along with physical therapy and aqua therapy.
Appellant subsequently submitted an August 29, 2016 prescription from Dr. Duvall
requesting a stationary bike with electronic heart rate monitor. On October 24, 2016 Dr. Duvall
advised that appellant was under his care for injuries he sustained at work. He noted that appellant
did not experience significant improvement with conservative therapy and medical management.
Dr. Duvall requested that appellant exercise at home with a stationary bike to improve range of
motion, decrease pain, and increase mobility. He noted that appellant’s compensable injuries were
lumbar disc displacement, lumbar degeneration, and acquired spondylosis. Dr. Duvall reiterated
that appellant was motivated, dedicated to improving his condition, and was compliant with regard
to his treatment. He opined that appellant had the potential to significantly improve his recovery
if provided with necessary and proper equipment to assist him in his recovery. In a durable medical
equipment authorization request dated October 25, 2016, Dr. Duvall requested authorization for a
stationary bike with a heart monitor for treatment of lumbar and cervical spine conditions.
On November 2, 2016 OWCP authorized a series of three cervical and thoracic spine
injections, trigger point injections, and fluoroscopic guidance injections. It also authorized
physical therapy and aqua therapy.
On November 7, 2016 Dr. Duvall performed injections at C7-T1, cervical interlaminar
epidural steroid injection at C7-T1, and ultrasound trigger point injections into the bilateral
rhomboids, trapezius, and supraspinatus.
On November 15, 2016 a durable medical equipment authorization request was submitted
noting three quotes were obtained for a stationary bike with a heart monitor. OWCP requested
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that a medical adviser address whether the requested stationary bicycle was warranted and
necessitated by the accepted conditions.
In a November 14, 2016 report, the medical adviser noted reviewing the medical record
and statement of accepted facts. He noted that on October 24, 2016 Dr. Duvall recommended the
use of a home exercise bicycle to improve range of motion, decrease pain, and increase mobility.
The medical adviser noted that the use of a stationary bicycle would not improve range of motion,
mobility, or decrease pain in the cervical spine, lumbar spine, or bilateral shoulders. The primary
goal of an exercise bicycle was to provide cardiopulmonary exercise as well as strengthening of
the lower extremities. The medical adviser opined that based on the above he did not feel that the
weight of the medical evidence supported the need for a stationary bicycle as medically necessary
or reasonable to treat appellant’s ongoing work-related problems with the cervical spine, lumbar
spine, and bilateral shoulders.3
By decision dated November 30, 2016, OWCP denied authorization for a home stationary
bicycle as the evidence of record did not support that it was medically necessary to address the
effects of the work-related injury.
Appellant came under the treatment of Dr. Paul E. Kobza, an osteopath, on October 31,
2016, for right shoulder pain due to a work-related motor vehicle accident on August 7, 2007. He
reported no relief with physical therapy or injections. Dr. Kobza diagnosed right shoulder
impingement syndrome and right shoulder partial thickness supraspinatus and infraspinatus tear
and recommended additional physical therapy. In a November 14, 2016 Texas Workers’
Compensation Work Status Report, he noted that appellant could return to work on November 14,
2016 with restrictions through December 5, 2016.
Appellant subsequently submitted reports from Dr. Duvall dated November 28, 2016 and
January 16, 2017, which indicated that appellant’s cervical epidural steroid injections improved
his arm and shoulder pain and increased his range of motion. Dr. Duvall noted findings on
examination of right-sided C8 and T1 radiculopathy and diagnosed degeneration of lumbosacral
and lumbar intervertebral disc, displacement of lumbar and cervical intervertebral disc without
myelopathy, disorder of rotator cuff, and rotator cuff syndrome. He recommended another series
of cervical epidural steroid injections and trigger point injections.
On December 12, 2016 Dr. Duvall performed injections at C7-T1, C5-C6, and into the
bilateral rhomboid, trapezius, and supraspinatus muscles.
In an undated letter appellant requested reconsideration. He requested that OWCP consider
all evidence of record in his case and all positive and negative evidence material to the
determination of the matter and give him the benefit of the doubt with respect to the exercise bike.
In an appeal request form dated February 16, 2017, received by OWCP on February 21, 2017,
appellant requested reconsideration of the November 30, 2016 OWCP decision.

3
The memorandum from the medical adviser also addressed appellant’s claim for a schedule award; however, this
issue is not before the Board on appeal.

