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

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

Docket No. 12-1448
Issued: December 4, 2012

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 June 27, 2012 appellant filed a timely appeal from a January 4, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
eye injury in the performance of duty on February 24, 2011.
FACTUAL HISTORY
On February 25, 2011 appellant, then a 53-year-old BMET employee, filed a traumatic
injury claim (Form CA-1) alleging that on February 24, 2011 she sustained a face and front
injury after a coworker flung wet debris in her face at 11:43 p.m. The employing establishment
1

5 U.S.C. § 8101 et seq.

controverted the claim. Appellant notified her supervisor and first received medical care on
February 25, 2011.
In a March 2, 2011 electronic correspondence, appellant’s supervisor, Mariamma
Paulose, reported that on February 24, 2011 all of the work was finished in her unit and she went
home around 11:30 p.m. At approximately 11:45 p.m. after Ms. Paulose had left, a clerk came
inside to end his tour at midnight. Appellant was inside talking to another female coworker
when the clerk saw appellant yawning and told her to “wake up,” shaking his umbrella towards
her from about 10 feet away. Ms. Paulose stated that both parties informed her that this occurred
and speculated that the clerk’s actions possibly caused a few drops of water to fall on appellant’s
shirt. She further noted that appellant did not seek immediate medical attention despite being the
safety captain and medical emergency person in the unit. The next day on February 25, 2011,
appellant informed Jill Lindsey, manager, about what had happened. Ms. Lindsey informed
Ms. Paulose about the situation who took appellant to seek emergency treatment on that date.
By letter dated March 7, 2011, the employing establishment controverted the claim. It
found that the statement by appellant’s supervisor casted doubt upon the validity of the claim.
The employing establishment further noted that an eye condition results in immediate irritation
and that appellant made no mention of an eye irritation or condition to her supervisor until 24
hours after the alleged incident. It stated that it was doubtful that she would wait 24 hours before
seeking medical attention for an eye condition given the seriousness of this type of injury.
By letter dated March 15, 2011, OWCP informed appellant that the evidence of record
was insufficient to support her claim. It requested additional factual and medical evidence and
provided her 30 days to respond.
In a February 25, 2011 emergency room (ER) report, Dr. Sachin R. Parekh, Boardcertified in family medicine, reported that appellant arrived at the ER stating that a coworker
accidentally threw a towel with wet debris towards her the previous night and some of this fluid
had gotten into her eye. He noted that appellant’s eye was minimally pink with no reports of
blurred vision. Dr. Parekh diagnosed corneal abrasion of the right and left eye, prescribed
tobramycin drops and released appellant to follow up at St. Francis Occupational Health if her
symptoms continued.
In a March 1, 2011 medical report, Dr. George Moore, Board-certified in occupational
medicine, reported that appellant was a postal worker who injured both eyes at work on
February 24, 2011 when another employee shook a wet umbrella towards her face. Appellant
stated that she was stunned and her face started itching after the incident occurred. She
attempted to rinse her face and eyes but the itching and irritation continued, causing her to seek
emergency treatment on February 25, 2011 when she was diagnosed with corneal abrasion.
Upon physical examination, Dr. Moore noted mild conjunctival injection in both eyes with no
corneal defects noted or foreign bodies seen. He diagnosed bilateral corneal abrasion, prescribed
gentamicin eye drops and recommended that appellant remain off duty until evaluated by a
specialist.
In a March 4, 2011 medical note, Dr. Kevin Dinowitz, a Board-certified ophthalmologist,
reported that a coworker shook a wet umbrella at appellant on February 24, 2011 which exposed

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her to debris and irritated her eyes, causing her to go to the ER the next day. He recommended
that appellant return to regular duty on March 7, 2011.
By decision dated April 15, 2011, OWCP denied appellant’s claim finding that the
evidence did not establish that she sustained an injury and also failed to establish that the
incident occurred as alleged. It noted that she gave conflicting stories regarding the alleged
February 24, 2011 employment incident and failed to respond to OWCP’s March 15, 2011
development letter requesting a statement detailing what actually occurred on that date.
On May 5, 2011 appellant requested an oral hearing before the Branch of Hearings and
Review. In her narrative statement, she reported that, on February 24, 2011, she was doing a
walk through at the end of her shift to make sure that everything was locked on her side of the
unit. Appellant stated that she was standing by the wall when a coworker came in and flung wet
debris towards her from his umbrella, hitting her face and front of body. She stated that she
immediately informed Steven Joseph, a supervisor, about what had happened, telling him that it
was unacceptable and appalling. Appellant stated that her face had already begun feeling
irritated and itchy and she attempted to irrigate her face and eyes with water. She stated that she
could not think clearly and attempted to look for Mr. Joseph, e-mailed Ms. Lindsey and e-mailed
Ms. Paulose who had already left for the day. Appellant left work and telephoned Ms. Lindsey a
few hours later explaining what had happened to her. She sought immediate emergency
treatment the next day for irritation to her eyes.
In a February 25, 2011 witness statement, Cynthia Cook, appellant’s coworker, reported
that on February 24, 2011 at approximately 11:40 p.m. she was talking to appellant when a man
with an umbrella came and shook it in front of her. Water from the umbrella splashed on
appellant’s face causing her to use both hands to wipe her face clean.
In a March 1, 2011 progress note, Dr. Moore stated that appellant sought treatment after a
coworker shook a wet umbrella in her face on February 24, 2011. In an April 7, 2011 medical
report, he stated that she was treated on March 1, 2011 for a work-related bilateral eye injury.
Appellant was first treated at St. Francis Hospital on February 25, 2011 and diagnosed with
corneal abrasions. Dr. Moore noted that, although her abrasions had healed by the time he
examined her, appellant was still complaining of itching and foreign body sensation and was
referred to an ophthalmologist.
In an April 27, 2011 medical report, Dr. Ronald Kimmel, Board-certified in internal
medicine, reported that appellant sought follow-up treatment for post-traumatic stress disorder
and that her condition had improved. Upon physical examination, he noted no eye symptoms.
At the October 12, 2011 hearing, Ms. Cook provided witness testimony and stated that,
on February 24, 2011, she was talking to appellant when another coworker walked by with a wet
umbrella and flung it in appellant’s face. She stated that he shook the umbrella once and this
resulted in a lot of water on appellant’s face, causing appellant to wipe her face immediately
after it happened. Ms. Cook stated that she asked appellant if she was alright and appellant
responded that she was very upset that he would do something like that. The hearing
representative asked Ms. Cook if appellant reported anything other than being upset immediately
after the incident. Ms. Cook stated that she did not.

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During the hearing, appellant testified that she was talking to Ms. Cook on February 24,
2011 when a coworker came by and flung a wet umbrella in her face. She stated that, at the
time, it was raining extremely hard outside. Appellant was shocked and wiped her face, realizing
after that debris had gone into her eye. She stated that she spoke to Mr. Joseph who walked by
immediately after the incident happened and explained to him the situation. Appellant stated that
Mr. Joseph witnessed the wetness on her face and shirt. She then proceeded to rinse and irrigate
her face and eyes. Appellant further stated that she felt uncomfortable after what had happened,
went home and called and e-mailed Ms. Lindsey to inform her of the situation. She stated that
her eyes continued to bother her overnight. About 12 hours later, appellant reported to work and
after speaking with Ms. Lindsey, Ms. Paulose took her to seek emergency medical treatment.
She testified that her physician diagnosed bilateral corneal abrasion and that she was seeking
treatment for post-traumatic stress disorder due to the February 24, 2011 employment incident.
Appellant further argued that management never investigated the situation and Ms. Paulose’s
own statement corroborated her story that a coworker shook his wet umbrella in her face. The
record was held open for 30 days.
By decision dated January 4, 2012, the hearing representative affirmed OWCP’s
April 15, 2011 decision finding that the evidence did not establish that the incident occurred as
alleged. It also noted that appellant failed to establish a diagnosed medical condition causally
related to the alleged employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed 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 occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
2

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

3

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

4

Elaine Pendleton, supra note 2.

