United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Cheektowaga, NY, Employer
__________________________________________

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

Docket No. 11-736
Issued: November 10, 2011

Case Submitted on the Record

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

JURISDICTION
On January 31, 2011 appellant filed a timely appeal from a November 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed the denial
of her claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record also contains a December 16, 2010 decision denying appellant’s request for a hearing. Appellant’s
attorney did not appeal from this decision.

FACTUAL HISTORY
On January 12, 2010 appellant, then a 59-year-old customer service representative, filed
an occupational disease claim alleging that she developed carpal tunnel syndrome in the
performance of duty. Her physician advised that the condition was work related. Appellant first
became aware of the injury and its relation to her work on August 8, 2008. She stopped work on
that date and returned on February 13, 2009.
In an August 11, 2008 report, Dr. Joseph Corigliano, a Board-certified family practitioner
and osteopath, diagnosed carpal tunnel syndrome and placed appellant off work from August 11
to 18, 2008. A September 25, 2009 electromyography (EMG) scan, interpreted by Dr. Tomas
Holmlund, a Board-certified neurologist, revealed left median neuropathy, distal to the wrist,
consistent with carpal tunnel syndrome and chronic left C8 radiculopathy. The record contains
an August 15, 2008 disability certificate from a physician’s assistant.
In reports from October 30, 2008 to January 22, 2009, Dr. Xin Zhou, a Board-certified
physiatrist and treating physician, diagnosed carpal tunnel syndrome status post recent surgery
and left wrist sprain status following a fall two weeks prior. She noted that appellant worked in
customer service full time which involved typing and answering telephone calls. Dr. Zhou
related that appellant had a history of carpal tunnel syndrome secondary to a fall at work which
occurred on August 7, 2006. She noted that appellant underwent left carpal tunnel surgery on
September 15, 2008. Dr. Zhou noted that two weeks earlier, appellant fell and landed on the
extended left hand and developed shooting pain in the left wrist after that fall. She advised that
appellant related that she noticed left hand weakness but was unable to determine if the pain was
old or new because she had not used the left hand because lifting two to three pounds would
cause severe pain in the left wrist. In her December 16, 2008 report, Dr. Zhou reviewed the
nerve conduction studies (NCS) and EMG summary and concluded that appellant had
electrodiagnostic evidence of median nerve neuropathy, which was moderate to severe. She
provided a January 17, 2009 report in which she repeated her previous findings and opined that
appellant had a “history of carpal tunnel syndrome caused by a work-related injury.” Dr. Zhou
also provided appellant with disability certificates placing her off work from October 27, 2008 to
January 22, 2009.
In a February 16, 2010 report, Dr. Timothy McGrath, a Board-certified orthopedic
surgeon, noted that appellant was in for follow-up regarding left hand numbness and tingling
symptoms. Appellant had been working for the employing establishment since January 2002
performing a significant amount of repetitive use of the left hand, including prolonged multiple
mouse clicking. Dr. McGrath noted that appellant had a claim for her condition back in
August 2008 and underwent a left carpal tunnel release on September 14, 2008. He related that
she was “unsure of whether or not the claim has actually been accepted.” Dr. McGrath noted
that appellant had another separate injury at work in 2005 when she fell off of a chair at work
landing on her left side. He advised that it caused some numbness and tingling symptoms in the
hand. Dr. McGrath also noted that appellant had two previous two-level cervical discectomies
and fusions related to a cervical spine injury from a motor vehicle accident. He noted that
appellant also had persistent left hand numbness and tingling symptoms for which she had repeat
NCS. Dr. McGrath diagnosed probable left recurrent carpal tunnel syndrome. He opined that
appellant’s original carpal tunnel problem, even prior to her carpal tunnel release surgery, was
2

related to the longstanding repetitive overuse of her hands. Dr. McGrath noted that this may
represent a recurrent carpal tunnel problem and she has continued with repetitive use. He
advised that “the ongoing repetitive overuse of the hand contributed to possible recurrent carpal
tunnel syndrome.”
In a letter dated February 24, 2010, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim.3 It requested that she submit additional supportive factual
and medical evidence. A copy of the letter was also provided to the employing establishment.
In a March 25, 2010 statement, appellant indicated that she believed that she had an open
claim because after she fell on September 16, 2005 which was on her left side, she had pain and
numbness to her left side which she believed was the onset of the carpal tunnel syndrome. She
indicated that she was advised by her physicians that this could have brought on her condition.
Furthermore, when appellant started work in January 2002, she did not have any pain, numbness
or any other issues. She related that she would be off from work for a bit, and her hands would
recover “a little” but, as soon as she returned to work and did the “repetitive mouse clicking and
typing,” the pain returned and precluded her from using her hands. Appellant explained that she
was “not sure what Dr. Zhou was referring to when using the date of August 7, 2006 -- I believe
she is referring to the September 16, 2005 date but inserted the incorrect date.” She also noted
that she purchased her own keyboard supports and described her job duties, which included
numerous keyboard clicks comprised of an average of 40 to 60 mouse clicks ever three to five
minutes. Appellant included a description of the keyboard strokes she used.
In a March 9, 2010 statement, James D. Bialy, a team manager, confirmed that the
description appellant provided for her job duties was possible and provided a position
description.
By decision dated April 15, 2010, OWCP denied appellant’s claim on the grounds that
the medical evidence did not establish that specific job duties caused her claimed condition.
On April 21, 2010 counsel requested a telephonic hearing, which was held on
August 11, 2010. During the hearing, appellant testified that she had an injury to her left arm
and side in 2005 when she fell off a chair. She testified about her carpal tunnel syndrome
diagnosis and her work duties. Appellant also provided an ergonomic survey dated March 2,
2010, which was performed on her behalf. She indicated that, afterwards, she was assigned to a
new cubical with a touch screen instead of a mouse, which was very helpful. Appellant
confirmed that she had worked on the old equipment for approximately nine years. She also
advised that she had right carpal tunnel surgery while working for a previous employer in 1996.
Appellant testified that she had worked for the employing establishment since 2002.
In a September 1, 2009 report, Dr. McGrath noted that appellant was seen for left
shoulder and hand pain. He noted her 2005 work incident stating that appellant fell out of a chair
and landed on her left arm and hand. Dr. McGrath indicated that appellant had previously
3