4

Appellant submitted an EMG dated October 3, 2016 which revealed right and left
sensorimotor median neuropathy at the wrists consistent with carpal tunnel syndrome, bilateral
ulnar sensory neuropathy, bilateral peripheral sensory neuropathy affecting the lower extremities,
right C7 nerve root irritation, and left L5 radiculopathy.
Appellant submitted a December 19, 2016 report from Dr. Kobza who noted his continued
complaints of bilateral shoulder pain stemming from a work injury on August 7, 2007. Dr. Kobza
reported no relief from pain with therapy or steroid injections. He diagnosed right shoulder
impingement syndrome and right shoulder partial thickness tear of the supraspinatus and
infraspinatus muscles and recommended physical therapy. Appellant submitted reports from
Dr. Duvall dated February 16, March 14, and April 12, 2017 who indicated that appellant had
significant improvement with the Medrol dosepak. Dr. Duvall noted findings of right-sided C8T1 radiculopathy and paraspinal muscular tenderness at extremes of range of motion. He noted
diagnoses and recommended cervical epidural steroid injections, trigger point injections, physical
therapy, and aqua therapy. Dr. Duvall also submitted evidence previously of record.
In a decision dated May 22, 2017, OWCP denied modification of the decision dated
November 30, 2016.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.5 OWCP has administrative discretion in choosing the means to achieve this goal
and the only limitation on OWCP’s authority is that of reasonableness.6
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of establishing that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.7 Proof of causal relationship in a case such as this must
include supporting rationalized medical evidence.8

4

5 U.S.C. § 8103(a).

5

Dale E. Jones, 48 ECAB 648, 649 (1997).

6

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are contrary to
both logic, and probable deductions from established facts).
7

See Debra S. King, 44 ECAB 203, 209 (1992).

8

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

5

Section 10.310(a) of OWCP’s implementing regulations provides that an employee is
entitled to receive all medical services, appliances or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.9
OWCP procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting
sets, exercise bicycles, etc., may be authorized only if recommended by the attending physician
and if OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of monthly compensation.10
ANALYSIS
OWCP accepted that appellant sustained a bilateral disorder of the bursae and tendons in
shoulder region, sprain of back, lumbar region, sprain of neck, degeneration of cervical
intervertebral disc, displacement of cervical intervertebral disc without myelopathy, displacement
of lumbar intervertebral disc without myelopathy, displacement of lumbar or lumbosacral
intervertebral disc, and acquired spondylolisthesis. Appellant seeks authorization for a stationary
bicycle with a heart monitor. The Board finds that OWCP did not abuse its discretion by denying
authorization for a stationary bike with a heart monitor.
Appellant provided a prescription note from Dr. Duvall dated August 29, 2016 for a
stationary bike with electronic heart rate monitor. In October 24, 2016 reports, Dr. Duvall advised
that appellant was under his care for injuries he sustained at work. He noted that appellant did not
experience significant improvement with conservative therapy and medical management.
Dr. Duvall recommended appellant exercise at home with a stationary bike to improve range of
motion, decrease pain, and increase mobility. He opined that appellant had the potential to
significantly improve his recovery provided the necessary and proper equipment. Likewise, in a
durable medical equipment authorization request dated October 25, 2016, Dr. Duvall requested
authorization for a stationary bike with a heart monitor for treatment of the bilateral lumbar and
cervical spine. However, his reports failed to provide a rationalized opinion addressing why a
stationary bicycle was medically warranted.11 Rather, Dr. Duvall’s opinion was speculative,
noting the proper equipment “had the potential to significantly improve” appellant’s recovery. He
did not provide the necessary medical explanation as to how the stationary bicycle would cure,
reduce the period of disability, or aid in lessening the amount of monthly compensation.12
Therefore, this report is insufficient to meet appellant’s burden of proof.13

9

20 C.F.R. § 10.310(a).

10
Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3.d(5)
(October 1995); see also Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.17.h
(June 2014).
11

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
12

See E.J., Docket No. 10-0743 (issued November 2, 2010).

13

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006)