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incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.5 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.6
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on
the employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.7
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.8 The opinion of the physician must be based on one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
The Board finds that appellant failed to establish that she sustained bilateral corneal
abrasion in the performance of duty on February 24, 2011.
Appellant must establish all of the elements of her claim in order to prevail. She must
prove her employment, the time, place and manner of injury, a resulting personal injury and that
her injury arose in the performance of duty. In its January 4, 2012 decision, OWCP found that
appellant did not establish that the incident occurred at the time, place and in the manner alleged.
The Board finds, however, that the evidence of record is sufficient to establish that the
February 24, 2011 incident occurred, as alleged.
5

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
6

Supra note 4.

7

Betty J. Smith, 54 ECAB 174 (2002).

8

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

9

James Mack, 43 ECAB 321 (1991).

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Appellant alleged that she sustained an injury at work on February 24, 2011 when a
coworker shook a wet umbrella at her, causing water and debris to splash on her face. Her Form
CA-1 noted that a coworker flung wet debris in her face and her statements have been consistent
in indicating that this coworker shook a wet umbrella towards her. Appellant also provided a
witness statement from Ms. Cook who stated that this coworker shook his wet umbrella at
appellant. Ms. Cook also testified at the October 12, 2011 hearing with respect to witnessing this
incident, stating that appellant’s face was wet, causing her to wipe the wetness away with her
hands. Appellant provided one basic account of the mechanism of the employment incident and
reported the incident to a supervisor that same evening, as well as upon her arrival to work the
next morning. Moreover, she sought medical treatment and filed a Form CA-1 the following
day. Not only have her statements been consistent, but appellant has also corroborated her
allegations through Ms. Cook’s narrative statement and testimony.
The employing establishment controverted the claim but acknowledged that appellant’s
coworker shook his wet umbrella toward her. In a March 2, 2011 electronic correspondence,
Ms. Paulose stated that both parties informed her of the same facts.
The Board notes that, although Dr. Parekh’s February 25, 2011 emergency room report
stated that a coworker accidentally threw a towel with wet debris towards appellant and some of
this fluid got into her eye, the factual evidence of record overwhelmingly and consistently states
that appellant’s coworker shook a wet umbrella towards her. The Board finds that, given the
above-referenced evidence, appellant has alleged with specificity that the incident occurred at the
time, place and in the manner alleged.10
In a February 25, 2011 emergency room report, Dr. Parekh noted that appellant’s eye was
minimally pink with no reports of blurry vision and diagnosed bilateral corneal abrasion. In a
March 1 and April 7, 2011 medical report, Dr. Moore reported that appellant was a postal worker
who injured both eyes at work on February 24, 2011 when another employee shook a wet
umbrella in her face. He noted mild conjunctival injection in both eyes with no corneal defects
or foreign bodies seen upon physical examination. Dr. Moore diagnosed bilateral corneal
abrasion.
The Board finds that the medical evidence of record establishes a diagnosis of bilateral
corneal abrasion. Given that appellant has established a diagnosed condition, the question
becomes whether the February 24, 2011 incident caused this condition. She must submit
rationalized medical evidence to establish that her diagnosed medical condition is causally
related to the accepted February 24, 2011 employment incident.
While the reports of Dr. Parekh and Dr. Moore establish a diagnosis of bilateral corneal
abrasion, they are not rationalized as to the issue of causal relation. Dr. Parekh’s February 25,
2011 report contains an incorrect history of the employment incident, noting that appellant’s
coworker threw a wet towel with debris towards her. Moreover, his report did not reflect
Dr. Parekh’s own medical opinion on the cause of appellant’s injury, rather than those of
appellant. While Dr. Moore provided an accurate account of the February 24, 2011 employment
incident, he failed to provide any explanation regarding how the incident accepted in this case
10

See Willie J. Clements, 43 ECAB 244 (1991).

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caused or contributed to appellant’s bilateral corneal abrasion. The physicians did not provide a
detailed discussion of appellant’s medical history, merely recounted the incident as described by
her, did not determine that her condition was work related and did not offer a rationalized
opinion on the issue of causal relationship.11 Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.12 The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.13 The
reports of Dr. Parekh and Dr. Moore do not meet that standard and are insufficient to meet
appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Dinowitz’s March 2, 2011 report merely noted that a coworker shook a wet umbrella
at appellant on February 24, 2011 which exposed her to debris and irritated her eyes but failed to
diagnose a clear medical condition. Dr. Kimmel’s April 27, 2011 medical report is of no
probative value as he noted no eye symptoms and failed to provide a diagnosis other than posttraumatic stress disorder. Thus, the reports of Dr. Dinowitz and Dr. Kimmel do not constitute
probative medical evidence because they fail to provide a firm medical diagnosis and do not
adequately explain the cause of appellant’s eye injury.14
While appellant has established that the February 24, 2011 incident occurred as alleged,
she has failed to establish a causal relationship between that incident and her bilateral corneal
abrasion. Thus, she has failed to establish her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
bilateral corneal abrasion is causally related to the accepted February 24, 2011 employment
incident.

11

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

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

See Lee R. Haywood, 48 ECAB 145 (1996).

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

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ORDER
IT IS HEREBY ORDERED THAT the January 4, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: December 4, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1073
Issued: December 12, 2012

Case Submitted on the Record

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

On April 10, 2012 appellant filed a timely appeal from the December 16, 2011 decision
of the Office of Workers’ Compensation Programs (OWCP). The stated issue was whether
appellant had submitted new and relevant evidence sufficient to warrant review of its prior
decision. OWCP then set forth the three legal standards for obtaining a merit review under
section 8128(a) of the Federal Employees’ Compensation Act (FECA).1 It ultimately determined
that appellant’s reconsideration request failed to meet at least one of those standards. OWCP
specifically found that appellant failed to demonstrate that it had erroneously applied or
interpreted a point of law; he did not advance a point of law or facts not previously considered;
and he did not submit relevant and pertinent evidence not previously considered by OWCP.
At the same time, the decision’s cover letter indicated that OWCP had reviewed the
merits of his case. In the “Background” portion of the decision, OWCP stated that appellant’s
appeal request form and reconsideration letter were new “and a merit review was carried out
under 5 U.S.C. [§] 8128.” The “Basis for Decision” portion of the decision, however, noted
similar or repetitious arguments and the lack of any new supporting evidence. It also noted an
inconsistent argument. OWCP concluded that the evidence was not sufficient to warrant
1

5 U.S.C. § 8128(a).

modification of its prior decision and appeal rights indicated that appellant could request
reconsideration.
Section 8124 of FECA provides that OWCP shall determine and make a finding of facts
and make an award for or against the payment of compensation.2 Implementing regulations
provide that OWCP’s decision shall contain findings of fact and a statement of reasons.3
Further, OWCP procedures state that the reasoning behind OWCP’s decision should be clear
enough for the reader to understand the precise defect and the kind of evidence that would
overcome it.4
The Board finds that OWCP’s December 16, 2011 decision fails to explain clearly
whether OWCP has, on the one hand, reopened appellant’s case and reviewed the merits of the
claim, or whether it has, on the other hand, denied a reopening of his case without reviewing the
merits of his claim on the grounds that his reconsideration request did not meet at least one of the
three standards under section 8128(a). The decision is not clear enough for the reader to
understand the nature of the decision.
Accordingly, the Board will set aside OWCP’s December 16, 2011 decision and return
the case to OWCP for a final decision that contains appropriate findings of fact and a clear
statement of reasons. In particular, the decision shall make clear whether OWCP is denying
appellant’s reconsideration request without reopening his case or whether it is granting his
reconsideration request and reviewing the merits of his case.5

2

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

3

20 C.F.R. § 10.126; see M.L., Docket No. 09-956 (issued April 15, 2010); O.R., 59 ECAB 432 (2008); Teresa A.
Ripley, 56 ECAB 528 (2005).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

5

See J.J., Docket No. 11-1958 (issued June 27, 2012) (order remanding case on the grounds that OWCP denied
modification of a wage-earning capacity determination while at the same time finding that the additional evidence
was repetitive, duplicative, irrelevant and insufficient to establish clear evidence of error, all elements of a nonmerit
review).