OWCP noted that appellant had a previous claim for a September 16, 2005 injury when she fell over backwards
from a chair. Claim No. xxxxxx837. The claim was denied by OWCP and the Board affirmed OWCP’s denial of
the claim. Docket No. 08-2122 (issued May 4, 2009). This claim is not before the Board on the present appeal.

3

undergone a cervical decompression and fusion in 2005 and that she subsequently underwent a
left open carpal tunnel release. He advised that she was doing well until two weeks following
the 2005 incident at work, when she fell out of a chair, landing on her left side and her hand and
shoulder. Dr. McGrath noted that appellant was seen at that time and had x-rays which were
interpreted as normal. He indicated that she continued to experience persistent tenderness at the
wrist at the base of her carpal tunnel incision, as well as persistent left shoulder pain which was
intermittent in nature and gradually worsened. Dr. McGrath opined that appellant was “status
post left open carpal tunnel release, with aggravation of the wrist following an aggravating workrelated injury, as well as left shoulder rotator cuff impingement which has been aggravated by
her work-related fall. Since appellant was previously asymptomatic for this, I believe that this
causally related to her above-described work injury.” Dr. McGrath reiterated that the problems
with the left side were causally related to her aggravating work injury.
In a November 9, 2010 decision, OWCP’s hearing representative affirmed the April 15,
2010 decision.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized medical opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based upon a complete factual and medical background of
the claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
Appellant attributed her bilateral carpal tunnel syndrome to “repetitive mouse clicking
and typing,” as a customer service representative. OWCP accepted the occurrence of the
claimed employment factors. The issue, therefore, is whether the medical evidence establishes a
causal relationship between the claimed conditions and the identified employment factors.
The medical evidence includes several reports from Dr. Zhou. In an October 30, 2008
report, Dr. Zhou diagnosed carpal tunnel syndrome status post recent surgery and left wrist
4

Solomon Polen, 51 ECAB 341 (2000); see also Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

Id.

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sprain status post fall two weeks ago. Although she noted that appellant worked in customer
service “full time” with duties comprised of typing and answering telephone calls, she related the
history of carpal tunnel syndrome secondary to a fall at work which occurred on August 7, 2006.
Dr. Zhou does not attribute the condition to the repetitive duties alleged by appellant in the
present occupational disease claim or otherwise provide rationale regarding how appellant’s
repetitive work duties caused or aggravated her condition.6 Her January 17, 2009 report advised
that appellant had a “history of carpal tunnel syndrome caused by a work-related injury” but did
not provide any medical reasoning to explain how appellant’s particular repetitive work duties
caused or aggravated her condition. Without any explanation as to how Dr. Zhou arrived at this
conclusion, the report is of limited probative value.7 Her December 16, 2008 report noted
findings from diagnostic testing but did not address whether appellant had a work-related
condition. The other notes and disability certificates from Dr. Zhou did not address the cause of
appellant’s condition. Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.8 Thus,
evidence from Dr. Zhou is insufficient to establish appellant’s claim.
In a September 1, 2009 report, Dr. McGrath noted appellant’s 2008 left carpal tunnel
release and opined that appellant had aggravation of the wrist following an aggravating workrelated injury, as well as left shoulder rotator cuff impingement which was aggravated by her
work-related fall in 2005. He opined that she was previously asymptomatic for this and stated
that he believed that this was causally related to her work injury. Dr. McGrath reiterated in this
report, as well as in his February 16, 2010 report, that appellant’s problems with the left side
were due to her previously claimed injury in 2005. However, as explained, matters relating to
the September 16, 2005 incident were denied by OWCP in a separate claim and are not presently
before the Board.9 Moreover, the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.10 On February 16, 2010 Dr. McGrath
noted appellant’s repetitive hand use including prolonged mouse clicking at work since
January 2002. He also noted that appellant had two previous cervical spine surgeries related to a
motor vehicle accident. Dr. McGrath concluded that appellant’s original carpal tunnel problem
was due to longstanding repetitive overuse of her hands. However, he did not explain in either
of his reports the reasons why particular repetitive duties caused or aggravated her carpal tunnel
condition. The need for reasoning, or rationale, is particularly important as the record indicates
that appellant had nonwork-related right carpal tunnel and cervical spine conditions.
6

Appellant advised that Dr. Zhou gave an incorrect date of the fall noting that the fall occurred on
September 16, 2005. The Board notes that OWCP separately adjudicated, in claim number xxxxxx837, whether the
September 16, 2005 incident caused an injury. Should appellant wish to further address whether the September 16,
2005 incident caused an injury, she should pursue the matter through OWCP claim number xxxxxx837. See supra
note 3.
7

T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the issue
of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale.
8

S.E., Docket No. 08-2214 (issued May 6, 2009).