6

Other reports provided by Dr. Duvall dated June 29 to October 24, 2016 and November 28,
2016 to April 12, 2017 are of limited probative value as they do not specifically address whether
the requested stationary bicycle is medically necessary and warranted and would cure, reduce the
period of disability, or aid in lessening the amount of monthly compensation for the accepted
bilateral disorder of the bursae and tendons in shoulder region, sprain of back, lumbar region,
sprain of neck, degeneration of cervical intervertebral disc, displacement of cervical intervertebral
disc without myelopathy, displacement of lumbar intervertebral disc without myelopathy,
displacement of lumbar or lumbosacral intervertebral disc, and acquired spondylolisthesis and
medically warranted.14
Other reports from Dr. Kobza dated October 31 to December 19, 2016 noted treatment for
bilateral shoulder pain due to a work-related motor vehicle accident on August 7, 2007. Dr. Kobza
diagnosed right shoulder impingement syndrome and right shoulder partial thickness tear of the
supraspinatus and infraspinatus muscles. However, he failed to address whether the stationary
bicycle was medically necessary and how it would cure, reduce the period of disability, or aid in
lessening the amount of monthly compensation.15
Additionally, the Board notes that OWCP sought the advice of its medical adviser in this
matter. In a November 14, 2016 report, OWCP’s medical adviser opined that the use of a
stationary bicycle would not improve range of motion, mobility, or decrease pain in the cervical
spine, lumbar spine, or bilateral shoulders. He noted that the primary goal of an exercise bicycle
was to provide cardiopulmonary exercise as well as strengthening of the lower extremities. The
medical adviser opined that the weight of the medical evidence did not support the need for a
stationary bicycle as medically necessary or reasonable to treat appellant’s ongoing work-related
problems with the cervical spine, lumbar spine, and bilateral shoulders.
As noted, the only limitation on OWCP’s authority is approving or disapproving service
under FECA is one of reasonableness.16 Because appellant did not submit a reasoned medical
opinion explaining how t stationary bicycle would cure, reduce the period of disability, or aid in
lessening the amount of monthly compensation, OWCP properly acted within its discretionary
authority to deny authorization for the requested equipment. Therefore, the Board finds that
OWCP did not abuse its discretion under section 8103 in denying approval of the stationary
bicycle.
On appeal appellant argues that he needed the stationary bicycle to aid in his recovery from
the accepted medical conditions, but as discussed, he did not show that the equipment was
medically necessary or reasonable to treat his ongoing work-related problems with the cervical
spine, lumbar spine, and bilateral shoulders. The medical evidence of record is insufficient to
establish that OWCP abused its discretion in denying authorization for the stationary bicycle.

14

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
15
16

See supra note 12.
Supra note 6.

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying authorization for the
stationary bicycle.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated May 22, 2017 is affirmed.
Issued: April 3, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Caspian, MI, Employer
__________________________________________

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

Docket No. 14-1105
Issued: October 7, 2014

Case Submitted on the Record

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

JURISDICTION
On April 28, 2014 appellant filed a timely appeal from a March 31, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a right hand and thumb condition causally
related to factors of her federal employment.
FACTUAL HISTORY
On March 21, 2013 appellant, then a 57-year-old postmaster, filed an occupational
disease claim alleging that she sustained tenosynovitis causally related to factors of her federal
employment. She did not stop work.
1

5 U.S.C. § 8101 et seq.

By letter dated April 15, 2013, OWCP requested that appellant submit additional factual
and medical information, including a detailed report from her attending physician addressing the
causal relationship between any diagnosed condition and her work duties.
In a report dated February 20, 2012, received by OWCP on May 10, 2013, a physician
evaluated appellant for a sore throat, cough and pain in her right thumb.2 The physician
diagnosed right thumb pain and referred her for occupational therapy and diagnostic studies.
On March 29, 2012 a physician diagnosed tenosynovitis and noted that appellant’s right
thumb pain was not improving with therapy. The report did not contain a signature.
In a report dated October 8, 2012, Dr. Harold Steven Cline, a Board-certified orthopedic
surgeon, noted that appellant experienced “daily discomfort in her job due to repeated gripping
and heavy use of her hands.” He related that x-rays revealed “mild basilar joint arthritis with the
saddle intact and no significant subluxation of the right carpometacarpal [CMC] joint.”
Dr. Cline treated appellant with an injection.
On March 12, 2013 Dr. Michael Veale, a Board-certified orthopedic surgeon, reviewed
appellant’s history of pain beginning more than a year ago without any definite injury. He
stated, “She is a postmaster working in a large office independently up to six hours per day.
[Appellant’s] work requires a lot of repetitive overuse and this seems to have resulted in pain at
the base of the thumb.” Dr. Veale diagnosed CMC joint arthrosis and intermittent ecchymosis of
the dorsum of the right thumb possibly indicating a vascular injury. He recommended against
surgery at this time. Dr. Veale further recommended that appellant reduce her repetitive
activities as it aggravated her condition.
In a statement dated March 21, 2013, appellant advised management at the employing
establishment that she sustained pain and swelling in her right thumb as a result of sorting mail
into boxes. She explained that she folded large envelopes, magazines and flats with her right
hand and placed it in the boxes using a pinching motion. Appellant additionally used her thumb
to scan packages.
By decision dated September 27, 2013, OWCP denied appellant’s claim after finding that
the medical evidence was insufficient to establish that she sustained a diagnosed condition due to
the identified work factors.
On October 4, 2013 Dr. Veale diagnosed joint arthrosis of the CMC joint of the thumb.
He related that appellant’s job duties as a postmaster required “a lot of repetitive activities that
have resulted in the development of degenerative arthrosis as well as ongoing pain. I do feel that
this is a work compensable condition.”
On October 9, 2013 appellant requested a review of the written record by an OWCP
hearing representative. In a decision dated March 31, 2014, the hearing representative affirmed
the September 27, 2013 decision. She determined that Dr. Veale’s report was insufficiently
rationalized to establish causal relationship.
2

The name of the physician is not legible.