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IT IS HEREBY ORDERED THAT the December 16, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: December 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 19-1268
Issued: April 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 20, 2019 appellant filed a timely appeal from a December 4, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $6,390.34 for the period March 21 through May 26, 2018 because she continued to
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the December 4, 2018 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

receive wage-loss compensation following her return to full-duty work; and (2) whether OWCP
properly found that appellant was at fault in the creation of the overpayment, thereby precluding
waiver of recovery of the overpayment.
FACTUAL HISTORY
On October 8, 2014 appellant, then a 57-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she sustained injuries to her shoulders, knees, low and
mid back, and sacral area due to her repetitive federal work duties, including standing, walking,
bending, stooping, grabbing, lifting, and reaching. On May 7, 2015 OWCP accepted the claim for
other bilateral affections of the shoulder region, bilateral sprain of the knee and leg, tear of the
medial meniscus of the right knee, thoracic or lumbosacral neuritis or radiculitis, degeneration of
lumbar or lumbosacral intervertebral disc, bilateral chondromalacia patellae, and tear of the lateral
meniscus of the right knee. The acceptance letter informed appellant that wage-loss compensation
for total disability was available only if she was unable to perform the duties of her regular position
and that she should notify OWCP if she returned to work or obtained new employment. OWCP
also advised appellant that, if she received compensation payments by electronic funds transfer
(EFT), she should monitor her EFT deposits carefully, at least every two weeks. If she worked
during a period in which she received compensation, she should notify OWCP in order that the
overpayment could be collected.
OWCP paid appellant wage-loss compensation for total disability on the supplemental
rolls, effective May 14, 2015, and on the periodic rolls, effective May 1, 2016. Appellant received
wage-loss compensation by EFT payments.
By letter dated June 2, 2016, OWCP explained how the compensation rate was determined.
It also informed appellant that, in order to minimize the possibility of an overpayment of
compensation, she should notify OWCP immediately when she returned to work. OWCP again
advised appellant to monitor her EFT payments carefully, at least every two weeks.
In a May 7, 2018 telephone memorandum (Form CA-110), appellant informed OWCP that
she had returned to full-duty work on March 21, 2018. In a report of termination of disability
and/or payment (Form CA-3) dated May 23, 2018, the employing establishment also informed
OWCP that appellant had returned to full-duty work on March 21, 2018. It requested that OWCP
remove her from the periodic rolls and declare an overpayment of compensation.
In a compensation termination calculation worksheet, OWCP terminated appellant’s wageloss compensation on March 21, 2018. Additionally, it noted that, for the compensation period
March 21 to 31, 2018, appellant received an overpayment of $1,049.16 on March 31, 2018, for the
compensation period April 1 to 28, 2018, appellant received an overpayment of $2,670.59 on
April 28, 2018, and for the compensation period April 29 to May 26, 2018, appellant received an
overpayment of $2,670.59 on May 26, 2018, for a total overpayment of $6,390.34.
On October 22, 2018 OWCP advised appellant of its preliminary overpayment
determination that she had received an overpayment of compensation in the amount of $6,390.34
for the period March 21 through May 26, 2018 because she received compensation for total
disability after she returned to full-duty work on March 21, 2018. It also made a preliminary

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finding that she was at fault in the creation of the overpayment because she had accepted payments
that she knew or reasonably should have known to be incorrect. OWCP explained that over 30
days had elapsed since the EFT deposit was made, which allowed appellant ample time to receive
and review a statement from her financial institution which showed the details of the improper
payment. It requested that she complete an overpayment action request form and an overpayment
recovery questionnaire (Form OWCP-20), and submit supporting financial documentation.
Additionally, OWCP informed appellant that she could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing.
In a Form OWCP-20 dated November 6, 2018, appellant listed total monthly income of
$1,192.00 and total monthly expenses of $1,780.00. She reported assets of $3,323.00 from cash
and checking and savings accounts. Appellant submitted supporting financial documentation.
OWCP, by decision dated December 4, 2018, finalized the preliminary overpayment
determination that appellant received an overpayment of compensation in the amount of $6,390.34
for the period March 21 through May 26, 2018 because she continued to receive wage-loss
compensation following her return to full-duty work. It determined that she was at fault in the
creation of the overpayment as she accepted compensation payments which she knew or should
have known were incorrect. OWCP ordered appellant to repay the $6,390.34 overpayment in full
within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.4 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $6,390.34 for the period March 21 through May 26, 2018
because she continued to receive wage-loss compensation following her return to full-duty work.

3

Supra note 1 at § 8102(a).

4

Id. at § 8116(a).

5

M.P., Docket No. 20-1035 (issued December 1, 2020); L.T., Docket No. 19-1389 (issued March 27, 2020); B.H.,
Docket No. 09-0292 (issued September 1, 2009); Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure
Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter 6.300.4(g) (September 2018).

3

The record establishes that appellant returned to full-duty work at the employing
establishment on March 21, 2018. OWCP continued to pay appellant wage-loss compensation for
total disability from March 21 through May 26, 2018. As noted above, she was not entitled to
receive compensation for total disability after her return to work.6 Thus, an overpayment of
compensation was created in this case.
With regard to the amount of overpayment, the Board finds that OWCP properly calculated
appellant’s compensation paid for the period March 21 through May 26, 2018. Thus, the Board
finds that appellant received an overpayment of compensation in the amount of $6,390.34 for the
period March 21 through May 26, 2018.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that adjustment or recovery by the United States may not
be made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.7 A claimant who is at fault in the creation of the overpayment is not entitled to waiver.8
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.9
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.10
Section 10.433(b) of OWCP’s regulations provides that whether or not an individual was
at fault with respect to the creation of an overpayment depends on the circumstances surrounding

6

Supra notes 4 and 5.

7

5 U.S.C. § 8129(b).

8

See J.S., Docket No. 19-1363 (issued April 10, 2020); B.R., Docket No. 18-0339 (issued January 24, 2019); K.E.,
Docket No. 18-0687 (issued October 25, 2018); Gregg B. Manston, 45 ECAB 344, 354 (1994); Robert W. O Brien,
36 ECAB 541, 547 (1985).
9

20 C.F.R. § 10.433(a).

10

Id. at § 10.433(b); see also M.P., supra note 5; L.T., supra note 5.

4

the overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being overpaid.11
The Board has held that an employee who receives payments from OWCP in the form of
a direct deposit may not be at fault the first time incorrect funds are deposited into his or her
account, as the acceptance of the resulting overpayment lacks the requisite knowledge.12 The
Board has also held in cases involving a series of incorrect payments, where the requisite
knowledge is established by a letter or telephone call from OWCP, or simply with the passage of
time and a greater opportunity for discovery, the claimant will be at fault for accepting the
payments subsequently deposited.13 Previous cases have held that receiving one erroneous direct
deposit payment does not necessarily create the requisite knowledge to find that a claimant was at
fault in the creation of the overpayment.14
ANALYSIS -- ISSUE 2
The Board finds that appellant was not at fault in creation of the overpayment for the period
March 21 through 31, 2018.
OWCP paid appellant compensation by direct deposit every 28 days. Appellant returned
to work on March 21, 2018. The first direct deposit she received after her return to work was made
on March 31, 2018. There is no documentation or other evidence to demonstrate that appellant
had clear knowledge at the time the bank received the March 31, 2018 direct deposit that the
payment was incorrect.15 The Board thus finds that she was without fault in accepting the initial
direct deposit covering the period of the overpayment from March 21 to 31, 2018.
The Board further finds that appellant was at fault in the creation of the overpayment for
the remaining direct deposit payments for the period April 1 through May 26, 2018.16
Although OWCP may have been negligent in making incorrect payments, this does not
excuse a claimant from accepting payments he or she knew or should have known to be incorrect.17
In cases involving a series of incorrect payments, where the requisite knowledge is established by
documentation from OWCP or simply with the passage of time and opportunity for discovery, a

11
Id. at § 10.433(b); see also C.P., Docket No. 20-0648 (issued December 21, 2020); D.M., Docket No. 17-0983
(issued August 3, 2018).
12

See Tammy Craven, 57 ECAB 689 (2006); see also A.B., Docket No. 18-0922 (issued January 3, 2019).

