United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Durham, NC, Employer
__________________________________________

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

Docket No. 22-0103
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On October 29, 2021 appellant, through counsel, filed a timely appeal from a
September 21, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty as
alleged.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 18, 2020 appellant, then a 38-year-old food service worker, filed an
occupational disease claim (Form CA-2) alleging that he experienced difficulties with his hand
and wrist due to factors of his federal employment including repeatedly wiping down food carts.
He attributed his condition to “systemic infection, repeated stress or strain or conditions of the
work environment.” Appellant noted that he first became aware of his condition and its
relationship to his federal employment on January 20, 2020.3
In a development letter dated December 23, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed and
provided a questionnaire for his completion. By separate development letter of even date, OWCP
also requested additional information from the employing establishment, including a description
of the repetitive tasks that appellant performed as part of his work duties. It afforded both parties
30 days to respond.
In an undated response, appellant related that his date of injury was September 25, 2019,
even though he was not diagnosed until January 20, 2020. He advised that on September 25, 2019
he had sustained pain and numbness in his right hand that was subsequently diagn osed as carpal
tunnel syndrome. Appellant advised that he experienced the symptoms of carpal tunnel syndrome
when wiping down food carts and noted that he had worked 20 years for the employing
establishment.
By decision dated March 12, 2021, OWCP denied appellant’s occupational disease claim.
It found that he had not submitted sufficient evidence to establish that the work factors occurred
as alleged and further had not submitted any medical evidence containing a diagnosis in connection
with the claimed work events.
On March 22, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Thereafter, OWCP received a March 13, 2020 report from Dr. Timothy Andrews Ashley,
Board-certified in internal medicine, who evaluated appellant for pain and weakness of the right
hand and noted that an orthopedist had diagnosed carpal tunnel syndrome by clinical examination
and electromyogram (EMG). He related, “Carpal tunnel syndrome is frequently a result of
repetitive gripping or vibratory movements, and in this case is apparently related to his work. The
injury [on] September 25, 2019 appears to have triggered this pain episode.”
An EMG and nerve conduction velocity (NCV) study performed on January 8, 2020 for
Dr. Emeka Nwoko Okechukwu, a Board-certified orthopedic surgeon, showed mild-to-moderate
right carpal tunnel syndrome.
A telephonic hearing was held on July 14, 2021. Appellant’s representative advised that
he had a prior claim accepted for a right-hand contusion and when his condition failed to improve
3

OWCP assigned the present claim OWCP File No. xxxxxx951. Appellant has a prior claim under OWCP File
No. xxxxxx590, which OWCP accepted for a September 25, 2019 contusion to his right hand. The employing
establishment removed appellant from employment effective November 13, 2019.

2

he had an EMG, which demonstrated carpal tunnel syndrome. Appellant explained that his work
duties included daily cleaning of tool carts inside and out. He also performed general cleaning
duties, including wiping off sinks and removing food from the trays on a conveyor belt. Appellant
additionally had performed meal preparation prior to his hand contusion. He returned to work on
December 5, 2019 after his hand contusion, but was told that he had been terminated from
employment due to misconduct for failing to follow leave procedures. OWCP’s hearing
representative requested that appellant provide a written statement in response to the development
letter responding to the specific questions and providing a description of his work duties. She
further requested supporting medical evidence.
By decision dated September 21, 2021, OWCP’s hearing representative affirmed the
March 12, 2021 decision. She found that OWCP should double the current claim with other claims
involving appellant’s right hand.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including 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
period of FECA, 5 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 6 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 diseas e.7
In an occupational disease claim, appellant’s burden of proof requires submission of 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.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

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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. 10
ANALYSIS
The Board finds that appellant has established that the claimed employment factors
occurred as alleged..
Appellant described the work factors to which he attributed his condition during the
hearing. He related that he cleaned tool carts, wiped off sinks, and removed food from trays on a
conveyor belt. The employing establishment has not disputed that he performed the described
duties. An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong and persuasive evidence.11 The
Board thus finds that appellant has met his burden of proof to establish that he cleaned carts daily,
wiped off sinks, and removed food from trays on a conveyor belt as part of his employment duties.
As appellant has established the identified employment factors, OWCP must base its
decision on an analysis of the medical evidence. OWCP, in its September 21, 2021 decision,
reviewed the medical evidence of record and found that he had not submitted medical evidence
sufficient to show a medical condition causally related to the identified employment factors.
In a March 13, 2020 report, Dr. Ashley discussed appellant’s complaints of right hand pain
and weakness and indicated that an orthopedist had diagnosed carpal tunnel syndrome. He related
that “Carpal tunnel syndrome is frequently a result of repetitive gripping or vibratory movements,
and in this case is apparently related to his work. The injury [on] September 25, 2019 appears to
have triggered this pain episode.” His opinion that carpal tunnel syndrome is frequently a result
from repetitive work duties and that an injury on September 24, 2019 appeared to have caused
appellant’s pain is speculative in nature and, thus, of diminished probative value. 12 Consequently,
Dr. Ashley’s report is insufficient to meet his burden of proof. 13
Appellant further submitted the results of electrodiagnostic testing. The Board has held
that diagnostic reports, standing alone, lack probative value on the issue of causal relationship as
they do not provide an opinion as to whether the accepted employment incident caused a diagnosed
condition.14 This evidence, therefore, is also insufficient to establish appellant’s claim.
As the medical evidence of record is insufficient to establish a medical condition causally
related the accepted employment injury, the Board finds that appellant has not met his burden of
proof.

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

11

See R.W., Docket No. 19-0339 (issued July 12, 2019).

12

See C.A., Docket No. 21-0601 (issued November 15, 2021); L.F., Docket No. 20-1021 (issued July 30, 2021).

13

Id.

14

S.W., Docket No. 21-1105 (issued December 17, 2021); W.L., Docket No. 20-1589 (issued August 26, 2021).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has established that the claimed employment factors
occurred as alleged. The Board further finds, however, that appellant has not met his burden of
proof to establish a hand and/or wrist condition causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2021 decision of Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 21, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 11-119
Issued: September 7, 2011

Case Submitted on the Record

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

JURISDICTION
On October 18, 2010 appellant, through his attorney, filed a timely appeal of the
September 8, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for disability compensation.
Pursuant to the Federal Employees’
1
Compensation Act (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 has established that he was totally disabled on intermittent
dates from May 21 to July 20, 2009 due to his February 25, 2005 employment injuries.
FACTUAL HISTORY
OWCP accepted that on February 25, 2005 appellant, then a 48-year-old clerk, sustained
aggravation of displacement/herniation of the cervical and intervertebral disc at C6-7 without
1

5 U.S.C. § 8101 et seq.

myelopathy, adhesive capsulitis of the left shoulder, disc herniations with myelopathy at C3-4
and C5-7 and radiculopathy of the upper extremities as a result of casing large quantities of mail
and sweeping the floor at work.2 It authorized cervical fusion which was performed on
August 3, 2005.
Appellant was off work from April 15, 2005 to June 13, 2008. He returned to full-time
modified work as a mail processing clerk on June 14, 2008. On September 12, 2008 the
employing establishment advised appellant that he was being involuntarily reassigned to another
craft position and duty station due to the elimination of his former position. On July 21, 2009 it
offered him a modified distribution/window clerk position which was located at the Martins
Ferry Post Office in Martins Ferry, Ohio. Appellant contended that the offered position was not
within his restrictions and commuting area.
On July 29, 2009 appellant filed claims for compensation (Form CA-7) for intermittent
dates from May 6 to July 20, 2009. In a Form CA-7a and time analysis sheets dated August 4,
2009, he claimed time loss from work on May 21 through 24 and July 2, 4, 6, 16, 17, 19 and
20, 2009.
In a June 19, 2009 medical report, Dr. Parshotam C. Gupta, a Board-certified
anesthesiologist, noted that appellant had received an epidural block which improved his cervical
and lumbar pain completely. He complained about numbness in the fourth and fifth fingers on
the right side and was off work from June 4 to 7, 2009. Appellant had numbness in his thumb,
first finger and second finger on the left side since August 2000 following surgery. He missed
work from April 22 to 25, 2009 and in May 2009. Dr. Gupta listed his findings on physical
examination and diagnosed herniated nucleus pulposus at L4-5 and L5-S1, improved cervical
herniated disc with failed back syndrome and facet joint arthropathy at L4-5 and L5-S1 on the
left side. In a July 6, 2009 report, he noted appellant’s complaint of lower back pain which
radiated down to his left leg and ankle. Dr. Gupta further noted that, following cervical and
lumbar blocks which helped his cervical and not his lumbar pain, appellant did not work from
May 6 to 7 and 20 to 23 and on July 1, 2009. He reiterated his prior diagnoses.
By letter dated August 12, 2009, OWCP requested that appellant submit medical
evidence that contained a diagnosis, findings and an opinion describing his disability and
explaining how it was directly related to his lost time from work due to his accepted conditions.3
In an August 4, 2009 report, Dr. Gupta indicated that appellant received an epidural block
on July 14, 2009. He currently had no pain in his back or leg, but complained about cramping in
2