2

On appeal, appellant contends that her physicians found that her right hand condition was
due to repetitive activities. She notes that it appears that in the March 31, 2014 decision,
OWCP’s hearing representative reviewed a claim for a male with a right shoulder condition and
medical evidence from a physician not associated with her case. Appellant describes her
difficulty performing activities with her condition and asserts that OWCP should have asked and
paid for additional medical information if it required more before accepting her claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 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.5
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;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing 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 the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant,9 must be one of reasonable medical certainty10 explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.11

3

Supra note 1.

4

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

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

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

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

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

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

11

Judy C. Rogers, 54 ECAB 693 (2003).

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ANALYSIS
Appellant attributed her right thumb condition to her work sorting and folding mail,
scanning packages and placing mail in boxes using a pinching motion. OWCP accepted the
occurrence of the claimed employment factors. The issue, therefore, is whether the medical
evidence establishes a causal relationship between the claimed conditions and the identified
employment factors.
In a report dated February 20, 2012, a physician diagnosed right thumb pain. On
March 29, 2012 a physician diagnosed tenosynovitis. The reports either contained an illegible
signature or no signature at all. As the authors of the reports could not readily be identified as
physicians, the reports are of no probative value and are insufficient to establish appellant’s
claim.12
On October 8, 2012 Dr. Cline described appellant’s “daily discomfort in her job due to
repeated gripping and heavy use of her hands.” He diagnosed right thumb basilar joint arthritis
and found that she should not perform any heavy lifting or gripping with her right upper
extremity. Again, however, while Dr. Cline noted that appellant experienced right thumb
symptoms at work, he did not directly attribute the basilar joint arthritis to her work duties. As
he did not address causation, his report is of little probative value on the issue of causal
relationship.13 Additionally, the fact that a disease or condition manifests itself during a period
of employment does not raise an inference of causal relationship between the condition and the
employment.14
In a report dated March 12, 2013, Dr. Veale reviewed appellant’s history of pain
beginning a year ago without a distinct injury. He noted that she performed repetitive work
duties that “seem[ed] to have resulted in pain at the base of the thumb.” Dr. Veale diagnosed
right thumb arthrosis at the CMC joint and intermittent ecchymosis of the dorsum of the thumb.
He recommended that appellant avoid repetitive overuse of the thumb. Dr. Veale’s finding,
however, that her work “seemed” to cause thumb pain is couched in speculative terms and thus
of little probative value.15 Further, he did not directly address the cause of appellant’s CMC joint
athrosis and intermittent ecchymosis; consequently, his opinion is insufficient to meet her burden
of proof.
On October 4, 2013 Dr. Veale related that appellant’s job duties as a postmaster required
repetitive motion and caused pain and degenerative arthrosis. He opined that her condition was
compensable. Dr. Veale did not, however, provide any rationale for his opinion other than to
note that appellant engaged in repetitive work duties. A physician’s opinion must be expressed
12

See Merton J. Sills, 39 ECAB 572 (1988).

13

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

14

See D.E., 58 ECAB 448 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

15

See Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship
need not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty).

4

in terms of a reasonable degree of medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors.16 As Dr. Veale did not adequately explain why appellant’s work duties
caused or aggravated her neck condition, his opinion is of diminished probative value.
On appeal, appellant argues that her physicians attributed her right hand condition to her
repetitive work duties. As discussed, however, she has the burden to submit rationalized medical
evidence showing a diagnosed condition causally related to the identified work factors.17
Appellant did not submit such evidence and thus failed to meet her burden of proof.
Appellant further maintains that OWCP should have requested additional medical
evidence. OWCP, however, sent her an April 15, 2013 letter advising her of the medical
evidence necessary to establish her claim; it is her burden of proof to establish a prima facie
case.
Appellant alleges that OWCP’s hearing representative reviewed medical evidence from
another claim. The hearing representative, however, was referencing the facts and law from a
Board case that she found was similar to the instant case rather than reviewing evidence from
another file to adjudicate appellant’s claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a right hand and
thumb condition causally related to factors of her federal employment.

16

See S.D., 58 ECAB 713 (2007).

17

See E.A., 58 ECAB 677 (2007); V.W., 58 ECAB 428 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE ARMY, TOOELE
ARMY DEPOT, Tooele, UT, Employer
__________________________________________

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

Docket No. 13-1830
Issued: December 19, 2013

Case Submitted on the Record

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

JURISDICTION
On August 2, 2013 appellant filed a timely appeal from a June 4, 2013 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days
elapsed between the last merit decision dated December 19, 2012 to the filing of this appeal and
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In a December 15, 1997 decision, the
Board affirmed October 12, 1994 and February 7, 1995 OWCP decisions reducing his wage-loss
1