13

See Tammy Craven, id.; see also S.D., Docket No. 17-0309 (issued August 7, 2018).

14

See C.H., Docket No. 19-1470 (issued January 24, 2020).

15

See M.P., supra note 5; K.K., 19-0978 (issued October 21, 2019); K.E., supra note 8.

16

See M.P., supra note 5; K.P., Docket No. 19-1151 (issued March 18, 2020); D.W., Docket No. 15-0229 (issued
April 17, 2014).
17
See M.P., supra note 5; B.W., Docket No. 19-0239 (issued September 18, 2020); L.T., supra note 5; P.B., Docket
No. 19-0329 (issued December 31, 2019); C.G., Docket No. 15-0701 (issued December 9, 2015).

5

claimant will be at fault for accepting the payments subsequently deposited.18 By the time of the
second and third payments, appellant should have known that she was not entitled to the same
amount of wage-loss compensation as she had received prior to her return to work on
March 21, 2018.19 After her receipt of the first direct deposit following her return to work, she
was on notice that OWCP began to make payments to her in error and knew or should have known
that she was not entitled to the benefits of the subsequent direct deposits.
In letters dated May 7, 2015 and June 2, 2016, OWCP advised appellant that an
overpayment of compensation would be created if she returned to work, but continued to receive
wage-loss compensation. It informed her that she should monitor her EFT deposits carefully, and
immediately advise OWCP if she worked for any portion of the period for which a deposit was
made. Therefore, by the time appellant received the second direct deposit on April 28, 2018,
covering the period April 1 to 28, 2018, and the third direct deposit on May 26, 2018, covering the
period April 29 to May 26, 2018, she knew or should have known that the continued payments
were incorrect. The Board therefore finds that OWCP properly found that she was at fault in the
creation of the overpayment from April 1 to May 26, 2018.
The Board therefore finds that this case is not in posture for decision regarding the issue of
waiver of recovery of the overpayment for the period March 21 through 31, 2018. The Board will
set aside the December 4, 2018 decision regarding the issue of fault for that period and remand the
case to OWCP to determine whether appellant is entitled to waiver of recovery of the overpayment
covering the period March 21 through 31, 2018.20
The Board further finds that appellant was at fault in the creation of the overpayment
resulting for the remaining direct deposit payments for the period April 1 through May 26, 2018,21
thereby precluding waiver of recovery of the overpayment.
CONCLUSION
The Board finds that at OWCP properly determined that appellant received an overpayment
of compensation in the amount of $6,390.34 for the period March 21 through May 26, 2018
because she continued to receive wage-loss compensation following her return to full-duty work.
The Board further finds that appellant was without fault in the creation of the overpayment for the
period March 21 through 31, 2018, but was at fault in the creation of the overpayment for the
period April 1 through May 26, 2018. The case will be remanded to OWCP to consider waiver of
recovery of the overpayment for the period March 21 through 31, 2018.

18

See B.W., id.; L.T., supra note 5.

19

Id.

20

M.P., supra note 5; B.W., supra note 17; L.T., supra note 5; K.K., supra note 15.

21

Id.

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ORDER
IT IS HEREBY ORDERED THAT the December 4, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: April 2, 2021
Washington, DC

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

Janice B. Askin, 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
__________________________________________
C.C., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
ALBANY AREA OFFICE, New York, NY,
Employer
__________________________________________

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

Docket No. 08-1512
Issued: January 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 29, 2008 denying his 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 met his burden of proof to establish that he sustained a
noise-induced hearing loss causally related to factors of his federal employment.
FACTUAL HISTORY
On October 18, 2007 appellant, then a 60-year-old safety and occupational health
specialist, filed an occupational disease claim alleging that his hearing loss was caused by factors
of his federal employment. He indicated that he first became aware of his condition on May 3,
2006 and realized its relation to his employment on September 15, 2007. Appellant advised

audiometric results in 2006 indicated hearing loss and such hearing loss was confirmed in a 2007
audiogram. He has not stopped work as a result of this condition.
By letter dated October 30, 2007, the Office informed appellant of the evidence needed to
support his claim. Appellant was asked to provide a history of employment and a description of
any hearing problems, together with any previous hearing tests and medical reports from a
physician who examined or treated him for an ear or hearing problem. The Office advised that,
for each job title, appellant should describe the sources of noise and the number of hours of
exposure each day. In an accompanying letter, it asked the employing establishment to submit
information regarding noise exposure and medical examinations, including audiograms.
The employing establishment submitted records of audiometric testing from 1988
to 2007. Audiograms from 1999 were noted as being abnormal with no change from baseline.
In a November 13, 2007 statement, appellant described his past and current noise
exposure. He indicated that exposure was dependent upon the type of inspection conducted and
his inspection schedule. Appellant stated that most of the time he only found out how noisy it
was after he started his inspection or walked into a noisy area. He indicated that he always uses
earplugs or earmuffs. Appellant reiterated that occupational physicians told him in 2006 and
2007 that he had a hearing loss.
By decision dated January 29, 2008, the Office denied appellant’s claim on the grounds
he failed to establish that he sustained an employment-related 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 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) a 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
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion must be one of reasonable medical certainty and must be supported by
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

2

medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.6 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
ANALYSIS
Appellant failed to submit sufficient evidence to establish that he sustained hearing loss
causally related to factors of his federal employment. In particular, he has not sufficiently
identified employment factors alleged to have caused or contributed to the presence or
occurrence of his claimed hearing loss. In its October 30, 2007 letter, the Office advised
appellant of the evidence needed to establish his hearing loss claim. It specified that, for each
job title, appellant should describe the sources of noise and the number of hours of exposure each
day. However, appellant did not submit a complete description of the sources of exposure to
hazardous noise responsible for his claimed hearing loss. He indicated that exposure was
dependent upon the type of inspection conducted and his inspection schedule. However,
appellant did not describe any specific source of noise and the duration and frequency of such
exposure, for any inspection where he encountered workplace noise. Additionally, the medical
evidence submitted failed to relate appellant’s hearing loss to his employment.
Appellant has not provided the required factual and medical evidence necessary to
establish a prima facie claim for compensation benefits under the Act.8 He failed to meet his
burden of proof to establish an employment-related hearing loss.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an employment-related hearing loss.
4

Solomon Polen, 51 ECAB 341 (2000).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

See Richard A. Weiss, 47 ECAB 182 (1995).