9

See supra notes 3, 6.

10

A.C., Docket No. 08-1453 (issued November 18, 2008).

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Dr. McGrath gave no reasoned explanation as to why her current conditions were due to work
factors, such as clicking a mouse with her left hand, and not attributable to her nonwork-related
conditions. Thus, his opinion on causal relationship is of limited probative value.
Other medical evidence submitted by appellant is insufficient to establish the claim
because it does not address whether particular work factors caused or aggravated appellant’s
claimed condition.11 Additionally, appellant submitted evidence from a physician’s assistant.
However, lay individuals such as physicians’ assistants are not competent to render a medical
opinion under FECA.12 Consequently, this evidence cannot be considered as medical evidence
in evaluating whether she established her claim.
The Board therefore finds that as appellant did not submit sufficient medical evidence to
establish that her carpal tunnel syndrome is causally related to factors of employment.
CONCLUSION
Appellant did not meet her burden of proof in establishing her claim.

11

See supra note 8.

12

E.K., Docket No. 09-1827 (issued April 21, 2010). See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2
ECAB 208, 211 (1949) (where the Board has held that a medical opinion, in general, can only be given by a
qualified physician).

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ORDER
IT IS HEREBY ORDERED THAT the November 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Lexington, KY, Employer
__________________________________________

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Appearances:
Joshua S. Harp, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-570
Issued: June 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2015 appellant, through counsel, filed a timely appeal from an August 8,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic brain
injury and an aggravation of her preexisting bipolar condition causally related to a September 21,
2009 employment incident, as alleged.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 8, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, counsel contends that OWCP failed to recognize that appellant met her burden
of proof by submitting probative, well-reasoned and rationalized medical opinion evidence to
support her claim for compensation, wrongfully disregarded the medical evidence submitted, and
failed to further develop the medical evidence in processing and evaluating appellant’s claim.
FACTUAL HISTORY
On September 28, 2009 appellant, then a 59-year-old social worker, filed a claim of
traumatic injury (Form CA-1) alleging that she sustained an injury on September 21, 2009 as a
result of hitting her head on a steering wheel during a motor vehicle accident in the performance
of duty.
In an October 6, 2009 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted reports dated September 21 and 23, 2009 from Heather Pile, a
physician’s assistant, who diagnosed facial contusion status-post motor vehicle accident. On
October 2, 2009 Ms. Pile indicated that appellant had some memory loss and a diagnosed head
contusion, ruling out intracranial injury.
By decision dated November 12, 2009, OWCP denied appellant’s claim on the basis that
she failed to establish an injury in the performance of duty.
On November 5, 2010 appellant, through counsel, requested reconsideration
and submitted reports dated February 8 and April 29, 2010 from Linda Granacher, a licensed
clinical social worker, who diagnosed traumatic brain injury and indicated that appellant was in
an employment-related motor vehicle accident on September 21, 2009. Ms. Granacher also
mentioned that appellant fell on ice while visiting her sister’s home on February 19, 2010.
By decision dated March 25, 2011, OWCP denied modification of its prior decision.
On February 1, 2012 appellant, through counsel, requested reconsideration and submitted
psychological and neurological assessment results dated January 14, March 30, and
May 13, 2010.
In reports dated February 8, 2010 through March 20, 2013, Dr. Robert Granacher, a
Board-certified forensic and geriatric psychiatrist, diagnosed bipolar disorder, panic disorder,
and closed head injury due to a motor vehicle accident on September 21, 2009 with aggravation
of cognitive function. Dr. Granacher indicated that appellant had been treated for bipolar
disorder since 1996. He stated that she was in a car accident on September 21, 2009 and
sustained “a closed head injury producing a mild traumatic brain injury.” Dr. Granacher opined
that the mild traumatic brain injury aggravated appellant’s bipolar condition and on October 9,
2009 she experienced an exacerbation of her bipolar disorder.
On May 3, 2010 Dr. Granacher diagnosed cognitive disorder due to closed head injury on
September 21, 2009, with associated mild cerebral atrophy on computerized tomography (CT)
scan. He indicated that appellant was experiencing significant thought difficulty, her thought