5 U.S.C. § 8101 et seq.

compensation based on his capacity to earn wages as a parking lot attendant.2 The facts and
circumstances of the case as set forth in the Board’s prior decisions are hereby incorporated by
reference.3
In a June 12, 2012 report, Dr. Aubrey A. Swartz, a second opinion Board-certified
orthopedic surgeon, reviewed medical evidence and the statement of accepted facts and
conducted a physical examination. He concluded that appellant’s lumbar spine degenerative
changes were age related. Dr. Swartz opined that there was no evidence of any residuals from
the January 27, 1988 employment injury as the lumbar strain had resolved. In support of this
conclusion, he noted 24 years was “a long time for a strain to continue” particularly when there
was no evidence of disc herniation, spinal cord compression, nerve root compression or severe
degenerative changes.
On August 31, 2012 OWCP proposed to modify appellant’s loss of wage-earning
capacity decision to zero and to terminate his compensation benefits based upon the opinion of
Dr. Swartz that appellant no longer had any residuals or disability due to the accepted
employment injury.
In a letter dated September 29, 2012, appellant disagreed with the proposal, contending
that he was totally disabled. In support of his claim, he submitted medical evidence regarding
his medical treatment for various conditions including lumbago or back pain for the period
April 8, 2004 through August 26, 2012.
By decision dated December 19, 2012, OWCP modified appellant’s October 12, 1994
loss of wage-earning capacity determination and finalized the termination of his compensation
benefits effective December 16, 2012.
On May 14, 2013 appellant requested reconsideration and submitted factual and medical
evidence from 1994 and 1995.
Hospital reports dated January 7 and 12, 1994 noted that appellant was admitted and
treated for a gunshot wound.
In reports dated January 10 and 18, 1994, Dr. Jeffrey R. Saffle, a treating Board-certified
surgeon, and Dr. Thanh Van Nguyen, a resident, provided physical findings and medical history
and reported treating appellant for a gunshot wound to the thigh.
In a February 23, 1994 report, Dr. David E. Curtis, a second opinion Board-certified
orthoped surgeon, reviewed the statement of accepted facts and medical evidence, conducted a
physical examination and diagnosed mechanical back pain. He indicated that appellant was
disabled from his date-of-injury position and provided work restrictions.
2

Docket No 95-2110 (issued December 15, 1997).

3

On January 27, 1988 appellant, then a 35-year-old temporary woodworker helper, filed a traumatic injury claim
alleging that on January 26, 1988 he injured his lower back in the performance of duty. OWCP accepted the claim
for lumbosacral sprain. By letter dated August 2, 1991, it placed appellant on the periodic rolls for temporary total
disability.

2

In a September 23, 1994 report, Kevin S. Masters, Ph.D. and licensed clinical
psychologist, recommended a pyschiatric evaluation due to appellant’s long history of back pain
due to an employment-related injury. He diagnosed major depression based on appellant’s
symptoms.
In a report dated October 24, 1994, Dr. Steven V. Teynor, a treating Board-certified
psychatrist, diagnosed depression, chronic pain, bronchitis, procitis and severe disablity due to
chronic pain.
A January 18, 1995 magnetic resonance imaging scan (MRI) scan reported a small L4-5
left paracentral herniated nucleus pulposus without significant neural or spinal forminal
narrowing and lower three intervertebral degenerative disc disease.
In a Janaury 18, 1995 clinic note, Dr. Christopher R. Jones, a treating physician, noted
that appellant was referred for evaluation of a sleep disorder.
By decision dated June 4, 2013, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) submit relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.7
ANALYSIS
OWCP accepted appellant’s claim for lumbosacral sprain and placed him on the periodic
rolls for temporary total disability. The Board affirmed OWCP’s decision dated October 12,
1994 reducing appellant’s wage-loss compensation based on his capacity to earn wages as a
parking lot attendant and a February 7, 1995 decision denying modification of its October 12,
1994 decision reducing appellant’s wage-loss compensation. By decision dated December 19,
2012, it terminated compensation benefits based on the weight of Dr. Swartz’s June 12, 2012
4

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
5

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
6

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

3

second opinion examination report. Appellant requested reconsideration on May 14, 2013 and
submitted new evidence. OWCP denied the request on June 4, 2013, finding that he did not
present new and pertinent evidence warranting further merit review.
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. While appellant submitted medical reports from Drs. Curtis, Jones,
Masters, Saffle and Teynor for the period 1994 to 1995 and a January 18, 1995 MRI scan that
were not previously considered, this evidence is immaterial because it does not address whether
he still experienced residuals and disability due to the accepted lumbosacral sprain. The
submission of evidence that does not address the relevant issue involved does not constitute a
basis for reopening a case.8 Moreover, these reports do not address appellant’s current medical
condition or disability as they are dated years prior to Dr. Swartz’s June 12, 2012 opinion and
OWCP’s December 19, 2012 decision terminating his compensation.9
Appellant neither showed that OWCP erroneously applied or interpreted a specific point
of law nor advanced a relevant legal argument not previously considered by OWCP. Because he
failed to meet one of the standards enumerated under section 8128(a) of FECA, he was not
entitled to further merit review of his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

8

M.E., 58 ECAB 694 (2007); D’Wayne Avila, 57 ECAB 642 (2006).