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ORDER
IT IS HEREBY ORDERED THAT the January 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
INTERNATIONAL AIRPORT/WAGNER
STATION POST OFFICE, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 20-1270
Issued: May 11, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 9, 2020 appellant filed a timely appeal from a May 8, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 8, 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On September 19, 2019 appellant, then a 50-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he sustained pain and spasms in his middle
and lower back area due to factors of his federal employment. He alleged that he repetitively bent
over, sorted through hampers, and lifted/moved around parcels within the hamper. Appellant
indicated that he became (what -- aware)of the condition and of its relationship to his federal
employment on September 17, 2019. He was last exposed to the conditions alleged to have caused
his condition on September 20, 2019.
Appellant submitted additional statements dated September 17 and 19, 2019 wherein he
described his federal employment duties. In his September 19, 2019 statement, he also indicated
that he had sustained a prior back injury on July 26, 2018 while moving/holding a large parcel.
Appellant noted that OWCP had assigned that claim OWCP File No. xxxxxx536 and that the prior
claim was denied.
In a September 25, 2019 report, Dr. Kourosh K. Shamlou, a Board-certified orthopedic
surgeon, reported that appellant had previously injured his back in July of the previous year and
that his pain increased while working on September 17, 2019 when he performed activities
requiring bending and twisting to move objects. He provided lumbar spine examination findings,
noting pain with motion and moderate restrictions with flexion, extension and lateral bending.
Dr. Shamlou noted that appellant’s x-rays showed mild spondylosis with no spondylolisthesis and
he ordered a magnetic resonance imaging (MRI) scan. He provided an assessment of lumbar
spondylosis with radiculopathy.
In an October 2, 2019 development letter, OWCP informed appellant that additional
evidence was required to establish his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and attached a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the requested evidence.
OWCP subsequently received appellant’s October 5, 2019 response to its questionnaire
and a November 15, 2019 statement.
In an October 16, 2019 report, Dr. Shamlou related appellant’s examination findings and
provided a diagnosis of lumbar spondylosis with radiculopathy. He indicated that appellant’s
October 10, 2019 lumbar MRI scan showed spondylosis at L4-5 with central protrusion, facet
arthropathy and foraminal narrowing.
Appellant’s October 10, 2019 MRI scan of the lumbar spine interpreted by Dr. Panayota
Roumanis, a Board-certified diagnostic radiologist, revealed posterior disc bulges and protrusions

2

at L3-L4, L4-L5, and L5-S1 resulting in mild bilateral neural foraminal stenosis at those levels
with grade 1 retrolisthesis of L4 on L5.
By decision dated December 27, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish causal relationship between his diagnosed back
conditions and his accepted employment duties.
On February 10, 2020 appellant requested reconsideration.
In a January 3, 2020 report, Dr. Judith Kraft, a Board-certified family practitioner, reported
that appellant had a prior back injury in July 2018 for which he had been treated until
September 2018. She noted that he had sustained a right rib fracture in June 2019, following which
he had been placed on work restrictions. Dr. Kraft noted that appellant cased his own route and
from May to August 2019 he was casing multiple routes, which required frequent bending,
twisting, and remaining partially bent forward over hampers. Since August 2019, appellant had
been working two to four hours a day. Dr. Kraft also discussed appellant’s regular duties as a
letter carrier prior to receiving work restrictions. She noted the history of his current injury and
her review of medical records and diagnostic studies, which included an October 10, 2019 MRI
scan of the lumbar spine, a July 28, 2018 MRI scan of the lumbar spine, an August 18, 2018
computerized tomography (CT) scan, a November 22, 2019 lower extremity electromyography
(EMG) and nerve conduction velocity (NCV) study, and December 9, 2019 electrodiagnostic
studies of the upper and lower extremities. Dr. Kraft diagnosed cumulative trauma with
aggravation of lumbar discogenic disease, cumulative trauma aggravation of right radiculopathy,
and cumulative trauma with lumbar spondylosis/spondylolisthesis. She explained that the
repetitive biomechanical impact loading and of being in an almost consistently weight-bearing
position throughout the workday further weakened the intervertebral discs outer layer and
extended the disc beyond its previous position and pushed it further into areas of its surrounding
environment such as the neural foramina and produced pain for appellant. Dr. Kraft noted that,
while degenerative changes are a normal event from aging, the aging of appellant’s lumbar axial
skeletal system spondylosis had been aggravated by the repetitive physical activities he performed
for the employing establishment. She indicated that appellant’s lumbar spine was transformed by
these degenerative changes and became progressively less suited to absorb the forces of his work
activities without creating symptoms. Dr. Kraft indicated that the repetitive nature of appellant’s
impact-loading work duties caused the progression of his lumbar spine degenerative disc disease,
noting that appellant denied any other history of injury that may have contributed to his condition.
She concluded that his employment factors contributed to the acceleration of his condition of
degenerative disc disease and radiculopathy along with the development of spondylolisthesis in a

3

cumulative fashion, as previously described. Dr. Kraft released appellant to modified duties on
January 3, 2020 with additional limitations and restrictions.
November 22, 2019 electrodiagnostic studies of appellant’s lower extremities, interpreted
by Dr. Omar Mora Colon, a physiatrist, revealed no electrodiagnostic evidence of nerve
entrapment and/or radiculopathy of the lower extremities.
In an April 10, 2020 form report, Dr. Kraft listed appellant’s work restrictions.
By decision dated May 8, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed 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 incident.7
3

See C.D., Docket No. 20-0762 (issued January 13, 2021).

4

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

K.F., Docket No. 20-0100 (issued June 2, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019). See also
Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB
345 (1989).
6

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

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In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.8
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision.
In support of his claim, appellant provided a January 3, 2020 report from Dr. Kraft, who
diagnosed cumulative trauma with aggravation of lumbar discogenic disease, cumulative trauma
aggravation of right radiculopathy, and cumulative trauma with lumbar spondylosis/
spondylolisthesis. Dr. Kraft opined that the repetitive nature of appellant’s impact loading work
duties caused the progression of his lumbar spine degenerative disc disease. She specifically
explained that the repetitive biomechanical impact loading and of being in an almost consistently
weight-bearing position throughout the workday further weakened appellant’s intervertebral discs
outer layer and extended the disc beyond its previous position and pushed it further into areas of
its surrounding environment such as the neural foramina and produced pain for appellant. Dr.
Kraft also noted that, while degenerative changes were a normal event from aging, the aging of
appellant’s lumbar axial skeletal system spondylosis had been aggravated by the repetitive
physical activities he performed for the employing establishment. She indicated that appellant’s
lumbar spine was transformed by these degenerative changes and became progressively less suited
to absorb the forces of his work activities.
The Board finds that, although Dr. Kraft’s report is insufficient to fully discharge
appellant’s burden of proof that his diagnosed conditions were accelerated, caused, or aggravated
by the accepted factors of his federal employment, her report constitutes substantial,
uncontradicted evidence in support of his claim, and provide sufficient rationale to require further
development of the case record by OWCP. Dr. Kraft provided a detailed history of injury,
referenced physical examination findings, expressed her opinion on causal relationship, and
provided an explanation as to the mechanism by which appellant’s employment factors caused or
aggravated his diagnosed conditions.9
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is done.10
The case will therefore be remanded to OWCP for further development of the medical
evidence on the issue of causal relationship, including the preparation of a statement of accepted
facts which shall set forth all of appellant’s accepted employment duties and then make a referral
to a medical specialist in the appropriate field of medicine for consideration of the entire medical
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
9

R.R., Docket No. 18-0914 (issued February 24, 2020); J.D., Docket No. 18-0270 (issued January 6, 2020).

10

J.J., Docket No. 19-0789 (issued November 22, 2019); M.B., Docket No. 17-1999 (issued November 13, 2018).

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record. The chosen physician shall provide a rationalized opinion as to whether the diagnosed
conditions are causally related to the accepted factors of appellant’s federal employment. If the
physician opines that the diagnosed conditions are not causally related, he or she must explain with
rationale how or why the opinion differs from that of Dr. Kraft. After this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 11, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUNTER HOLMES McGUIRE MEDICAL
CENTER, Richmond, VA, Employer
__________________________________________

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

Docket No. 13-1955
Issued: January 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2013 appellant timely appealed the July 11, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant received an overpayment of $5,070.48 for the period
January 13 to April 6, 2013.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its July 11, 2013 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2012).