2

processes were scattered, her thought and motor speeds were reduced, and she had obvious
cognitive inefficiency.
On May 26, 2010 Dr. Granacher found that a neuropsychological battery of tests revealed
that appellant was impulsive and demonstrated poor vigilance of attention over time and her
visual attention measurements revealed mild to moderate impairment of accuracy on visual
scanning. He found that the majority of her cognitive scores varied from “below average to
above average range.” Dr. Granacher noted that he could “not calculate a completely accurate
preinjury cognitive capacity estimation because of the discrepancy between the predicted Test of
Premorbid Function score and her actual Test of Premorbid Function performance score.”
Dr. Granacher tested appellant using the Connor’s Continuous Performance Test -- II on
January 14, 2010 and found that she showed slight improvement when he tested her again on
March 30, 2010.
On November 9, 2010 Dr. Granacher explained that the mechanical forces of appellant’s
motor vehicle accident on September 21, 2009 probably would not have caused this level of
cognitive dysfunction in an ordinary person, however, “persons with bipolar illness are
exquisitely sensitive to head trauma.” He opined that her head injury “biomechanically
destabilized her bipolar illness such that she [was] now not capable of competitive work.”
On January 14, 2013 Dr. Granacher stated that, prior to the September 21, 2009 motor
vehicle accident, appellant showed no evidence of significant cognitive dysfunction while
laboring under the burden of her bipolar condition. He concluded that her condition was causally
related to the September 21, 2009 motor vehicle accident which “destabilized her moods and
caused a significant impairment of attention.”
By decision dated March 30, 2012, OWCP affirmed its prior decision, as modified,
finding that the evidence was sufficient to establish an injury in the performance of duty, but
failed to establish a causal relationship between appellant’s conditions and the September 21,
2009 employment incident.
On March 28, 2013 appellant, through counsel, requested reconsideration.
In a January 6, 2010 report, Dr. Andrew Schneider, a Board-certified neurologist,
reviewed appellant’s medical history and conducted a physical examination. He indicated that
she had “longstanding bipolar disorder” and provided “a slightly scattered history.”
Dr. Schneider stated that on September 21, 2009 appellant was involved in a car accident where
she hit her head on the steering wheel, but did not lose consciousness. The next week, appellant
was “backing out her vehicle at work when she backed into another car,” but there was no
reported injury. She also had a “bad emotional break” due to an issue with a patient and
coworkers around that same time. Dr. Schneider found that appellant was neurologically awake,
alert, and oriented. Appellant’s speech was clear and fluent. She scored 30 on the Mini Mental
State Examination (MMSE). She could do serial 7s without difficulty. Appellant’s cranial
nerves were unremarkable and funduscopic examination was benign. Regarding her memory
complaints, Dr. Schneider opined that this problem reflected impaired concentration related to
significant affective and emotional stress. He noted that it was difficult to exclude a mild
postconcussion syndrome related to the September 21, 2009 car accident, but concluded that they

3

were not causally related as appellant’s symptoms were not evinced until a month or two later,
after her emotional break. Dr. Schneider reviewed her CT scans and opined that a possible
cerebral atrophy was “an incidental finding, as certainly whatever atrophy [was] present was
there before September, and before September she was at her baseline level of cognitive
functioning….”
By decision dated May 3, 2013, OWCP affirmed its prior decision, as modified,
accepting appellant’s claim for contusion of face, scalp, and neck, except eyes, but finding that
the evidence was insufficient to establish a traumatic brain injury and an aggravation of her
preexisting bipolar condition.
On April 25, 2014 appellant, through counsel, requested reconsideration and submitted
reports dated June 4, 2013 through March 16, 2014 from Dr. Brian Greenlee, an attending
psychiatrist, who indicated that she had a prior diagnosis of bipolar and panic disorder and
diagnosed unspecified episodic mood disorder, panic disorder without agoraphobia, traumatic
brain injury, and cholesterolemia. Dr. Greenlee opined that she had no medical condition
complicating her psychiatric condition or treatment prior to the mild traumatic brain injury on
September 21, 2009, which aggravated her episodic mood disorder and resulted in significant
cognitive difficulties including impairment of attention and executive functioning.
By decision dated August 8, 2014, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment

3

Supra note 1.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

4

incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of September 21, 2009 occurred at the
time, and in the place, and manner alleged. The issue is whether appellant’s traumatic brain
injury and an aggravation of her preexisting bipolar condition resulted from the September 21,
2009 employment incident. The Board finds that she did not meet her burden of proof to
establish a causal relationship between the conditions for which compensation is claimed and the
employment incident.
The Board finds that Dr. Schneider’s report does not support appellant’s claim.
Dr. Schneider found that she was neurologically awake, alert, and oriented. Appellant’s speech
was clear and fluent. She scored 30 on the MMSE. Appellant could do serial 7s without
difficulty. Her cranial nerves were unremarkable and funduscopic examination was benign.
Regarding appellant’s memory complaints, Dr. Schneider opined that this problem reflected
impaired concentration related to significant affective and emotional stress. He noted that it was
difficult to exclude a mild postconcussion syndrome related to the September 21, 2009 car
accident, but concluded that they were not causally related as her symptoms were not evidence
until a month or two later, after her emotional break. Dr. Schneider reviewed appellant’s CT
scans and opined that a possible cerebral atrophy was “an incidental finding, as certainly
whatever atrophy [was] present was there before September, and before September [appellant]
was at her baseline level of cognitive functioning.”
In his reports, Dr. Granacher diagnosed bipolar disorder, panic disorder, closed head
injury due to a motor vehicle accident on September 21, 2009 with aggravation of cognitive
function, and cognitive disorder due to closed head injury on September 21, 2009, with
associated mild cerebral atrophy on CT scan. He explained that “persons with bipolar illness are
exquisitely sensitive to head trauma” and opined that appellant’s head injury biomechanically
destabilized her moods and caused a significant impairment of attention such that she was not
capable of competitive work. However, Dr. Granacher failed to explain why she showed slight
improvement when tested using the Connor’s Continuous Performance Test -- II from
January 14 to March 30, 2010. The Board finds that he failed to provide a rationalized opinion
explaining how the September 21, 2009 motor vehicle accident caused a traumatic brain injury
or aggravated appellant’s bipolar disorder. Dr. Granacher noted that her condition occurred
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