9

Jaja K. Asaramo, 55 ECAB 200 (2004) (where the issue of whether appellant had continuing disability from his
accepted employment injury was medical in nature, he needed to submit relevant medical evidence to reopen the
claim on reconsideration).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2013 is affirmed.
Issued: December 19, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
DEPARTMENT OF STATE, INTERNATIONAL
BOUNDARY & WATER COMMISSION,
OFFICE OF COMMISSIONER, Mercedes, TX,
Employer
__________________________________________

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

Docket No. 07-1892
Issued: March 24, 2008

Case Submitted on the Record

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

JURISDICTION
On July 10, 2007 appellant filed a timely appeal from October 11, 2006 and June 22,
2007 decisions of the Office of Workers’ Compensation Programs, denying her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that her emotional
condition was causally related to a compensable employment factor.
FACTUAL HISTORY
On July 28, 2006 appellant, then a 56-year-old supply clerk, filed an occupational disease
claim alleging that she sustained an emotional condition beginning on February 20, 2000
causally related to factors of her employment. She alleged that her condition was caused by

harassment and a hostile work environment which she attributed to retaliation after she filed a
whistle-blower report and discrimination complaints with the employing establishment and the
Equal Employment Opportunity (EEO) Commission. Appellant contended that she was unfairly
charged with being absent without leave (AWOL), had to use sick leave when she experienced
headaches and had no sick leave balance, and was subject to unwarranted disciplinary actions
such as suspensions. In EEO complaints, she alleged that management treated her unfairly in
matters involving timesheets, leave, training and promotions. Appellant alleged that the
managers defamed her when she applied for a job with another government agency. She
submitted copies of disciplinary actions, including March 8, 2000 and September 23, 2003
suspensions and February 28, 2000 and July 26, 2006 notices of proposed suspension.
In decisions dated January 3, 2002 to August 28, 2006, the employing establishment
denied appellant’s complaints of discrimination. In decisions dated July 4, 2002 to August 25,
2004, the EEO Commission determined that appellant failed to establish her claims of
discrimination and a hostile work environment against the employing establishment.
Appellant submitted medical reports which diagnosed depression related to work stress.
By decision dated October 11, 2006, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that she sustained an emotional condition causally related to
a compensable factor of employment.
On October 14, 2006 appellant requested an oral hearing that was held on April 12, 2007.
By decision dated June 22, 2007, an Office hearing representative affirmed the
October 11, 2006 decision.1
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3

1

Subsequent to the June 22, 2007 Office decision, appellant submitted additional evidence. 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.
2

5 U.S.C. §§ 8101-8193.

3

Lillian Cutler, 28 ECAB 125 (1976).

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Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.4
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.5 When a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.6 As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.7 Where the claimant alleges compensable factors of employment,
she must substantiate such allegations with probative and reliable evidence.8 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, then the Office must base its decision on an analysis of the medical
evidence.9
ANALYSIS
Appellant alleged that her emotional condition was due to a number of employment
factors. She alleged that the employing establishment defamed her when she applied for a job
with another government agency. However, she submitted insufficient evidence to establish this
allegation as factual. Therefore, the allegation of defamation is not established as a compensable
factor of employment.
A number of appellant’s allegations concern personnel or administrative matters. The
Board has held that an administrative or personnel matter will be considered to be an
employment factor only where the evidence discloses error or abuse on the part of the employing
establishment.10 In determining whether the employing establishment erred or acted abusively,
the Board has examined whether the employing establishment acted reasonably.11 Appellant
4

Michael Thomas Plante, 44 ECAB 510 (1993).

5

Dennis J. Balogh, 52 ECAB 232 (2001).

6

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

7

See Charles E. McAndrews, 55 ECAB 711 (2004).

8

Joel Parker, Sr., 43 ECAB 220 (1991).

9

See Charles D. Edwards, 55 ECAB 258 (2004).

10

Id.

11

Janice I. Moore, 53 ECAB 777 (2002).

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alleged that she was unfairly charged with being AWOL, had to use sick leave when she
experienced headaches and had no sick leave balance, and was subject to unwarranted
disciplinary actions. The record shows that she filed numerous complaints with the employing
establishment and the EEO Commission. However, none of these complaints were resolved in
her favor. The employing establishment and EEO decisions found that appellant failed to
provide sufficient evidence of error or abuse in the handling of various administrative or
personnel matters, including timesheets, the use of leave, training, promotions and disciplinary
actions. Appellant failed to provide sufficient evidence to establish error or abuse in
management’s handling of administrative and personnel matters. Therefore, these allegations are
not deemed compensable employment factors.12
Appellant alleged that she was harassed and discriminated against at the employing
establishment. Mere perceptions of harassment or discrimination are not compensable under the
Act. Appellant’s burden of proof is not discharged with allegations alone. She must support her
allegations with probative and reliable evidence.13 Appellant alleged that her emotional
condition was caused by harassment and discrimination which she attributed to retaliation after
she filed a whistle-blower report and discrimination complaints with the employing
establishment and the EEO Commission. However, the EEO decisions found insufficient
evidence to support her allegations of harassment and discrimination by the employing
establishment. There is insufficient evidence of record that the employing establishment
harassed appellant or treated her unfairly. Therefore, the allegations of harassment and
discrimination are not deemed to be compensable employment factors.14
CONCLUSION
The Board finds that appellant failed to establish that her emotional condition was
causally related to a compensable factor of employment.