FACTUAL HISTORY
Appellant, a 57-year-old health technician, injured her right shoulder in the performance
of duty on July 26, 2005.3 OWCP accepted her claim for right rotator cuff tear. Between 2006
and 2008, appellant underwent multiple surgeries involving both shoulders. She had been
working part-time limited duty, but stopped work entirely on December 28, 2010. In
October 2011, OWCP expanded appellant’s claim to include left arm chronic pain syndrome as a
consequential injury. It also placed her on the periodic compensation rolls effective
September 25, 2011.
In October 2011, the Office of Personnel Management (OPM) approved appellant’s
application for disability retirement under the Federal Employees’ Retirement System.
Appellant informed OWCP of OPM’s recent determination but elected to continue receiving
FECA wage-loss compensation.
In January 2013, appellant opted to receive OPM benefits in lieu of continued FECA
wage-loss compensation. The effective date of her election was January 13, 2013. Appellant
elected OPM retirement benefits in anticipation of receiving a schedule award. OWCP had
previously advised her that FECA wage-loss compensation and schedule award benefits could
not be paid concurrently, but appellant would not be precluded from receiving a schedule award
concurrent with OPM retirement benefits.
On February 6, 2013 OWCP advised OPM that appellant elected to receive retirement
benefits effective January 13, 2013. It also requested that OPM provide information regarding
the start date of annuity payments.
On February 9, 2013 OWCP disbursed a payment of $1,824.28 for the 28-day period of
January 13 to February 9, 2013.4 In advance of this disbursement, it alerted appellant of the
possibility of an overpayment due to the timing of her OPM election.
During a February 12, 2013 telephone conversation, OWCP advised appellant that she
would be incurring an overpayment for “dual benefits.” The notes (CA-110) further reflect that
appellant “alleged poverty due to lapse in payment from OPM.” OWCP agreed to keep appellant
on the periodic rolls until her OPM payments commenced. Appellant reportedly agreed to
immediately notify OWCP once her OPM payment commenced. She also agreed to return any
overpayments. Additionally, appellant inquired about filing a schedule award (Form CA-7) for
her left side.5
An OWCP payment report dated February 15, 2013 indicated that appellant was initially
removed from the periodic rolls because of OPM selection, but she was being added back
because OPM payment had not yet started.
3

Appellant was pushing a 380-pound patient on a stretcher at the time of injury.

4

The comment section of OWCP’s February 9, 2013 payment report noted “elected OPM benefits.”

5

Appellant formally filed for a schedule award on February 25, 2013.

2

Over the next two months, OWCP continued to pay appellant wage-loss compensation
for temporary total disability. The two additional periodic rolls payments covered the period of
February 10 to April 6, 2013, and her compensation for this period was $3,246.20. During this
timeframe, OWCP referred appellant to vocational rehabilitation and continued to develop her
schedule award claim.
On April 24, 2013 OWCP terminated appellant’s wage-loss compensation retroactive to
January 13, 2013. That same day, OWCP sent another letter to OPM advising that, effective
January 13, 2013, appellant had elected to receive OPM benefits in lieu of FECA compensation
benefits. OWCP also requested reimbursement from appellant of $5,070.48, which represented
the amount of FECA benefits paid during the period January 13 to April 6, 2013.
In a May 1, 2013 telephone conversation, appellant advised OWCP that she had not yet
received any OPM benefits. OWCP advised that it had notified OPM of her election of benefits.
On May 3, 2013 OWCP granted appellant a schedule award for 17 percent right upper
extremity impairment.6 The award covered a period of 53.04 weeks beginning April 7, 2013.
On May 24, 2013 OWCP issued a preliminary finding of overpayment in the amount of
$5,070.48. It explained that the overpayment occurred because appellant received compensation
after electing OPM benefits effective January 13, 2013. Additionally, OWCP indicated that
appellant appeared at fault in the creation of the overpayment because she accepted payment that
she either knew or reasonably should have known to be incorrect.
In June 2013, appellant requested a lump-sum payout on her recent schedule award.
Although she had not responded to OWCP’s May 24, 2013 preliminary overpayment
determination, appellant made several follow-up inquiries with OWCP regarding her request for
a lump-sum payment. On June 25, 2013 OWCP explained the terms and amount of the lumpsum settlement and appellant signed a written agreement on July 1, 2013.7
On July 11, 2013 OWCP issued a formal decision finding that appellant received an
overpayment of $5,070.48 for the period January 13 through April 6, 2013. It noted that the
May 24, 2013 preliminary determination was uncontested. OWCP also found appellant at fault
in the creation of the overpayment. Lastly, it informed her that the entire overpayment would be
withheld from her lump-sum schedule award payment.
In a letter dated July 16, 2013, OWCP advised appellant that it anticipated issuing her a
check on July 19, 2013 in the amount of $13,316.23. The disbursement represented the
previously agreed upon lump-sum ($18,386.71) schedule award minus the $5,070.48
overpayment. OWCP explained that the overpayment was based on appellant “continuing to
receive OWCP disability benefits ... after [she] began receiving OPM benefits on [January 13,

6

Appellant previously received a schedule award for eight percent impairment of her right upper extremity.

7

Appellant agreed to accept a sum of $18,386.71 for the remaining period of the schedule award; June 30, 2013
to April 13, 2014.

3

2013].” It disbursed the funds on July 19, 2013 in accordance with its July 16, 2013
representation.
Appellant challenged OWCP’s finding of overpayment. She indicated that the reason she
switched from FECA to OPM benefits was because she had been told she could not receive a
schedule award while she was on automatic pay roll. Appellant also noted that, while she elected
to receive OPM retirement benefits in January 2013, OPM did not send her first check until
July 1, 2013.8
LEGAL PRECEDENT
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement annuity.9 When a claimant is entitled to disability benefits under FECA and
annuity benefits from OPM under either the Civil Service Retirement System or the Federal
Employees’ Retirement System, the employee must make an election between FECA benefits
and OPM benefits.10 The employee has the right to elect the monetary benefit that is most
advantageous.11 The election, once made, is revocable.12 While concurrent wage-loss
compensation and OPM benefits constitute a prohibited dual benefit, a schedule award for
permanent impairment under 5 U.S.C. § 8107 is payable concurrent with an OPM annuity.13
ANALYSIS
Effective January 13, 2012, appellant elected to receive OPM disability retirement
benefits in lieu of FECA wage-loss compensation which she had been receiving. However,
OWCP continued to pay wage-loss compensation for the period January 13 to April 6, 2013.
Appellant received $5,070.48 in compensation benefits for the designated period, which OWCP
declared an overpayment. OWCP also found her at fault in the creation of the purported
overpayment.
If established, an overpayment would arise due to receipt of a prohibited dual benefit, not
merely because appellant continued to receive FECA wage-loss compensation after the effective
date of her OPM election. The current record is devoid of any evidence that appellant received
OPM retirement benefits covering the period January 13 to April 6, 2013.

8

Appellant provided OPM payment records with her appeal; however, this evidence was not part of the record
when OWCP issued its July 11, 2013 overpayment decision. Consequently, the Board cannot consider appellant’s
newly submitted evidence. See supra note 2.
9

5 U.S.C. § 8116(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4a (January 1997).

11

Id.