Prior to the instant claim, appellant filed a traumatic injury claim under File No. xxxxxx329 for a cervical injury
sustained on December 31, 1999. OWCP accepted his claim for cervical sprain, herniated disc at C5-6 and left
cervical radiculopathy with frozen shoulder and authorized a C5-6 cervical discectomy with fusion which was
performed on November 22, 2000. On January 15, 2009 it combined the case File Nos. xxxxxx329 and xxxxxx783
into a master claim assigned number xxxxxx329.
3

Appellant stopped work effective September 13, 2009. He contended that the offered position was located three
hours or 150 miles from his home. On December 10, 2009 OWCP accepted that appellant sustained a recurrence of
disability commencing September 13, 2009 as no formal loss of wage-earning capacity determination was in place
and suitable employment had been withdrawn by the employing establishment.

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his left thigh and leg. Dr. Gupta reported his findings on physical examination and advised that
appellant’s radiculopathy at L5-S1 on the left side had improved.
Records from Allen Community Hospital indicated that appellant was treated in the
emergency room on July 18 and August 8, 2009 for a migraine headache, neck pain and nausea.
He was diagnosed with an acute migraine and chronic neck pain. Following his July 18, 2009
treatment, appellant was released to return to work on July 20, 2009.
In a March 2, 2010 decision, OWCP found that the medical evidence was insufficient to
establish that appellant was totally disabled during the claimed period due to his accepted
conditions. However, it found that he was entitled to four hours of compensation for medical
treatment received on July 6, 2009.
By letter dated March 8, 2010, appellant, through counsel, requested a telephone hearing.
Records from Allen Community Hospital indicated that appellant was evaluated for his
back pain on July 5, 2009. He was diagnosed as having chronic back pain and released to return
to work on July 6, 2009.
In a September 8, 2010 decision, OWCP’s hearing representative affirmed the March 2,
2010 decision. She found that appellant failed to submit sufficient medical evidence to establish
total disability for the claimed periods.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.4 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.7 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.8
The Board, however, will not require the Office to pay compensation for disability in the absence
4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

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

8

Leslie C. Moore, 52 ECAB 132 (2000).

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of medical evidence directly addressing the specific dates of disability for which compensation is
claimed.9 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.10
ANALYSIS
OWCP accepted that appellant sustained aggravation of displacement/herniation of the
cervical and intervertebral disc at C6-7 without myelopathy, adhesive capsulitis of the left
shoulder, disc herniations with myelopathy at C3-4 and C5-7 and radiculopathy of the upper
extremities on February 25, 2005. Appellant claimed compensation for disability on intermittent
dates from May 21 to July 20, 2009. On March 2 and September 8, 2010 OWCP denied
compensation for the claimed period of disability. Appellant has the burden of establishing by
the weight of the substantial, reliable and probative evidence, a causal relationship between his
claimed disability and the accepted conditions.11 The Board finds that he did not submit
sufficient medical evidence to establish intermittent periods of employment-related disability
during the period claimed due to his accepted injuries.
Reports from appellant’s attending physician, Dr. Gupta, are insufficient to establish
appellant’s claim. He listed his findings on physical examination of the cervical and lumbar
spines and lower extremities. Dr. Gupta diagnosed herniated nucleus pulposus at L4-5 and L5S1, improved cervical herniated disc with failed back syndrome and facet joint arthropathy at
L4-5 and L5-S1 on the left side. He stated that appellant was off work in May 2009 following
his July 14, 2009 cervical and lumbar epidural blocks, but he did not address whether his
treatment and claimed disability commencing May 6, 2009 were causally related to the accepted
conditions. The Board has held that a physician’s opinion, which does not address causal
relationship, is of diminished probative value.12 Further, OWCP has not accepted appellant’s
claim for a lumbar condition and Dr. Gupta did not provide any rationale explaining how
appellant’s condition was caused or contributed to by the February 25, 2005 employment
injuries.13 The Board finds, therefore, that Dr. Gupta’s reports are insufficient to establish
appellant’s burden of proof.
The hospital records from Allen Community Hospital indicated that appellant was
evaluated on July 5 and 18, 2009 and diagnosed as having a migraine headache and chronic neck
and back pain. Appellant was released to return to work on July 6 and 20, 2009, respectively.
His claim has not been accepted for migraine headache. Further, pain is considered a symptom,
not a diagnosis and does not constitute a basis for payment of compensation.14 Moreover, the
9

Sandra D. Pruitt, 57 ECAB 126 (2005).

10

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, supra note 6.

11

Alfredo Rodriguez, 47 ECAB 437 (1996).

12

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
13

Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 ECAB 638 (2000).

14

See Robert Broome, 55 ECAB 339 (2004).

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hospital records did not address whether appellant was totally disabled during the claimed period
due to the accepted injuries.15 The Board finds, therefore, that this evidence is insufficient to
establish his claim.
Appellant has failed to submit rationalized medical evidence establishing that his
intermittent disability during the period May 21 to July 20, 2009 resulted from residuals of his
accepted employment-related cervical and upper extremity conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he was totally disabled for
intermittent periods from May 21 to July 20, 2009 due to her February 25, 2005 employment
injuries.
ORDER
IT IS HEREBY ORDERED THAT the September 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

A.D., supra note 12.

5


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

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

Docket No. 07-2113
Issued: February 5, 2008

Case Submitted on the Record

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

JURISDICTION
On August 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 20, 1997 merit decision denying his emotional condition claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), 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 an
emotional condition in the performance of duty.
FACTUAL HISTORY
On June 13, 2007 appellant, then a 51-year-old retired mail carrier, filed a claim alleging
that he sustained “illusion reality, hypertension [and] irregular heart beats” due to stress related
to an “administration mistake” made by the Department of Labor.1 He asserted that the
Department of Labor indicated in an October 27, 2005 letter that his case file was before the
1

In 1996 appellant retired from federal service on disability retirement.

Employees’ Compensation Appeals Board; however, a September 26, 2006 letter advised that
the Board did not have a pending appeal for him.2
Appellant submitted various letters, dated between October 2005 and June 2007,
produced by Office officials, congressional representatives, a union representative and an
employing establishment benefits specialist. The letters mostly addressed his inquiries regarding
the status of his compensation claim. In an October 27, 2005 letter, an Office official advised
appellant that his case was before the Board pending its review of the case. The official provided
him with an address to send inquiries regarding the status of the Board’s review. In a
September 26, 2006 letter, the Clerk of the Board stated that the Board did not presently have an
appeal pending for appellant’s case. He stated, “If you have received a recent adverse decision
from the [Office] and it is within a year, then you have a right to appeal that decision to the
Board.”
In a July 2, 2007 letter, appellant indicated that he suffered from mental illness,
hypertension and irregular heart beats. He submitted documents relating to his use of medication
for hypertension. In a June 22, 2007 report, an attending physician indicated that appellant was
being treated for several conditions, including cardiomyopathy, unstable angina, chest pain and
osteoarthritis.
In a July 20, 2007 decision, the Office denied appellant’s emotional claim on the grounds
that he did not establish any compensable employment factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4

2

In a March 23, 2007 letter to the Secretary of the Department of Labor, appellant stated that he would like to file
a “new claim for stress.” He asserted that an October 27, 2005 letter of the Department of Labor was revealed to be
an “administrative mistake” by another letter from late 2006. In a May 2, 2007 letter to the Secretary of the
Department of Labor, appellant stated that he was filing a claim for “injuries of stress and illusion reality” that he
“sustained from being the beneficiary of the practical joke, perpetrated by the Department of Labor administrative
personnel letter dated October 27, 2005.”
3

5 U.S.C. §§ 8101-8193.

4

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).