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while she was driving to work, but such generalized statements do not establish causal
relationship because they merely repeat her allegations and are unsupported by adequate medical
rationale explaining how her physical activity at work actually caused or aggravated the
diagnosed conditions.8 He failed to provide an opinion adequately addressing how the
September 21, 2009 incident contributed to appellant’s traumatic brain injury and preexisting
bipolar condition. Thus, the Board finds that the reports from Dr. Granacher are insufficient to
establish that she sustained an employment-related injury.
In his reports, Dr. Greenlee indicated that appellant had a prior diagnosis of bipolar
and panic disorder and diagnosed unspecified episodic mood disorder, panic disorder without
agoraphobia, traumatic brain injury, and cholesterolemia. He opined that she had no medical
condition complicating her psychiatric condition or treatment prior to the mild traumatic brain
injury on September 21, 2009, which aggravated her episodic mood disorder and resulted in
significant cognitive difficulties including impairment of attention and executive functioning.
The Board finds that Dr. Greenlee did not provide sufficient medical rationale explaining how
appellant’s conditions were caused or aggravated by hitting her head on a steering wheel on
September 21, 2009. Therefore, the Board finds that the reports from Dr. Greenlee are
insufficient to establish her claim.
The reports from Ms. Pile, a physician’s assistant, and Ms. Granacher, a licensed clinical
social worker do not constitute competent medical evidence as they do not contain rationale by a
physician relating appellant’s disability to her employment.9 As such, the Board finds that
appellant did not meet her burden of proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained a traumatic brain injury and an aggravation of her preexisting
bipolar condition causally related to the September 21, 2009 employment incident, she has failed
to meet her burden of proof to establish a claim for compensation.
On appeal, counsel contends that OWCP failed to recognize that appellant met her burden
of proof by submitting probative, well-reasoned, and rationalized medical opinion evidence to
support her claim for compensation, wrongfully disregarded the medical evidence submitted, and
failed to further develop the medical evidence in processing and evaluating her claim. For the
reasons stated above, the Board finds that counsel’s arguments are not substantiated.
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.

8

See K.W., Docket No. 10-98 (issued September 10, 2010).

9

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
brain injury and an aggravation of her preexisting bipolar condition causally related to a
September 21, 2009 employment incident as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2015
Washington, DC

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

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

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

7


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

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

Docket No. 09-915
Issued: December 1, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated June 24, 2008 and January 6, 2009 that denied her
claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was entitled
to wage-loss compensation for four hours a day beginning November 30, 2007 and continuing.
On appeal, her attorney asserts that the Office decisions are contrary to fact and law.
FACTUAL HISTORY
On June 9, 2003 appellant, then a 41-year-old flat sorter operator, filed a Form CA-2,
occupational disease claim, alleging that work duties caused cervical spondylosis and bone spurs
in the cervical spine. She stopped work on May 8, 2003 and on July 30, 2003 the Office

accepted the conditions of aggravation of spinal stenosis and disc herniation at C5-7.1 On
September 29, 2004 Dr. Amongero performed an anterior cervical discectomy at C5-6 and C6-7.
By report dated August 4, 2005, he advised that appellant could return to work on July 20, 2005
with no restrictions. On September 1, 2005 the Office proposed to terminate appellant’s wageloss compensation, based on Dr. Amongero’s report, and on October 6, 2005, he advised that
appellant was unable to work. It referred appellant to Dr. E. Gregory Fisher, for a second
opinion evaluation, and in an October 31, 2005 report, he advised that appellant could return to
work eight hours daily with restrictions. On December 14, 2005 appellant filed an occupational
disease claim for degenerative disc disease of the lumbar spine.
In April 2006, the Office determined that a conflict existed between Drs. Amongero and
Fisher regarding appellant’s ability to work when both the cervical and lumbar spine were
considered, and referred her to Dr. Roger V. Meyer, for an impartial evaluation. In reports dated
May 1 and 8, 2006, Dr. Meyer advised that appellant could return to work for eight hours a day
with physical restrictions. On June 22, 2006 the Office accepted the condition of aggravation of
lumbar facet arthritis and degenerative disc disease. By report dated December 12, 2006,
Dr. Jeffrey R. McCutchen, an osteopath, advised that appellant could return to work on
December 18, 2006, for four hours daily for the first two weeks and then work up to full time.
Appellant returned to modified duty for four hours per day on December 21, 2006 and
received compensation for four hours per day. In a duty status report dated March 5, 2007,
Dr. McCutchen advised that she could work one to four hours a day with restrictions to her
physical activity. On March 21, 2007 she began working eight hours per day. By decision dated
May 22, 2007, the Office determined that appellant’s full-time modified position fairly and
reasonably represented her wage-earning capacity and reduced her compensation to zero.2 In a
report dated May 24, 2007, Dr. Amongero advised that appellant’s job caused neck pain and that
she also had low back symptoms. He opined that appellant should find another line of work
because she would never be satisfied with “either her job or where she [i]s at.” Dr. Amongero
stated that he followed the same restrictions previously provided by her family physician and
submitted a duty status report similar to that provided by Dr. McCutchen, advising that appellant
could work one to four hours daily. On June 6, 2007 the employing establishment sent appellant
home after four hours of work each day.3
On June 12, 2007 appellant submitted a Form CA-2a, recurrence of disability claim, that
was accepted by the Office on July 9, 2007. On July 12, 2007 the employing establishment
offered appellant a full-time modified clerk position. On July 21, 2007 appellant stated “under
protest not accepting nor rejecting at this time.” By letter dated August 28, 2007, the Office
advised appellant that the position offered was suitable. Appellant was notified that, if she failed
1