12

20 C.F.R. § 10.421(a).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.6b (February 1995).

4

Since electing OPM benefits in January 2013, appellant repeatedly advised OWCP that
she had not received payment from OPM. In fact, during a February 12, 2013 telephone
conversation OWCP agreed to keep her on the periodic rolls until her OPM payments
commenced. As recently as May 1, 2013, appellant again advised OWCP that she had not yet
received any OPM benefits.
OWCP wrote to OPM on February 6 and April 24, 2013 advising of appellant’s election
of retirement benefits effective January 13, 2013. In the first letter, it requested information
regarding the start date of annuity payments. The April 24, 2013 correspondence advised OPM
that appellant received $5,070.48 in FECA benefits for the period January 13 to April 6, 2013,
and OWCP requested reimbursement from OPM. There is no record of OPM having responded
to OWCP’s February 6 and April 24, 2013 correspondence. Appellant indicated that OPM sent
her first check on July 1, 2013.14
The Board finds that OWCP has not established that appellant was overpaid $5,070.48
for the period January 13 through April 6, 2013. The current record does not include any
documentation of her having received benefits from both OPM and OWCP for the period
January 13 to April 6, 2013. The mere fact that appellant received FECA benefits after the
effective date of her OPM election will not suffice.15 Thus, there is no evidence that she
received a prohibited dual benefit.
CONCLUSION
OWCP failed to establish that appellant was overpaid $5,070.48 for the period January 13
through April 6, 2013.

14

There is no indication that this payment was retroactive to January 13, 2013.

15

An election of benefits is revocable, and OWCP verbally agreed to continue payments until appellant received
her OPM benefits.

5

ORDER
IT IS HEREBY ORDERED THAT the July 11, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 29, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., personal representative of the Estate of C.J.,
Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stratford, NJ, Employer
__________________________________________

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

Docket No. 08-371
Issued: September 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2007 appellant filed a timely appeal from the November 21, 2006
merit decision of the Office of Workers’ Compensation Programs, which awarded schedule
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case. The Board also has jurisdiction to review the Office hearing
representative’s June 19, 2007 decision affirming the schedule award.
ISSUE
The issue is whether the employee had more than a 24 percent permanent impairment of
his left upper extremity or more than a 21 percent permanent impairment of his right.
FACTUAL HISTORY
On March 21, 2000 the employee, then a 53-year-old custodian, filed a claim for
compensation alleging that his bilateral carpal tunnel syndrome and left elbow nerve damage was
a result of his federal employment. The Office accepted his claim for bilateral ulnar neuropathy

and carpal tunnel syndrome.1 The employee underwent a right carpal tunnel release on
February 6, 2001 and a left carpal tunnel release on October 9, 2001. On May 13, 2003 he
underwent an ulnar nerve transposition in the left elbow.
The employee requested a schedule award. On April 5, 2006 the Office issued a schedule
award for a six percent permanent impairment of the employee’s left upper extremity and a four
percent permanent impairment of his right based on ulnar sensory deficits at the elbows. On
July 3, 2006 an Office hearing representative found that further medical development was
warranted because no physician had properly applied the American Medical Association, Guides
to the Evaluation of Permanent Impairment (5th ed. 2001). For example, Dr. Nicholas Diamond,
an osteopath provided by the employee’s attorney, improperly included impairment values for
decreased motion and decreased pinch strength. The hearing representative remanded the case
for a second opinion evaluation of impairment “under the standards and procedures in the fifth
edition of the A.M.A., Guides.”
The Office referred the employee to Dr. William Dinenberg, an orthopedic surgeon, for a
proper evaluation of impairment. On September 27, 2006 Dr. Dinenberg examined the employee
and reported his findings on physical examination. He found a six percent impairment of the left
upper extremity due to ulnar nerve sensory deficit or pain above the midforearm. Dr. Dinenberg
also found an eight percent impairment of each upper extremity due to loss of wrist motion.
On October 23, 2006 an Office medical adviser reviewed Dr. Dinenberg’s findings. For
the left upper extremity, he concurred with the six percent rating for decreased sensation of the
ulnar nerve. In addition, the Office medical adviser reported a 12 percent rating for decreased
grip strength, a 5 percent rating for loss of flexion and extension in the wrist and a 4 percent
rating for loss of radial and ulnar deviation in the wrist. From this, he calculated a 24 percent
impairment of the left upper extremity.
For the right upper extremity, the Office medical adviser reported identical sensory and
strength losses at the elbow. He also reported a five percent rating for loss of flexion and
extension in the wrist. The Office medical adviser calculated a 21 percent impairment of the
right upper extremity.
In a decision dated November 21, 2006, the Office issued a schedule award for an
additional 18 percent impairment of the left upper extremity (24 percent total) and an additional
17 percent impairment of the right (21 percent total).
The employee passed away on December 10, 2006.
In a decision dated June 19, 2007, an Office hearing representative affirmed the
November 21, 2006 schedule award.

1

An electromyogram and nerve conduction study on March 9, 2000 showed bilateral carpal tunnel syndrome and
left ulnar neuropathy at the elbow “and probable right ulnar neuropathy, though not definitively localized to the
elbow.”

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.3
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.4
ANALYSIS
The Office accepted the employee’s claim for bilateral ulnar neuropathy and carpal
tunnel syndrome, both of which are entrapment or compression neuropathies. The A.M.A.,
Guides states that in entrapment or compression neuropathies, sensory and motor deficits are
evaluated according to the chapter on peripheral nerve disorders. This means following the
grading scheme and procedure for rating sensory and motor deficits under Table 16-10, page
482, and Table 16-11, page 484, respectively. The A.M.A., Guides makes clear: “In
compression neuropathies, additional impairment values are not given for decreased grip
strength. In the absence of CRPS [complex regional pain syndrome], additional impairment
values are not given for decreased motion.”5 So in the absence of CRPS, as in this case, no
claimant is entitled to a schedule award for entrapment or compression neuropathies that
includes a rating for decreased motion.
The hearing representative remanded this case for further development on July 3, 2006.
She found that Dr. Diamond, the osteopath, had improperly included impairment values for
decreased motion. Notwithstanding the hearing representative’s finding, and notwithstanding the
language of the A.M.A., Guides, Dr. Dinenberg, the Office referral orthopedic surgeon, also
included impairment values for decreased motion. Further, the Office medical adviser who
reviewed Dr. Dinenberg’s findings recommended that the employee receive an award for
decreased motion. His rationale -- that both Dr. Diamond and Dr. Dinenberg had included
ratings for decreased motion -- conflicts with the proper application of the A.M.A., Guides.
The Office medical adviser also gave an impairment rating for 4/5 grip strength
bilaterally. This is similarly prohibited by the A.M.A., Guides. The Office medical adviser gave
the employee a six percent rating for sensory deficit of the ulnar nerve at the right elbow, which
Dr. Dinenberg did not evaluate.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

A.M.A., Guides 494.

3

When evaluating impairment due to carpal tunnel syndrome, the A.M.A., Guides states
that the diagnosis should be documented by electromyography as well as sensory and motor
nerve conduction studies.6 Dr. Dinenberg did not obtain an electromyogram or nerve conduction
study, and he did not reference any recent testing. Giving the employee the benefit of a doubt
that such testing would have confirmed the presence of a residual carpal tunnel syndrome,7 the
A.M.A., Guides still requires the physician to follow the grading scheme and procedure for
evaluating sensory and motor deficits, which Dr. Dinenberg did not do. Dr. Dinenberg limited
his evaluation of carpal tunnel syndrome to range of motion, which, again, the A.M.A., Guides
prohibits.
This case is not in posture for decision. The Office issued a schedule award that is not in
compliance with the A.M.A., Guides. The Board will therefore set aside the Office’s
November 21, 2006 and June 19, 2007 decisions. The Office should refer the case to
Dr. Dinenberg for clarification as to the extent of permanent impairment. In cases involving
posthumous schedule awards, where a physician is able to render an opinion as to the permanent
loss of use of the injured member with reasonable medical certainty, such evidence should be
given credence. Upon receiving his supplemental report, the Office should refer the case to a
different Office medical adviser to determine whether the employee’s bilateral carpal tunnel
syndrome falls within Scenario 1, page 495, of the A.M.A., Guides, and if so, whether a proper
rating may be given for peripheral nerve disorder under Table 16-10 or Table 16-11. The Office
medical adviser should provide rationale for selecting the reports or findings or complaints that
best represent the employee’s clinical picture in 2006.8 The Office medical adviser shall also
review the medical evidence to determine whether the employee should receive a rating for any
sensory or motor deficit in his right elbow and whether Dr. Dinenberg’s impairment rating for
ulnar sensory deficit at the left elbow is proper under Table 16-10. The Office shall then issue an
appropriate final decision on the employee’s claim for a schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.