2

Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS
On June 13, 2007 appellant filed a claim alleging that he sustained mental and cardiac
problems because the Department of Labor mishandled his compensation claim by giving him
improper information about the claim beginning in 2006. He had been retired from the
employing establishment since 1996. In a July 20, 2007 decision, the Office denied appellant’s
emotional condition claim on the grounds that he did not establish any compensable employment
factors. The Board must, thus, initially review whether appellant has established an employment
factor under the terms of the Act.
Appellant related his claimed conditions to an “administration mistake” made by the
Department of Labor. He asserted that the Department of Labor indicated in an October 27,
2005 letter that his case file was before the Board but that a September 26, 2006 letter indicated
that the Board did not have a pending case for him. Regarding appellant’s allegations that the
Department of Labor mishandled his compensation claim, the Board has found that the
development of any condition related to such matters does not arise in the performance of duty.
The processing of compensation claims bears no relation to an employee’s regular or specially
assigned duties.9 Appellant has not advanced an argument which would show that the
Department of Labor’s handling of his compensation claim would relate to his regular or
specially assigned duties. Therefore, appellant has not established an employment factor
regarding the handling of his compensation claim.
5

Pamela R. Rice, 38 ECAB 838, 841 (1987).

6

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

Id.

9

See Sandra Davis, 50 ECAB 450, 461 (1999); George A. Ross, 43 ECAB 346, 353 (1991).

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For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.10
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 20, 1997 decision is affirmed.
Issued: February 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

4


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cedar Hill, TX, Employer
__________________________________________

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

Docket No. 08-84
Issued: April 23, 2008

Case Submitted on the Record

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

JURISDICTION
On October 9, 2007 appellant timely appealed the July 2, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied his traumatic injury claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant’s July 3, 2006 injuries were caused by his own willful
misconduct.
FACTUAL HISTORY
Appellant, a 32-year-old former rural carrier, was involved in a motor vehicle accident on
July 3, 2006. He stated that he was out delivering mail when a lady pulled out in the street.
Appellant “tried to avoid her and swerved and hit a street sign.” He described his injuries as a
sprained left ankle and “road rashes” on the right side of his body. The employing establishment
alleged that appellant’s injuries were due to his own willful misconduct. At the time of the
incident, appellant was operating a long-life vehicle (LLV), which featured a right-side driver’s
position. The employing establishment indicated that appellant was driving 45 miles per hour

with his seat belt unfastened and the driver-side door open. Operating the vehicle with the door
open and the seat belt unfastened was contrary to the driver orientation training appellant
received in October 2004. The employing establishment also noted that State law required the
use of safety belts.
The police report indicated that appellant was traveling south approaching a four-way
intersection when he noticed another motorist traveling east. The other motorist was at a stop
sign and appellant had the right-of-way. The reporting officer indicated that appellant said he
thought the car was rolling in front of him. According to the report, appellant began skidding 50
feet from the intersection and left the roadway, striking a sign post at the southeast corner of the
intersection. Upon impact, he was ejected 16 feet from the vehicle. The police report also noted
that appellant was not wearing a seat belt and was operating the vehicle with the right-side door
open. The investigating officer identified driver inattention as the sole contributing factor.1
Appellant was transported by ambulance to a nearby hospital.
Appellant’s diagnoses included left ankle sprain and multiple abrasions. There were also
reports of a possible fracture and ligament damage in the left ankle and foot. Several months
after the July 3, 2006 incident, appellant was diagnosed with post-traumatic stress disorder,
secondary to traumatic work-related injury.
In a decision dated September 14, 2006, the Office denied appellant’s claim. The Office
found that appellant had violated safety standards and rules, which constituted “negligence.”
Because of his negligence, appellant’s injury was not considered to be causally related to factors
of his employment.
On November 2, 2006 appellant requested reconsideration. The Office subsequently
reopened the claim for further development. The employing establishment provided additional
information regarding the safety training appellant received, including excerpts from the standard
operating procedures for motor vehicles.
By decision dated July 2, 2007, the Office denied appellant’s claim because his injury
occurred due to willful misconduct. The Office found that appellant had violated employee
safety rules as well as State law when he operated the LLV with his seat belt unfastened.
Additionally, the Office noted that appellant had been driving with the door open.
LEGAL PRECEDENT
Section 8102(a) of the Federal Employees’ Compensation Act 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 his duty, unless the injury or death is “caused by
willful misconduct of the employee.”2

1

The police report did not corroborate the employing establishment’s assertion that appellant was driving 45
miles per hour when the accident occurred.
2

5 U.S.C. § 8102(a)(1) (2000).

2

Willful misconduct is deliberate conduct involving premeditation, obstinacy or
intentional wrongdoing with the knowledge that it is likely to result in serious injury.3 Willful
misconduct is also characterized as conduct which is in wanton or reckless disregard of probable
injurious consequences.4 Because it is an affirmative defense, the party that raises the issue of
willful misconduct bears the burden of proof.5
ANALYSIS
When the July 3, 2006 motor vehicle accident occurred appellant was delivering mail on
the route he had recently been assigned. Although he was performing his assigned duties when
he was injured, the Office denied coverage under the Act because his July 3, 2006 injuries were
purportedly caused by his own willful misconduct.
At the time of the July 3, 2006 motor vehicle accident, the employing establishment had
standard operation procedures in effect that prohibited operating an LLV with an unfastened seat
belt. Appellant was similarly prohibited from entering an intersection with the driver-side LLV
door open. He received appropriate training and admittedly violated both safety requirements.
However, appellant’s failure to wear a seat belt and his operation of the LLV with the right-side
door open did not cause the July 3, 2006 motor vehicle accident. He lost control of the LLV
when he swerved to avoid a collision with another motorist. The investigating police officer
attributed the motor vehicle accident to driver inattention. No additional contributing factors
were noted.
There is no proof that the two safety infractions had any bearing on the evasive maneuver
appellant attempted at approximately 5:15 p.m. on July 3, 2006. Had appellant operated the
LLV in the prescribed manner, he quite possibly could have minimized the extent of his injuries.
But doing so would not have prevented a near-collision with another motorist. In order to deny
coverage, the Act requires that the employee’s willful misconduct must have “caused” the
injury.6 The defense of willful misconduct does not come into play unless there was a causal
connection between the violation and the injury.7 A cause and effect relationship has not been
established in the present case. Accordingly, the Board finds that appellant’s purported willful
misconduct did not directly cause the July 3, 2006 motor vehicle accident.
The Board further finds that appellant’s actions did not rise to the level of willful
misconduct. Operating the LLV without a seat belt and entering the intersection with the
vehicle’s right-side door open were lapses of judgment, not acts of wanton or reckless disregard
of probable injurious consequences.8 Appellant explained that his seat belt was off and the right3

James P. Schilling, 54 ECAB 641, 647 (2003); Karen Cepec, 52 ECAB 156, 159 (2000).

4

James P. Schilling, supra note 3.

5

Id.

6

5 U.S.C. § 8102(a)(1).

7

2 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 35.01, at 35-4 (2000).

8

Id. at § 34.02.