In April 2004, the Office determined that a conflict in medical evidence had been created between the opinions
of appellant’s attending physician, Dr. Marcus Amongero and Dr. Ronald J. Moser, who performed a second
opinion evaluation for the Office, regarding her ability to work. It referred appellant to Dr. James H. Rutherford,
who advised on May 10, 2004 that appellant remained temporarily totally disabled.
2

The Board notes that the cover letter of the decision is dated March 8, 2007. The decision itself, however, is
clearly dated May 22, 2007.
3

The record indicates that appellant was sent home, based on the reports of her treating physicians.

2

to report to work or failed to demonstrate that the failure was justified, pursuant to section 8106
of the Federal Employees’ Compensation Act,4 her right to compensation for wage loss or a
schedule award would be terminated. She was given 30 days to respond.
In correspondence dated September 6, 2007, the Office of the Inspector General of the
employing establishment noted that an investigation of appellant had been undertaken regarding
possible fraudulent representation of her ability to work. The investigative report indicated that
both Dr. McCutcheon and Dr. Amongero had been interviewed and that each stated that
appellant would bring completed medical forms to be signed. Both physicians advised that
appellant could work eight hours a day. Dr. McCutcheon gave the inspectors a letter prepared by
appellant, in her handwriting, that she had given him as a sample of the information he should
provide the Office regarding her medical condition. Appellant continued to work four hours
daily and receive wage-loss compensation for four hours a day. On September 28, 2007 she was
placed on administrative leave pending removal.
By letter dated October 9, 2007, the Office informed appellant that the fact that she was
on administrative leave did not preclude her from accepting suitable work. Appellant was given
an additional 15 days to respond. In a letter dated October 20, 2007, her attorney informed the
Office that appellant had accepted the offered position and submitted an employing
establishment form showing that she accepted the offered position on October 10, 2007.
Appellant was terminated by the employing establishment effective November 30, 2007 for
misrepresentation of her medical restrictions.
In December 2007, the Office referred appellant to Dr. Rudolf A. Hofmann, for a second
opinion evaluation. In reports dated January 10 and 11, 2008, Dr. Hofmann noted his review of
the medical records and statement of accepted facts, including descriptions of the duties of
appellant’s regular position as a flat sorter operator and her modified clerk duties. He reported
appellant’s complaints of radiating neck and low back pain and provided findings on physical
examination. Examination of the cervical spine demonstrated no evidence of a neurologic deficit
consistent with an objective cervical radiculopathy or compression mononeuropathy of either of
the upper extremities and revealed that appellant continued to have mechanical neck pain and
limited active range of motion of the cervical spine. Regarding the lumbar spine, Dr. Hofmann
noted painfully limited range of motion and magnetic resonance imaging scan findings consistent
with age of multilevel disc degeneration but no evidence of neurocompressive pathology. He
advised that appellant continued to have residuals of her accepted conditions and that, while she
could not perform the duties of flat sorter machine operator, she could perform the duties of the
modified clerk position for eight hours a day. By report dated March 25, 2008, Dr. Amongero
advised that, after his review of Dr. Hofmann’s report, he agreed that appellant could perform the
duties of a modified clerk.
By decision dated June 24, 2008, the Office found that appellant was not entitled to
wage-loss compensation for the period November 30, 2007 and continuing because the evidence
established that she was physically capable of performing modified work as provided by the
employing establishment until she was dismissed for cause. Appellant remained entitled to
4

5 U.S.C. §§ 8101-8193.

3

medical benefits. On June 26, 2008 appellant’s attorney requested a telephonic hearing, that was
held on October 15, 2008. At the hearing, appellant testified that her removal was in the
grievance process and was going to arbitration. She stated that she could work four hours a day
but had problems with working eight hours daily. Appellant’s attorney argued that until a final
adjudication had been made as to whether she was terminated for cause, the issue of continuing
disability should be held in abeyance.5 On October 24, 2008 appellant filed a schedule award
claim. In a January 6, 2009 decision, an Office hearing representative affirmed the June 24,
2008 decision.6
LEGAL PRECEDENT
Under the Act,7 the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.8 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in the Act,9 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.10 Whether a particular injury causes an employee to be disabled
for work and the duration of that disability, are medical issues that must be proven by a
preponderance of the reliable, probative and substantial medical evidence.11
Compensation for wage loss due to disability is available only for periods during which
an employee’s work-related medical condition prevents him or her from earning the wages
earned before the work-related injury,12 and whether a particular injury caused an employee
disability from employment is a medical issue, which must be resolved by competent medical
evidence.13 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their