6

Id. at 493.

7

See id. at 495 (Scenario 1).

8

See Irving Brichke, 32 ECAB 1044 (1981) (Office medical adviser provided no rationale for selecting one
evaluation of the four that were conducted within a span of five months); John C. Messick, 25 ECAB 333 (1974) (when
several audiograms are in the case record and all are made within approximately two years of one another and are
submitted by more than one physician, the Office should give an explanation for selecting one audiogram over the
others).

4

ORDER
IT IS HEREBY ORDERED THAT the June 19, 2007 and November 21, 2006
decisions of the Office of Workers’ Compensation Programs are set aside. The case is remanded
for further action consistent with this opinion.
Issued: September 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, TX, Employer
__________________________________________

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

Docket No. 08-1008
Issued: September 11, 2008

Case Submitted on the Record

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

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from a December 31, 2007 merit
decision of the Office of Workers’ Compensation Programs that denied his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the appeal.
ISSUE
The issue is whether appellant has a ratable impairment causally related to his accepted
binaural (both ears) hearing loss.

FACTUAL HISTORY
The Office accepted appellant’s January 19, 1997 occupational disease claim for an
employment-related binaural hearing loss.1 However, it denied appellant’s claim for a schedule
award as the extent of the loss was not ratable. On October 1, 2004 appellant filed another
occupational disease claim, attributing his hearing loss and tinnitus to his federal employment.
The record reflects that he worked at the employing establishment with noise exposure from
1972 to 1995, when he was reassigned to a nonhazardous noise area. Appellant stopped working
in February 1998. On July 11, 2005 he indicated that he had not been exposed to noise since he
stopped work. On August 22, 2005 the Office prepared a statement of accepted facts, noting that
appellant’s hazardous noise exposure ceased in 1995.
On August 26, 2005 appellant was referred for examination to Dr. George Fisher, a
Board-certified otolaryngologist. In a September 12, 2005 report, Dr. Fisher diagnosed a
bilateral sensorineural high frequency hearing loss with tinnitus. He advised that appellant’s
hearing loss was caused by exposure to noise in his federal employment, stating that appellant
had a lengthy exposure to high level noise and that there was no other etiology to explain the
loss. He set forth findings on audiological testing, concluding that appellant had a 5.94 percent
binaural hearing loss. On October 19, 2005 an Office medical adviser reviewed the medical
evidence and found that appellant had a nine percent binaural hearing impairment caused by his
employment.2
On January 4, 2006 appellant filed a claim for a schedule award. The Office prepared a
statement of accepted facts and referred the record back to the Office medical adviser for review.
In a February 28, 2006 report, the medical adviser modified his prior opinion noting that the
statement of accepted facts listed February 1, 1998 as the date appellant ceased federal
employment and his assignment to a nonhazardous noise area in 1995. He stated that any
hearing loss after February 1, 1998 could not be from exposure to noise on the federal job.
Therefore, the medical adviser concluded that appellant’s hearing loss did not occur while in
federal employment.
In a March 30, 2006 decision, the Office denied appellant’s claim for a schedule award,
finding that his ratable hearing loss after 1998 was not causally related to his federal
employment.
Appellant requested a hearing on April 29, 2006, which the Office’s Branch of Hearings
and Review denied as untimely. Following an appeal to the Board, on July 24, 2007 the case
was remanded to the Office for a hearing and merit decision.3 A telephone hearing was held on
October 11, 2007 at which time appellant noted that in 1995 he was reassigned to a facilities
1

The Office referred appellant for examination by Dr. Paul Loeffler, a Board-certified otolaryngologist. On
March 25, 1997 Dr. Loeffler diagnosed a mild high frequency binaural sensorineural hearing loss with tinnitus
which was causally related to appellant’s occupational exposure to noise. On October 30, 1997 the Office accepted
appellant’s claim but noted that the extent of hearing loss was not ratable for schedule award purposes.
2

In an October 27, 2005 decision, the Office again accepted appellant’s claim for noise-induced hearing loss.

3

Docket No. 07-676 (issued July 24, 2007).

2

engineer position, which involved some exposure to noise from chemical explosions and heavy
equipment.
In a December 31, 2007 decision, an Office hearing representative affirmed the denial of
appellant’s schedule award claim. She found that any hearing loss occurring after February 1,
1998 was not employment related.
LEGAL PRECEDENT
The Board has long recognized that if a claimant’s employment-related hearing loss
worsens in the future, he may apply for an additional schedule award for any increased
permanent impairment.4 The Board has also recognized that a claimant may be entitled to a
schedule award for increased hearing loss, even after exposure to hazardous noise has ceased, if
causal relationship is supported by the medical evidence of record.5
In Kenneth W. Morgan,6 the Board noted that, in general, a noise-induced sensorineural
hearing loss does not progress after exposure to hazardous occupational noise ceases. However,
the Board did not enunciate this principle as a general rule but based the particular decision on
the opinions of the medical specialists of record. In Adelbert E. Buzzell,7 the Board cautioned
against an Office medical adviser providing a blanket unrationalized statement that hearing loss
does not progress following the cessation of hazardous noise exposure.8
ANALYSIS
The Office has accepted that appellant sustained a binaural sensorineural hearing loss
related to his history of hazardous noise exposure at the employing establishment. In 1997, it
denied his claim for a schedule award on the basis that the extent of his hearing loss was
nonratable. Appellant subsequently submitted a claim for an increased hearing loss and he was
referred to Dr. Fisher for evaluation. Dr. Fisher advised that audiometric testing revealed a
ratable binaural hearing loss. He reviewed appellant’s employment history, noting that
workplace noise exposure was long-standing and there was no other etiology for appellant’s loss.
This reflected a worsening of appellant’s hearing loss since his 1997 evaluation by Dr. Loeffler.
On October 19, 2005 the Office medical adviser addressed the medical evidence, noting
that the report of Dr. Fisher revealed a ratable hearing loss. In addressing causal relation, the
medical adviser stated: “Noise exposure on the job is deemed sufficient to implicate it as a
4

See Paul R. Reedy, 45 ECAB 488 (1994).

5

See Adelbert E. Buzzell, 34 ECAB 96 (1982).

6

28 ECAB 569 (1977).

7

Supra note 5. See also Armando Bello, 34 ECAB 1739 (1983) (the Board does not take positions on medical
questions of general application, but relies on the medical evidence in each case).
8

The Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(3) notes that if
the progression of a noise-induced hearing loss is to be denied, the medical adviser must provide a well-rationalized
opinion.

3

contributing factor to the claimant’s hearing loss.” However, the medical adviser subsequently
amended his opinion on February 28, 2006 when he stated: “In my opinion, any hearing loss
after February 1, 1998 could not be from exposure to noise on the federal job.” Therefore, he
concluded that appellant’s hearing loss was not due to his federal employment. The Board finds
that the medical adviser’s opinion on causal relationship and the progression of appellant’s
hearing loss is not well rationalized. Rather, he provided a mere blanket statement finding that
the progression of appellant’s hearing loss was not employment related. The medical adviser did
not address the report of Dr. Fisher, who provided an opinion supporting the causal relationship
of appellant’s hearing loss to his history of hazardous noise exposure in his federal employment.
Moreover, the medical adviser did not provide any explanation as to why such exposure ceased
to be a contributing factor, as he had originally noted in 2005.
The Board finds that the case is not in posture for decision. On remand, the Office
should obtain a rationalized medical opinion on the issue of causal relationship and issue a
de novo decision on appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that appellant’s claim for a schedule award requires further development
of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the December 31, 2007 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further development
consistent with this decision.
Issued: September 11, 2008
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

4