3

side door open because he was preparing for his next curbside delivery. He informed the Office
that he was about a block away from entering a residential area. There is no evidence of
premeditation, obstinacy or intentional wrongdoing. Also, there is no proof that appellant knew
his behavior was likely to result in serious injury. The record does not support a finding that
appellant’s July 3, 2006 injuries were caused by his own willful misconduct. Accordingly, his
claim is not precluded under 5 U.S.C. § 8102(a)(1). The case will be remanded to the Office for
further consideration of appellant’s July 14, 2006 traumatic injury claim.
CONCLUSION
The record does not establish that appellant’s July 3, 2006 injuries were caused by his
own willful misconduct.
ORDER
IT IS HEREBY ORDERED THAT that the July 2, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: April 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.A., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
UNDERSEAS WARFARE ENGINEERING
STATION, Keyport, WA, Employer
__________________________________________

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

Docket No. 08-542
Issued: September 19, 2008

Case Submitted on the Record

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

JURISDICTION
On December 8, 2007 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ merit decisions dated January 16 and October 4, 2007. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he had disability caused by residuals
of the accepted employment injury following the termination of compensation benefits on
January 3, 2003.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 44-year-old machinist, injured
his lower back on October 15, 1985 while pulling a propeller shaft onto a boat. He filed a claim
for benefits, which the Office accepted for low back strain. The Office commenced payment for
temporary total disability compensation. By decision dated January 3, 2003, it terminated

appellant’s compensation benefits, finding that he had no residuals from his October 11, 1985
employment injury. By decision dated January 14, 2004, an Office hearing representative
affirmed the Office’s January 3, 2003 termination decision; he found, however, that there was a
conflict in the medical evidence regarding whether L2-5 disc and facet joint changes seen on a
May 30, 2002 magnetic resonance imaging (MRI) scan were causally related to appellant’s 1985
employment injury. The Office referred appellant to Dr. Donald D. Hubbard, Board-certified in
orthopedic surgery, for a referee medical examination to resolve the conflict in the medical
evidence. Dr. Hubbard indicated that appellant’s condition was not connected to his 1985
employment injury and stated that his degenerative disease of the lumbosacral spine was both
behavior induced and related to age. By decision dated August 30, 2004, the Office affirmed the
Office’s January 3, 2003 termination decision, finding that Dr. Hubbard’s impartial opinion
represented the weight of the medical evidence and established that appellant had no residuals
from his October 15, 1985 employment injury. In an August 22, 2005 decision,1 the Board
affirmed the Office’s termination finding but found that Dr. Hubbard did not provide sufficient
rationale for his opinion that appellant’s degenerative disc and facet disease was both behavior
induced and related to age. The Board set aside the August 30, 2004 decision and remanded for
the Office to obtain a supplemental report from Dr. Hubbard to review the degenerative changes
seen on the May 30, 2002 MRI scan and sufficiently explain whether or not appellant’s
degenerative disc and facet disease was causally related to the October 1985 employment injury.
The complete facts of this case are set forth in the Board’s August 22, 2005 decision and are
herein incorporated by reference.
In a supplemental report dated November 27, 2006, Dr. Hubbard stated:
“Separating the process of normal aging of the human spine with its known,
overwhelming, probability of progression of spinal degeneration from
‘symptomatic degenerative lesions’ of the spine is one of the great challenges in
the diagnosis and treatment of spinal pain.”
Dr. Hubbard opined that this specific issue was a causative factor in the development of
the specialty of pain management. Regarding this case, he stated that, because no provocative
diagnostic spinal injection had been performed to determine pain source generator(s) following
appellant’s first MRI scan in 1989 or the second on May 23, 2002, it could not be determined
whether appellant’s symptoms and findings were the result of a lumbar strain/sprain injury only;
or were also the result of injury or aggravation of preexisting age-related degenerative disc
disease and/or degenerative joint disease. Dr. Hubbard concluded: “[I]n the absence of such

1

Docket No. 05-397 (issued August 22, 2005).

2

information related to the source of pain and other symptoms it can only be stated with
reasonable medical probability [that] radiographic imaging findings are related to and secondary
to age.”2
By decision dated January 16, 2007, the Office found that appellant had no continuing
disability or impairment causally related to the October 1985 employment injury. It found that
Dr. Hubbard in his November 27, 2006 report had provided sufficient medical rationale for his
opinion that appellant’s degenerative disc disease and degenerative changes shown by 1989 and
2002 MRI scan were not causally related to the October 1985 employment injury. The Office
therefore found that his supplemental referee opinion represented the weight of the medical
evidence.
By letter dated February 2, 2007, appellant requested an oral hearing, which was held on
July 18, 2007.
In a report dated June 5, 2007, Dr. David S. Whitney, Board-certified in orthopedic
surgery, expressed his disagreement with Dr. Hubbard’s opinion that appellant’s degenerative
changes were caused by age and were unrelated to his October 1985 lumbar strain injury. He
indicated that he only saw appellant on one occasion, November 8, 1999, at which time he
performed a medical examination of him. Dr. Whitney opined that appellant’s degenerative
changes were causally related to the accepted lumbar strain condition because of the following
factors: prior to October 11, 1985 appellant had no history of back injury, condition or
symptoms; his lifting injury on that date was extreme; he described symptoms consistent with
discogenic pain during his November 8, 1999 examination; on examination he exhibited no pain
behavior without exaggeration; his lumbar MRI scan showed significant degenerative disc
changes; and he showed full effort during his functional capacity evaluation by a physical
therapist, with evidence of mechanical back impairment on lifting. He stated:
“All of us will develop [radiographic] changes with time but without specific
impairment of function. In [appellant’s] case he sustained a lumbar strain with
onset of symptoms. His symptoms continue to be brought on by specific back
activities. This occurrence, when associated with a work-related injury, is known
as permanent aggravation of a preexisting asymptomatic condition.”

2

Dr. Hubbard submitted a report dated October 3, 2005, in which he opined that appellant’s degenerative disc
disease and radiographic findings were not related to the October 1985 work injury. In support of his opinion and
diagnosis, he referenced an enclosure containing an article from a medical journal. By decision dated May 31, 2006,
the Office denied compensation, finding that Dr. Hubbard’s October 3, 2005 report represented the weight of the
medical evidence. By decision dated August 8, 2006, an Office hearing representative set aside the May 31, 2006
decision, finding that Dr. Hubbard’s October 3, 2005 report failed to address the outstanding question presented by
the Board in its August 22, 2005 decision; i.e., why he believed appellant’s degenerative disc and facet disease was
related to age rather than the October 1985 work injury. The hearing representative returned the case to the district
Office, for the Office to refer the case file to Dr. Hubbard to submit another report addressing the outstanding
question issue in the case.

3

In a July 16, 2007 report, Dr. Richard R. Lynn, Board-certified in internal medicine,
stated:
“I have reviewed Dr. Hubbard’s and Dr. Whitney’s reports. I agree with
Dr. Whitney’s assessment that the October 11, 1985 strain injury contributed to
and permanently aggravated, [appellant’s] disc condition, which continues to
manifest with static standing and heavy lifting. Ever since that time, he has had to
modify his life significantly.
“I have been the primary care physician for [appellant] for years.”
In a report dated August 22, 2007, Dr. Whitney essentially reiterated his previously stated
findings and conclusions. He stated:
“To reiterate my opinion: had he for some reason undergone a lumbosacral MRI
[scan] study before October 1985, [appellant] would have, on a more probable
than not basis, shown degenerative disc disease. A large percentage of active
adults do, absent a history of injury or symptoms. This is why we examining
physicians cannot, in general, ascribe an MRI [scan] disc abnormality to an
injury. However, and this is the key, if we have a claimant/patient with no history
of previous back symptoms, a solid work history, a work-related back injury,
development of symptoms compatible with such an injury and residual symptoms
of a chronic nature along with a physical exam[ination] and MRI [scan]
compatible with traumatic residuals and no pain exaggeration or ‘phony injury
behavior’ on exam[ination], we have a more probable than not basis for
‘permanent aggravation of a previously asymptomatic condition. This is the
situation with [appellant].
By decision dated October 4, 2007, an Office hearing representative affirmed the
January 16, 2007 decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.3
Following a proper termination of compensation benefits, the burden of proof shifts back to the
claimant to establish continuing employment-related disability.4
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee the Secretary shall
appoint a third physician who shall make an examination.5 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

John F. Glynn, 53 ECAB 562 (2002).