5

On October 24, 2008 appellant filed a schedule award claim and by letter dated November 20, 2008, the Office
informed her of the type evidence needed in support. The record before the Board does not contain a final schedule
award decision.
6

All physicians above are Board-certified in orthopedic surgery with the exception of Dr. McCutchen who is a
Board-certified osteopath specializing in emergency medicine.
7

5 U.S.C. §§ 8101-8193.

8

See Prince E. Wallace, 52 ECAB 357 (2001).

9

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

10

Donald E. Ewals, 51 ECAB 428 (2000).

11

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

12

W.P., 59 ECAB ____ (Docket No. 08-202, issued May 8, 2008).

13

Carol A. Lyles, 57 ECAB 265 (2005).

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disability and entitlement to compensation.14 Furthermore, it is well established that medical
conclusions unsupported by rationale are of diminished probative value.15
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.16 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.17 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.18
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous. The burden of proof is on the
party attempting to show modification of the wage-earning capacity determination.19 The Office
is not precluded from adjudicating a limited period of employment-related disability when a
formal wage-earning capacity determination has been issued.20
ANALYSIS
The Board finds that appellant did not establish that she was entitled to wage-loss
compensation beginning November 30, 2007 and continuing. When a claimant stops working at
the employing establishment for reasons unrelated to an employment-related physical condition,
he or she has no disability within the meaning of the Act.21 Section 10.5(x) of the Office’s
regulations provides that there is no recurrence of disability when withdrawal of light duty
occurs for reasons of misconduct, nonperformance of job duties or reduction-in-force.22 The
facts in this case indicate that appellant stopped work on September 28, 2007 when she was
14

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

15

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

16

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

17

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

18

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

19

P.C., 58 ECAB ___ (Docket No. 06-1954, issued March 6, 2007).

20

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

21

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

22

20 C.F.R. § 10.5(x).

5

placed on administrative leave by the employing establishment pending removal. Appellant was
terminated for cause effective November 30, 2007. Thus, the record supports that her inability to
earn wages was not due to a worsening of her accepted conditions such that she was unable to
perform the duties of her modified position. Furthermore, there is no probative medical evidence
demonstrating either total or partial disability beginning November 30, 2007.23 Dr. Hofmann, in
his January 10 and 11, 2008 reports, clearly advised that appellant could perform the duties of
the modified position and appellant’s attending orthopedist, Dr. Amongero, agreed that appellant
could perform the modified clerk position. Accordingly, the Office properly denied appellant’s
claim for wage-loss compensation.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for four hours a day beginning November 30, 2007 and
continuing.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2009 and June 24, 2008 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: December 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

23

The Board notes that while both Dr. Amongero and Dr. McCutchen had limited appellant to one to four hours
of limited duty a day in their March 5 and May 24, 2007 reports, the probative value of these reports was called into
question by the subsequent investigation by the employing establishment.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, Ogden, UT, Employer
__________________________________________

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

Docket No. 15-0529
Issued: July 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 8, 2015 appellant filed a timely appeal from a July 23, 2014 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established a ratable binaural hearing loss entitling him to
a schedule award.
FACTUAL HISTORY
On October 1, 2012 appellant, then a 53-year-old retired electroplater and shot peen
machine operator, filed an occupational disease claim alleging that, on January 11, 2000, he first

1

5 U.S.C. § 8101 et seq.

became aware of his hearing loss and tinnitus and realized that his conditions were caused by
extreme noise at work.
Appellant submitted employment records which included a notification of personnel
action (SF 50-B) indicating that he had voluntarily retired from the employing establishment
effective April 30, 2012.
By letter dated October 15, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested factual and medical evidence. OWCP also
requested that the employing establishment respond to appellant’s allegations and provide a copy
of all medical examinations pertaining to his hearing or ear problems, including any
preemployment examinations and audiograms.
In an undated narrative statement, appellant related that his hearing loss began in
December 1981 when he started work at the employing establishment. He described his work
duties and noise exposure as a shot peen operator from December 1981 to October 2003 and as
an electroplater from October 2003 to April 2012. Appellant was exposed to noise eight to nine
hours a day, four to seven days a week and during over-time work. He wore hearing protection
at all times. Appellant noticed ringing in his ears within a year of his employment and suspected
hearing loss was inevitable due to his exposures. His last day of noise exposure was
April 30, 2012. Appellant had no exposure to hazardous noise prior to his civil service
employment.
Appellant submitted audiograms performed by the employing establishment as part of a
hearing conservation program dated August 8, 2006 through April 23, 2012.
In an October 31, 2012 letter, the employing establishment controverted appellant’s claim
based on the medical opinion of Dr. Deepa Hariprasad, an employing establishment audiologist.
Dr. Hariprasad advised that any hearing loss sustained by appellant was not work related based
on appellant’s statement that he wore hearing protection at all times at work.
By letter dated February 19, 2013, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Robert L. Moesinger, a Board-certified
otolaryngologist, and Dr. Kerry Braunberger, an audiologist, to determine whether he had any
permanent impairment due to his federal employment, entitling him to a schedule award.
In a March 5, 2013 medical report, Dr. Moesinger set forth normal findings on
examination and diagnosed bilateral essentially symmetrical high tone neurosensory hearing loss
due to noise exposure in appellant’s federal employment. He recommended a hearing aid
evaluation with aids for high frequency loss.
Also, on March 5, 2013 Dr. Braunberger performed an audiometric test. Testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 hertz (Hz) revealed decibel losses of the right
ear as 15, 15, 10, and 20, respectively. Testing at the same frequency levels noted above
revealed decibel losses of 10, 10, 10, and 30, respectively, regarding the left ear.
On March 22, 2013 an OWCP medical adviser reviewed Dr. Moesinger’s report and
Dr. Braunberger’s audiometric test results. He agreed that appellant’s binaural sensorineural
2