12

Charles D. Edwards, supra note 9.

13

Cyndia R. Harrill, 55 ECAB 522 (2004).

14

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 22, 2007 and October 11, 2006 are affirmed.
Issued: March 24, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
TENNESSEE VALLEY AUTHORITY, JOHN
SEVIER FOSSIL PLANT, Rodgersville, TN,
Employer
__________________________________________

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

Docket No. 09-2028
Issued: May 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 4, 2009 appellant filed a timely appeal of a March 16, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he had a ratable
hearing loss warranting a schedule award.
FACTUAL HISTORY
On October 16, 2008 appellant, then a 60-year-old electrician contractor, filed an
occupational disease claim alleging that he sustained hearing loss to both ears due to high noise
levels in the performance of duty. He first became aware of his hearing loss and related it to his
employment on March 9, 2007. Appellant noted that he could not hear small leaks in work

equipment, he had to increase the volume on his telephone, he asked relatives to speak louder
and coworkers had to repeat their statements. He did not stop work.
On October 27, 2008 the Office requested additional evidence. Appellant submitted
various employment records including audiograms dated between May 25, 1978 and
March 9, 2007.
In an undated statement, appellant noted that he was in the military from 1968 to 1971
where he fired weapons and worked on jet turbine engines. He worked on a dam project for the
employing establishment between 1972 and 1976 where he worked with rock drills,
jackhammers and chain saws. Beginning in 1976 appellant worked for the employing
establishment as an electrician and was exposed to noise from saws, drills, power tools, high
pressure air blast circuit breakers and high pressure air compressors.
In an undated statement, appellant’s supervisor noted that appellant was provided with
hearing protection at work. He advised that appellant was exposed to machinery noise from air
compressors and high voltage breaker operations that were typical of the nature of appellant’s
job. Appellant’s supervisor indicated that appellant was exposed to workplace noise between
three to five hours per day for three to five days per week.
The record also contains a December 11, 2008 report from Whitney Mauldin, an
employing establishment audiologist, who opined that appellant’s asymmetrical hearing loss was
inconsistent with his occupational noise exposure. Ms. Mauldin advised that appellant’s
March 9, 2007 audiogram results yielded no permanent impairment in both ears according to the
American Academy of Otolaryngology Guidelines.
On December 29, 2008 the Office referred appellant, with a statement of accepted facts,
to Dr. Leonard Brown, a Board-certified otolaryngologist, for a second opinion evaluation.
In a January 15, 2009 report, Dr. Brown noted that appellant had a history of noise
exposure associated with his employment since 1974 and significant hearing loss associated with
his employment beginning in 2007. He compared appellant’s prior audiogram results with the
evaluation performed that day on his behalf. At the time of appellant’s initial employment in
1974, he had essentially normal hearing, and then sustained noticeable hearing loss. Dr. Brown
noted that the left ear exceeded normal levels at 6,000 cycles per second (cps) in 1995 and
sustained a drop at 3,000 and 4,000 cps in 2007 consistent with appellant’s history. He also
noted this was confined predominantly to the left ear. Based on the hearing evaluation
performed during his examination, Dr. Brown found mild low frequency loss in the left ear at 30
decibels at 500 cps, normal hearing at 1,000 and 2,000 cps and a drop in the left ear at 3,000 and
4,000 cps to 40 and 35 decibels respectively. He diagnosed bilateral hearing loss. Dr. Brown
opined that appellant’s medical records were consistent with noise exposure encountered at the
employing establishment, but because of the asymmetrical character of hearing loss in the left
ear, he recommended a brain magnetic resonance imaging (MRI) scan to ensure there was no
underlying acoustic neuroma or similar problem in the left ear that contributed to the
preponderance of appellant’s hearing loss.