5

Regina T. Pellecchia, 53 ECAB 155 (2001).

4

opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.6
ANALYSIS
The Board in its August 22, 2005 decision remanded to the Office for a supplemental
report from Dr. Hubbard, the impartial medical examiner, to review the degenerative changes
seen on the 1989 and 2002 MRI scans and sufficiently explain whether or not these changes and
appellant’s degenerative disc and facet disease were causally related to the October 1985
employment injury. Dr. Hubbard submitted a November 26, 2007 report stating that his review
of the case file indicated that neither the 1989 nor the 2002 MRI scans, nor any of the
contemporaneous records, documented degenerative changes which developed as a direct result
of appellant’s October 1985 employment injury. He stated that in the absence of such
documentation conclusively showing the source of appellant’s lower back pain and symptoms it
could only be stated with reasonable medical probability that his MRI scan findings were related
to age. The Office relied on Dr. Hubbard’s opinion in its January 16, 2007 decision, finding that
appellant had no continuing disability or impairment causally related to the October 11, 1985
work injury and was therefore not entitled to compensation or medical benefits.
The Board finds that Dr. Hubbard’s impartial opinion negates a causal relationship
between appellant’s continuing condition and disability related to his employment. The medical
evidence establishes that appellant no longer has any residuals from his accepted October 1985
low back strain injury. Dr. Hubbard found no indication in the record that his degenerative disc
condition was caused by anything other than the normal aging process. His opinion is
sufficiently probative, rationalized and based upon a proper factual background. Therefore, the
Office properly accorded Dr. Hubbard’s opinion the special weight of an impartial medical
examiner.7 The Board therefore finds that Dr. Hubbard’s opinion constituted the weight of
medical opinion and supports the Office’s January 16, 2007 decision to deny any entitlement to
continuing compensation based on the October 11, 1985 work injury.
Appellant subsequently requested an oral hearing and submitted the June 5 and
August 22, 2007 reports from Dr. Whitney, who stated that appellant’s degenerative changes are
causally related to the accepted lumbar strain condition. Dr. Whitney asserted that appellant
sustained a permanent aggravation of his underlying, preexisting lower back condition on
October 11, 1985, noting that he sustained an “extreme injury” on that date and had no history of
back injury, condition or symptoms prior to this injury. He also related that appellant described
symptoms consistent with discogenic pain during his November 8, 1999 examination, during
which he did not exaggerate his low back pain. Dr. Whitney also noted that appellant’s lumbar
MRI scan showed significant degenerative disc changes, which would also have been shown by
MRI scan had he undergone such testing prior to his 1985 injury.
Dr. Whitney’s reports do not constitute probative medical opinion showing that appellant
had any continuing disability or residuals from his accepted condition. He merely states that
6

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

7

Gary R. Seiber, 46 ECAB 215 (1994).

5

appellant’s degenerative disc condition and changes as shown by MRI scan were causally related
to the October 1985 employment injury; his reports do not contain a well-reasoned and
sufficiently supported opinion that would vitiate the Office’s finding that appellant did not have
any employment-related disability following the termination of his benefits. Dr. Whitney’s
reports do not outweigh Dr. Hubbard’s opinion nor do they negate the Office’s finding that
Dr. Hubbard’s November 26, 2007 report represented the weight of the medical evidence. His
report is of diminished probative value for the further reason that he has not examined appellant
since November 8, 1999. Dr. Lynn’s report is summary in nature and merely expresses his
preference for Dr. Whitney’s opinion over that of Dr. Hubbard, without providing a probative,
well-rationalized opinion that appellant’s degenerative disc condition is causally related to his
1985 work injury. Appellant failed to submit medical evidence sufficient to negate the Office’s
finding that he does not have disability caused by residuals of the accepted employment injury.
Thus, the Office hearing representative properly found in his October 4, 2007 decision that
appellant had submitted no evidence sufficient to undermine the Office’s finding, in its
January 16, 2007 decision, that the opinion of Dr. Hubbard represented the weight of the medical
evidence.
CONCLUSION
The Board finds that appellant has not met his burden to establish continuing disability.
ORDER
IT IS HEREBY ORDERED THAT the October 4 and January 16, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 08-2456
Issued: June 19, 2009

Case Submitted on the Record

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

JURISDICTION
On September 8, 2008 appellant filed a timely appeal from a September 2, 2008 decision
of the Office of Workers’ Compensation Programs denying his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3 the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained an emotional condition in the
performance of duty causally related to factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated June 16, 2008, the
Board found that appellant established his regular job duties included targets, productivity issues,
mandatory inspections, hazmat and Hazwoper talks, grievance activity, predisciplinary meetings,
2608s, accident packages, authorization of overtime, correction of clock ring errors, work-hour
budget hours and VOE surveys. The case was remanded for the Office to further develop the

medical evidence and issue an appropriate decision on the merits of the claim.1 The law and the
facts of the previous Board decision are incorporated herein by reference.
On remand the Office prepared a statement of accepted facts and a set of questions. In
notices dated July 3 and 8, 2008, the Office informed appellant that an examination had been
scheduled with Dr. Hadi Tajani, a Board-certified psychiatrist, for July 23, 2008.
By letter dated July 15, 2008, appellant stated that it was “unbelievable” that the Office
would schedule a second opinion evaluation as the Board had rendered a favorable decision. He
contended that the reports of his physicians, Dr. Paul Schorr and Dr. Linus Miller, were
sufficient to establish his claim. On July 20, 2008 appellant filed a Form CA-7, claim for
compensation, for the period April 12 to September 25, 2007. He did not attend the scheduled
examination, and on July 29, 2008, the Office proposed to suspend compensation under section
8123(d) of the Federal Employees’ Compensation Act.2 Appellant was given 14 days to show
good cause for his failure to attend the examination. In a letter dated July 31, 2008, he stated that
he had previously provided good cause for his failure to attend the scheduled examination.
By decision dated September 2, 2008, the Office denied appellant’s claim on the grounds
that he failed to attend the scheduled July 23, 2008 examination with Dr. Tajani.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.3
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.4 The determination of the need for an examination, the type of examination, the
choice of locale, and the choice of medical examiners are matters within the province and
discretion of the Office.5 Section 10.320 of Office regulations provides that a claimant must
submit to examination by a qualified physician as often and at such time and places as the Office
considers reasonably necessary.6 Section 8123(d) of the Act and section 10.323 of Office
regulations provide that, if an employee refuses to submit to or obstructs a directed medical

1

Docket No. 07-1926 (issued June 16, 2008).

2

5 U.S.C. §§ 8101-8193.

3

Ronald K. Jablanski, 56 ECAB 616 (2005).

4

5 U.S.C. § 8123(a).

5

S.B., 58 ECAB ___ (Docket No. 06-1838, issued January 11, 2007).

6

20 C.F.R. § 10.320; see Dana D. Hudson, 57 ECAB 298 (2006).

2

examination, his or her compensation is suspended until the refusal or obstruction ceases.7
Office procedures provide that before the Office may invoke these provisions, the employee is to
be provided a period of 14 days within which to present in writing his or her reasons for the
refusal or obstruction.8 If good cause for the refusal or obstruction is not established, entitlement
to compensation is suspended in accordance with section 8123(d) of the Act.9
ANALYSIS
Appellant’s claim for a stress-related condition has not been accepted. In the June 16,
2008 decision, the Board found compensable factors of employment and remanded the case to
the Office to analyze and develop the medical evidence as necessary.10 Both the Act and Office
regulations provide that a claimant must submit to examination by a qualified physician as often
and at such time and place the Office deems necessary.11 The Board has long held that the
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of the Office.12
Following remand by the Board, the Office appropriately undertook further development
of appellant’s claim and scheduled an appointment with Dr. Tajani, a Board-certified
psychiatrist. The Office’s action in requesting appellant to undergo a second opinion evaluation
to determine if his condition was causally related to the compensable employment factors was
reasonable.13 By a June 27, 2008 letter, the Office properly notified appellant of his
responsibilities regarding the scheduled medical examination including that his benefits could be
suspended under section 8123(d) of the Act for failure to report. The July 3 and 8, 2008 letters
appropriately directed appellant to report for a second opinion evaluation on July 23, 2008.
Appellant failed to appear for the examination on the scheduled date. After he failed to report
for examination on July 29, 2008 the Office gave him 14 days to explain his failure to attend in
writing. Appellant merely questioned the validity of being referred for a second opinion
evaluation and provided no reason for his failure to attend. As noted, the Act requires a claimant
to submit to an Office-directed examination as requested.14 The Board finds that appellant did
not submit evidence to show that he was unable to attend the scheduled appointment or provide

7

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; see Sharon Handy, 57 ECAB 446 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
1.820.14(d) (July 2000).
9

Id.; see J.T., 59 ECAB ____ (Docket No. 07-1898, issued January 7, 2008).

10

Supra note 1.

11

5 U.S.C. § 8123; 20 C.F.R. § 10.320.

12

S.B., supra note 5.

13

Id.

14

Supra note 12; see E.B., 59 ECAB ___ (Docket No. 07-1618, issued January 8, 2008).

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adequate reasons for not complying. Appellant did not establish good cause for refusing to
submit to the scheduled examination.15
The Board will however modify the September 2, 2008 Office decision to reflect that
appellant’s entitlement to compensation benefits are suspended rather than his claim denied.
CONCLUSION
The Board finds that appellant failed to attend a medical examination as scheduled by the
Office without good cause. Appellant claim for benefits is suspended under section 8123.16
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed, as modified.
Issued: June 19, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See J.T., supra note 9.

16

See Thomas L. Grimm, Docket No. 95-954 (issued January 15, 1997).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, LIVERNOIS POST
OFFICE, Detroit MI, Employer
__________________________________________

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

Docket No. 12-79
Issued: April 25, 2012

Case Submitted on the Record

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

JURISDICTION
On October 17, 2011 appellant, through her attorney, filed a timely appeal of a
September 6, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying
further merit review. Because over 180 days elapsed from the most recent merit decision of
January 5, 2011 to the filing of this appeal on October 17, 2011, the Board lacks jurisdiction to
review the merits of appellant’s case, pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 4, 2010 appellant, then a 30-year-old mail carrier, filed a traumatic injury
claim alleging that on December 31, 2009 she developed post-traumatic stress disorder when she
was robbed of her mailbag at gunpoint. She stated that the assailant held a gun to her left temple.
In a letter dated January 25, 2010, OWCP requested additional factual and medical
evidence from appellant regarding the alleged December 31, 2009 incident. In a note dated
January 18, 2010, Jeffrey Kane, M.D., opined that appellant could not return to work due to an
anxiety state -- not otherwise specified as a result of being mugged at gunpoint while at work.
On January 28, 2010 Dr. Young J. Kwon, a Board-certified psychiatrist, diagnosed posttraumatic stress disorder and advised that appellant was totally disabled. In a report dated
February 9, 2010, he reported that she was held at gunpoint while delivering mail on
December 31, 2009. Dr. Kwon diagnosed post-traumatic stress disorder and listed appellant’s
symptoms of insomnia, nightmares, flashbacks, heightened anxiety, panic attacks, chest tightness
and paranoia. He stated, “It is my opinion that [appellant’s] symptoms and behavioral patterns
appear to be directly related to the gunpoint incident that occurred while delivering mail on the
job.” Dr. Kwon opined that she was disabled.
In a decision dated March 1, 2010, OWCP denied appellant’s claim finding that
Dr. Kwon’s report was not well rationalized as he stated that her condition “appeared to be
directly related.”
On February 26, 2010 Dr. Kwon completed a form report and indicated with a checkmark
“yes” that appellant’s post-traumatic stress disorder was due to being held at gunpoint on
December 31, 2009. He stated, “Prior to [her] being robbed at gunpoint she did not express or
present as experiencing the symptoms.
On March 16, 2010 appellant requested an oral hearing that was held on June 2, 2010.
She described the employment incident of December 31, 2009 stating that a man jumped out of a
car, put a gun to her head and demanded her mail satchel. Appellant begged for her life, gave
him the satchel and he rushed back to his vehicle and drove away. She stated that he placed the
gun at her left temple. Appellant then called 911 and ran for her postal vehicle. The police,
postal police and postal inspectors came to the scene. Appellant explained the events to the law
enforcement agencies and was then directed to resume her route. She did not resume her route
but returned to the employing establishment to write a statement. Appellant requested to go to
the medical clinic but her supervisor denied the request as she had not sustained a physical
injury. She stated that postal inspectors required her to review suspects at the jail on January 25,
February 1, 17, 19 and March 26, 2010.
Following the oral hearing, appellant submitted the police report. In a report dated
July 8, 2010, Dr. Kwon diagnosed post-traumatic stress disorder as her symptoms developed
after the traumatic incident at work. He stated that appellant’s symptoms met the diagnostic
criteria for post-traumatic stress disorder.

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By decision dated July 20, 2010, the hearing representative denied appellant’s claim
finding that there was no sufficient medical evidence to establish that there was an actual
diagnosable condition incurred specifically due to this incident.
Appellant requested reconsideration on September 8, 2010. She submitted a report dated
September 14, 2010 from Dr. Kwon who diagnosed post-traumatic stress disorder as her
symptoms were in direct relationship to her exposure to a traumatic event. Dr. Kwon found that
appellant was totally disabled. In a report dated September 2, 2010, Dr. Pawan K. Garg, a
Board-certified psychiatrist, noted the December 31, 2009 employment incident and diagnosed
post-traumatic stress disorder as a direct result of the emotional trauma she sustained during her
work duties. He opined that appellant was totally disabled.
OWCP referred appellant for a second opinion evaluation on November 22, 2010. On
November 26 and 27, 2010 she stated that she did not plan to attend the second opinion
evaluation. Appellant submitted medical evidence regarding the birth of her son on
May 31, 2010.
By decision dated January 5, 2011, OWCP reviewed the merits of appellant’s claim and
denied modification if its prior decision on the grounds that she had not submitted sufficient
medical evidence and refused to cooperate with the scheduled second opinion evaluation.
Appellant requested reconsideration on June 22, 2011. She stated that she was
resubmitting all the paperwork as well as additional evidence and legal argument. Appellant
resubmitted the December 29, 2010 police report. She resubmitted Dr. Garg’s September 2,
2010 report with a May 3, 2011 addendum that diagnosed post-traumatic stress disorder and
opined that her condition was directly related to trauma sustained while performing her letter
carrier job on December 31, 2009. Dr. Garg noted that appellant was held at gunpoint with
severe emotional trauma fearing for her life. He stated that she was severely impacted by her
symptoms and markedly limited in her abilities for daily functioning. Dr. Garg opined that
appellant was totally and permanently disabled.
By decision dated September 6, 2011, OWCP declined to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request did not include new and relevant
evidence or raise substantive legal questions. It stated “Dr. Garg’s addendum, the only piece of
new evidence, dated May 3, 2011 simply repeated his prior notes dated September 2, 2010
without providing a detailed description of his findings upon evaluation or a well-reasoned
explanation of how he arrived at his conclusion that your diagnosed post-traumatic stress
disorder is causally related to the events on December 31, 2009.”
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
2