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In an otologic evaluation form of the same date, Dr. Brown advised that he was unable to
comment on audiometric data from the beginning of appellant’s workplace noise exposure as it
was an illegible report. Appellant’s 1974 report, however, showed normal hearing. Dr. Brown
indicated that present audiometric findings were inconsistent with presbycusis. He stated that
there were unknown levels of workplace noise exposure to determine if such exposure was
sufficient in intensity and duration to cause hearing loss, but that the levels exceeded
Occupational Safety and Health Administration (OSHA) standards. Dr. Brown noted that other
relevant history included military service in the 1960s.
He diagnosed asymmetrical
sensorineural hearing loss. Dr. Brown opined that appellant’s hearing loss was due to workplace
noise exposure but determining why the hearing loss was asymmetrical was not a work-related
issue. He recommended a brain MRI scan. In an addendum report of the same date, Dr. Brown
found right nasal septal deviation with Grade 3 palate. A January 15, 2009 audiogram performed
on his behalf showed the following decibel losses at frequencies of 500, 1,000, 2,000 and 3,000
cps: 15, 15, 10 and 15 for the right ear and 30, 10, 10 and 40 for the left ear. Dr. Brown
indicated that the audiometric test results were valid and representative of appellant’s hearing
sensitivity.
On March 4, 2009 an Office medical adviser reviewed the medical evidence from
Dr. Brown and advised that the date of Dr. Brown’s report was the date of maximum medical
improvement. He applied the Office’s standard for evaluating hearing loss and determined that
appellant had a zero percent monaural hearing loss in the right ear and a zero percent monaural
hearing loss in the left ear. The medical adviser concluded that appellant had no binaural hearing
loss and that hearing aids were not authorized. He noted that appellant should be advised that the
second opinion physician recommended a brain MRI scan to rule out acoustic neuroma, but that
this would not be work related.
In a March 16, 2009 decision, the Office accepted appellant’s claim for hearing loss. It
further found that appellant’s hearing loss was not severe enough to be considered ratable for
schedule award purposes. The Office also found that the medical evidence showed that appellant
would not benefit from hearing aids. It also advised that the recommended brain MRI scan
would not be considered a work-related medical test.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations 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. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of

1

5 U.S.C. §§ 8101-8193.

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Permanent Impairment (5th ed. 2001) (A.M.A., Guides) has been adopted by the Office for
evaluating schedule losses and the Board has concurred in such adoption.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each
frequency are added up and averaged. Then, the “fence” of 25 decibels is deducted because, as
the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to
hear everyday speech under everyday conditions. The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss. The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.3
ANALYSIS
Appellant submitted a schedule award claim for hearing loss. The Office developed the
claim by referring him to Dr. Brown. On January 15, 2009 Dr. Brown examined appellant and
audiometric testing was performed on the physician’s behalf. He opined that noise exposure at
appellant’s workplace was sufficient to cause asymmetrical sensorineural hearing loss.
Dr. Brown did not indicate whether appellant required hearing aids.
An Office medical adviser applied the Office standard procedures to the January 15, 2009
audiogram. It tested decibel losses at 500, 1,000, 2,000 and 3,000 cps and recorded decibel
losses of 15, 15, 10 and 15 respectively in the right ear. The total decibel loss in the right ear is
55 decibels. When divided by 4, the result is an average hearing loss of 13.75 decibels. The
average loss of 13.75 is reduced by the fence of 25 decibels to equal 0, which when multiplied by
the established factor of 1.5, resulted in 0 percent impairment of the right ear. The audiogram
tested decibel losses for the left ear at 500, 1,000, 2,000 and 3,000 cps and recorded decibel
losses of 30, 10, 10 and 40 respectively for a total decibel loss of 90 decibels. When divided by
4, the result is an average hearing loss of 22.5 decibels. The average loss of 22.5 decibels is
reduced by the fence of 25 decibels to equal 0, which when multiplied by the established factor
of 1.5, resulted in 0 percent impairment of the left ear. The medical adviser found no medical
need for hearing aids. The Board finds that the Office medical adviser properly applied the
standards to the findings of the January 15, 2009 audiogram and concluded that appellant did not
have a ratable hearing loss for schedule award purposes. There is no audiogram of record,
reviewed by a physician, to establish that appellant has a ratable hearing loss.
Appellant argued that his hearing loss affected his daily life as he had to increase the
volume on his phone, ask relatives to speak louder and coworkers had to repeat their statements.
The Board notes that the Office applied its standardized procedure for calculating permanent
impairment based on loss of hearing. Appellant’s hearing loss is not ratable for schedule award
2

R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

3

E.S., 59 ECAB ___ (Docket No. 07-1587, issued December 10, 2007); Donald Stockstad, 53 ECAB 301 (2002),
petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).

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purposes. The Board has held that factors such as limitations on daily activities do not factor
into the calculation of a schedule award.4
Consequently, the Board finds that the weight of the medical evidence establishes that
appellant has no ratable loss of hearing pursuant to the A.M.A., Guides.
CONCLUSION
The Board finds that appellant does not have a ratable hearing loss for schedule award
purposes.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 16, 2009 is affirmed.
Issued: May 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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E.L., 59 ECAB ___ (Docket No. 07-2421, issued March 10, 2008).

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