5 U.S.C. §§ 8101-8193, 8128(a).

3

forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.3 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.4
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.5
ANALYSIS
Appellant requested reconsideration of the January 5, 2011 merit decision on
June 22, 2011. She resubmitted the police report addressing the events of December 31, 2009.
Appellant also resubmitted Dr. Garg’s September 2, 2010 report including a May 3, 2011
addendum. This addendum diagnosed post-traumatic stress disorder and opined that her
condition was directly related to trauma sustained while performing her letter carrier job on
December 31, 2009. Dr. Garg noted that appellant was held at gunpoint with severe emotional
trauma fearing for her life. He opined that she was totally and permanently disabled.
The Board finds that the evidence submitted is not sufficient to require OWCP to reopen
appellant’s claim for consideration of the merits. As noted by OWCP, the police report was
repetitious of evidence previously considered by OWCP. It reviewed Dr. Garg’s September 2,
2010 report prior to issuing the January 5, 2011 merit decision. His May 3, 2011 addendum is
essentially a restatement of the September 2, 2010 report with a statement of the events of
December 31, 2009, a diagnosis of post-traumatic stress disorder and an opinion that appellant
was disabled. Dr. Garg did not provide additional new evidence regarding the basis for his
opinion such as medical reasoning explaining why he believed the December 31, 2009
employment incident resulted in his diagnosis. Without relevant new medical evidence
addressing the central issue in appellant’s claim, the causal relationship between her diagnosed
condition and her accepted employment incident, she has not submitted sufficient evidence to
require OWCP to reopen her claim for consideration of the merits.
CONCLUSION
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits as she failed to submit pertinent new and relevant medical evidence
3

20 C.F.R. § 10.606.

4

Id. at § 10.608.

5

M.E., 58 ECAB 694 (2007).

4

on the central issue of her claim, whether and how the December 31, 2009 employment incident
resulted in her diagnosed condition of post-traumatic stress disorder.
ORDER
IT IS HEREBY ORDERED THAT the September 6, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, MARINE AIR
CORPS STATION, Yuma, AZ, Employer
__________________________________________

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Appearances:
David J. Holdsworth, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2404
Issued: March 5, 2009

Case Submitted on the Record

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

JURISDICTION
On September 13, 2008 appellant filed a timely appeal from an April 9, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration on the grounds that it was untimely and failed to demonstrate clear evidence of
error. Because more than one year has elapsed from the last merit decision dated June 10, 2003
and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated February 5, 2004, the Board
affirmed a June 10, 2003 Office decision, which denied appellant’s claim for an injury on
November 25, 1998. The facts of the previous Board decision are incorporated herein by
reference.
By letter dated September 11, 2007, appellant, through her attorney, requested
reconsideration. She submitted two disability certificates dated January 13 and 30, 1999 which
did not mention the claimed November 25, 1998 fall at work. In a March 3, 2005 report,
Dr. Gregory L. Peare, an attending Board-certified orthopedic surgeon, could not explain the
causal relationship between appellant’s left knee and left shoulder conditions but believed that
the November 25, 1998 fall could have aggravated preexisting conditions. In reports dated
January 20 and 23, 2006, he diagnosed subacromial impingement of the left shoulder, a rotator
cuff tear and acromioclavicular (AC) joint arthritis. A January 31, 2006 operative report noted
that appellant underwent left shoulder arthroscopy surgery. In an August 21, 2007 report,
Dr. Leona M. Martin, an attending Board-certified internist, stated that appellant’s November 25,
1998 fall resulted in a direct traumatic blow to her left knee and left shoulder and caused an
aggravation of preexisting left knee and left shoulder conditions and disability for work. She
was not aware of any other factors which could have caused an increase in left knee and left
shoulder pain. Appellant also submitted medical evidence previously of record and arguments
concerning the Office’s handling of her request for reconsideration.
By decision dated April 9, 2008, the Office denied appellant’s request for reconsideration
on the grounds that the request was untimely and failed to show clear evidence of error in the last
merit decision dated June 10, 2003.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2 As
one such limitation, 20 C.F.R. § 10.607 provides that an application for reconsideration must be
sent within one year of the date of the Office decision for which review is sought. The Office
will consider an untimely application only if the application demonstrates clear evidence on the

1

See Docket No. 03-2087 (issued February 5, 2004). On December 5, 1998 appellant, then a 55-year-old store
worker, filed a traumatic injury claim alleging that on November 25, 1998 she injured her right elbow, left rib and
left shoulder blade when she tripped and fell while in the employing establishment parking lot. By decisions dated
March 17, 1999, July 22, 2000 and March 7, 2001, the Office denied her claim on the grounds that her fall was not
sustained in the performance of duty. By decision dated December 12, 2001, an Office hearing representative found
that the November 25, 1998 fall occurred in the performance of duty but the medical evidence did not establish that
appellant sustained a medical condition causally related to the fall. By decisions dated May 31, 2002 and June 10,
2003, the Office upheld its denial of her claim.
2

5 U.S.C. §§ 8101-8193.

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part of the Office in its most recent merit decision. The application must establish, on its face,
that such decision was erroneous.3
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which, on its face, shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized medical report which, if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the Director’s own motion.4
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.5 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.6 To show clear evidence of error, it is not enough that the evidence be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error; it must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s
decision.7 The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.8
ANALYSIS
The merits of appellant’s case are not before the Board. Her request for reconsideration
was dated September 11, 2007, more than one year after the Board’s February 5, 2004 decision,
and therefore not timely. The issue to be determined is whether appellant demonstrated clear
evidence of error in her untimely request for reconsideration.
The record reflects that the Office’s merit decision on June 10, 2003 denied appellant’s
claim on the grounds that the medical evidence did not establish that she sustained an injury on
November 25, 1998 causally related to her employment.
In support of her untimely request for reconsideration, appellant submitted two disability
certificates dated January 13 and 30, 1999. These disability certificates do not mention the
November 25, 1998 fall at work. Therefore, they do not raise a substantial question as to the
3

20 C.F.R. § 10.607.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).

5

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004).

6

Darletha Coleman, 55 ECAB 143 (2003).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001).

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correctness of the Office’s June 10, 2003 merit decision or demonstrate clear evidence of error.
In reports dated March 3, 2005 and January 20 and 23, 2006, Dr. Peare diagnosed subacromial
impingement of the left shoulder, a rotator cuff tear and acromioclavicular joint arthritis. He
could not provide a definite causal relationship between appellant’s left knee and left shoulder
conditions but felt that the November 25, 1998 fall could have aggravated preexisting conditions.
In an August 21, 2007 report, Dr. Martin stated that appellant’s November 25, 1998 fall resulted
in a direct traumatic blow to her left knee and left shoulder and caused an aggravation of
preexisting left knee and left shoulder conditions and disability from work. As noted, even
evidence such as a detailed, well-rationalized medical report which, if submitted prior to the
Office’s denial, would have created a conflict in medical opinion requiring further development,
is not clear evidence of error and would not require a review of the case on the Director’s own
motion. The reports of Dr. Peare and Dr. Martin, which are not well rationalized, do not raise a
substantial question as to the correctness of the Office’s June 10, 2003 merit decision or
demonstrate clear evidence of error. Appellant submitted medical evidence previously of record.
Because this evidence was previously considered by the Office, it does not raise a substantial
question as to the correctness of the June 10, 2003 merit decision or demonstrate clear evidence
of error. She presented arguments concerning the Office’s handling of her request for
reconsideration. These arguments do not address the issue in the June 10, 2003 merit decision of
whether the medical evidence was sufficient to establish causal relationship between appellant’s
medical conditions and the November 25, 1998 fall. Consequently, they do not demonstrate
clear evidence of error.
Because appellant’s untimely request for reconsideration did not demonstrate clear
evidence of error in the June 10, 2003 merit decision, the Office properly denied her request for
reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to demonstrate clear evidence of error in the June 10,
2003 Office merit decision.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 9, 2008 is affirmed.
Issued: March 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
J.B., Appellant
and
U.S. ARMY CORPS OF ENGINEERS, OLD
HICKORY POWER PLANT, Hendersonville, TN,
Employer
____________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 07-2066
Issued: February 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 6, 2007 appellant filed a timely appeal from the July 23, 2007 decision of an
Office of Workers’ Compensation Programs’ hearing representative affirming the April 4, 2007
schedule award for 90 percent loss of hearing in his left ear. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 90 percent monaural hearing loss in his
left ear and no ratable hearing loss to his right ear.
FACTUAL HISTORY
On October 18, 2005 appellant, then a 60-year-old retired power plant mechanic, filed an
occupational disease claim, Form CA-2, alleging that his left ear hearing loss was caused by his
exposure to noisy machinery from 1970 to August 2, 2004. He submitted several years of
audiograms. Appellant stated that on August 15, 2003 he made a claim with the Department of

Veterans Affairs (DVA) for his hearing loss and was awarded $110.00 per month for a 10
percent military-related impairment.
On January 27, 2006 the Office referred appellant for a second opinion examination with
Dr. James Fordice, a Board-certified otolaryngologist, who found that appellant’s hearing loss
was in excess of what would be predicted by presbycusis but that not all of it was caused by his
federal employment. He stated that appellant’s employment exposure was sufficient to cause the
hearing loss found in the right ear and an equivalent amount in his left ear. Dr. Fordice opined,
however, that appellant’s profound left ear loss could not have been caused by his federal
employment. He diagnosed bilateral sensorineural hearing loss. The audiometric test results for
500, 1,000, 2,000 and 3,000 cycles per second (cps) showed hearing losses of 10, 20, 15 and 20
decibels, respectively, for the right ear and losses of 40, 115, 115 and 115 decibels, respectively,
for the left ear.
On February 27, 2006 an Office medical adviser noted that, based on Dr. Fordice’s
findings, appellant had no ratable hearing loss in his right ear and 100 percent hearing loss in his
left ear. However, the medical adviser found that appellant was not entitled to a schedule award
since the portion of his bilateral hearing loss attributable to his federal employment, based on the
right ear loss, was unratable.
By decision dated March 1, 2006, the Office accepted appellant’s claim for noise-induced
bilateral hearing loss. In a separate decision on the same date, the Office notified him that he
was not entitled to a schedule award because his employment-related hearing loss was not severe
enough to be ratable. On March 7, 2006 appellant requested an oral hearing.
By decision dated December 18, 2006, the Office hearing representative found that the
case was not in posture and set aside the March 1, 2006 decision. He found that the record
established that appellant was entitled to a schedule award for 100 percent hearing loss in the left
ear. The Office hearing representative noted that the Office was required to pay a schedule
award for the entire left ear hearing loss if any portion of the loss was work related. He also
noted that appellant had already received some benefits from the DVA related to his left ear
hearing loss. The Office hearing representative stated that, on remand, the Office should
determine whether appellant was receiving dual benefits from the DVA and the Office.
On January 19, 2007 the Office notified appellant that he would have to make an
irrevocable election between schedule award benefits from the Office and disability payments
from the DVA, as both were connected to the left ear hearing loss he experienced during his
federal civilian employment. The Office stated that appellant would be entitled to a schedule
award of 52 weeks of compensation if he elected to receive benefits from the Office, but that he
would have to repay the benefits already paid by the DVA.
On February 6, 2007 appellant elected to accept benefits from the Office. On
February 17, 2007 at the request of the Office he completed a claim for compensation requesting
a schedule award.
On March 20, 2007 the Office submitted appellant’s medical records to Dr. Agustus
Anderson, an Office medical adviser, for an opinion on appellant’s entitlement to a schedule

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award. Dr. Anderson noted that the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed., 2001), page 247, indicated that, if hearing loss is greater than
100 decibels at any level, it should be listed as 100 when making calculations related to hearing
loss. Using the method prescribed by the A.M.A., Guides, he found that appellant had no ratable
hearing loss in his right hear and 90 percent hearing loss in his left ear.
By decision dated April 4, 2007, the Office granted a schedule award for 46.8 weeks of
compensation based on 90 percent left ear hearing loss and 0 percent right ear hearing loss. It
found that Dr. Anderson’s opinion carried the weight of the medical evidence because, unlike the
first Office medical adviser, he took into account appellant’s preexisting hearing loss and
properly utilized the A.M.A., Guides.
On April 15, 2007 appellant requested a review of the written record. He stated that he
relied on the Office’s erroneous statement that he was entitled to 52 weeks of compensation
when he made his irrevocable election. Appellant also stated that the Office’s physicians had not
adequately addressed his tinnitus.
By decision dated July 23, 2007, an Office hearing representative affirmed the April 4,
2007 decision. He found that Dr. Anderson, the Office medical adviser, had properly applied the
A.M.A., Guides to find that appellant had 90 percent hearing impairment in his left ear. The
Office hearing representative also found that the Office had properly calculated appellant’s
schedule award amount.1
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body.2 However, the Act does not specify the manner in which the percentage of loss is to be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.5 Then, the fence of 25 decibels is deducted because,
1

The Office did not make any final decision on the arguments appellant raised in his request for review of the
record. Therefore, the Board has no jurisdiction to address either of them.
2

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.404.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides 226-51 (5th ed. 2001).

5

Id.

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as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.6 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.8 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.9
ANALYSIS
The Office referred appellant to Dr. Fordice, a Board-certified otolaryngologist, for a
second opinion on the cause of his hearing loss. After receiving Dr. Fordice’s report, which
found that portions of appellant’s hearing loss were employment related, the Office referred
appellant’s record to an Office medical adviser for an opinion and application of the Office’s
protocols for computing the percentage of hearing loss. The Office medical adviser improperly
applied the A.M.A., Guides to find that appellant had 100 percent hearing loss in his left ear. He
also opined that appellant should not receive a schedule award because the portion of his hearing
loss related to his federal employment was not ratable. Based on this opinion, the Office found
that appellant was not entitled to a schedule award. The Office hearing representative reversed
the Office’s decision and remanded the case to determine whether a schedule award should be
issued.
Following the remand of appellant’s case by the Office hearing representative, the Office
properly referred the medical record to Dr. Anderson, a second Office medical adviser. He
reviewed Dr. Fordice’s report and properly utilized the A.M.A., Guides to determine appellant’s
compensable hearing loss. Dr. Anderson added the right ear decibel losses recorded at 500,
1,000, 2,000 and 3,000 cps, which were 10, 20, 15 and 20 decibels, respectively, for a total of 65
decibels. When divided by four, the result is an average hearing loss of 16.25 decibels. The
average loss was then reduced by the “fence” of 25 decibels to equal zero, which, when
multiplied by the established factor of 1.5 results in a zero percent monaural hearing loss for the
right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps
revealed levels of 40, 115, 115 and 115 decibels, respectively, Dr. Anderson correctly noted that
the A.M.A., Guides, page 427, states that all results above 100 should be recorded as 100 when
utilizing the monaural hearing loss formula. Therefore, he correctly found a total loss of 340
decibels. When divided by 4, the result is an average hearing loss of 85 decibels. The average
loss was reduced by the “fence” of 25 decibels to equal 60, which when multiplied by the
established factor of 1.5 results in a 90 percent monaural loss for the left ear. The evidence of
record establishes that appellant has no ratable hearing loss in the right ear and a 90 percent loss

6

Id.

7

Id.

8

Id.

9

Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).

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in the left ear. The Board finds that the Office properly determined appellant’s entitlement to a
schedule award.10
As appellant submitted no additional medical evidence to establish that he has a hearing
loss of greater than 90 percent in his left ear, the Board finds that he has not met his burden of
proof for an increased schedule award.
CONCLUSION
The Board finds that appellant has a 90 percent hearing loss in his left ear and a
nonratable hearing loss to his right ear.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 23 and April 4, 2007 are affirmed.
Issued: February 20, 2008
Washington, DC

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

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

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

10

The Office issued an award for 46.8 weeks of compensation based on the 90 percent monaural loss. For a total
loss of the hearing, the Act provides a maximum of 52 weeks of compensation. See 5 U.S.C. § 8107(c)(A).
Appellant received the appropriate amount of 46.8 weeks of compensation, or 90 percent of 52 weeks.

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