hearing loss was due to occupational noise exposure. The medical adviser applied the
audiometric data to OWCP’s standard for evaluating hearing loss under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) and following the same analysis determined that appellant had no ratable impairment.2
He advised that the date of maximum medical improvement was March 5, 2013, the date of
Dr. Moesinger’s examination. The medical adviser recommended authorization for hearing aids
for both ears. An examination by a specialist was not recommended.
In a March 26, 2013 decision, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss. In an April 8, 2013 decision, it, however, determined that his hearing
loss was not severe enough to be considered ratable under the sixth edition of the A.M.A.,
Guides. OWCP did authorize additional medical benefits.
By letter dated October 3, 2013, appellant, through counsel, requested reconsideration of
the April 8, 2013 decision. Counsel contended that the list of accepted conditions did not include
tinnitus. He further contended that accompanying employing establishment audiograms revealed
that appellant’s hearing ability declined gradually, but steadily. Counsel was concerned that the
March 5, 2013 evaluation did not focus on assessing ratability and was not correct as the skew
lines drawn on the hearing test to determine the amount of hearing loss were crooked and
resulted in an inaccurate rating. The results clearly indicated loud noise exposure hearing loss
and that, high tone receptors were clearly damaged, resulting in a lack of discrimination of
speech. Counsel contended that others who worked in the same environment as appellant for
many years had similar hearing loss and were deemed eligible for a schedule award and received
compensation.
Appellant resubmitted the employing establishment audiograms dated August 8, 2006 to
April 23, 2012. He submitted employing establishment audiograms performed on December 11,
1989 and January 11, 2000 and treatment notes prepared on August 8 and 15, 2006 by the
employing establishment which addressed test results and his hearing loss.
In a December 4, 2013 decision, OWCP denied appellant’s request for reconsideration
without a merit review of the claim. It found that he did not submit pertinent new and relevant
evidence and did not show that OWCP erroneously applied or interpreted a point of law not
previously considered by OWCP.
By letter dated February 20, 2014, counsel, on behalf of appellant, requested
reconsideration. He contended that accompanying medical evidence established that acceptance
of appellant’s claim should be expanded to include tinnitus and that he was entitled to a schedule
award for this condition.
An audiogram performed by Dr. Suzanne C. Short, an audiologist, on February 4, 2014
provided that testing at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel
losses of the right ear as 10, 10, 25, and 25, respectively. Testing at the same frequency levels
noted above revealed decibel losses as 15, 15, 20, and 40, respectively, regarding the left ear.
Dr. Short noted that appellant had a history of noise exposure and wore hearing protection at
2

A.M.A., Guides 250, Table 11-1.

3

work. She advised that he had hearing loss and tinnitus. Appellant had mild to moderate high
frequency sensorineural hearing loss in the right ear and moderate high frequency sensorineural
hearing loss in the left ear. Dr. Short determined that he had zero percent hearing loss under the
sixth edition of the A.M.A., Guides.
In a February 4, 2014 report, Dr. Michael C. Scheuller, a Board-certified
otolaryngologist, listed findings on examination and assessed high frequency sensorineural
hearing loss with tinnitus. He noted Dr. Short’s zero percent impairment rating under the
A.M.A., Guides. Dr. Scheuller determined that appellant had five percent impairment for
tinnitus.
By letter dated May 16, 2014, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Stewart E. Barlow, a Board-certified
otolaryngologist, and Dr. Robert L. Eppens, an audiologist, to determine whether appellant had
any permanent impairment due to his federal employment, entitling him to a schedule award.
In a June 6, 2014 report, Dr. Barlow listed examination findings and diagnosed bilateral
sensorineural hearing loss and bilateral tinnitus due to noise exposure in appellant’s federal
employment. He described how tinnitus affected appellant’s quality of life. Dr. Barlow
recommended hearing aids and protection.
Dr. Eppens performed an audiometric test on the same day as Dr. Barlow’s examination.
Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of the
right ear as 15, 15, 20, and 30, respectively. Testing at the same frequency levels noted above
revealed decibel losses of 15, 15, 20, and 45, respectively, regarding the left ear.
On July 10, 2014 the prior OWCP medical adviser reviewed Dr. Barlow’s report and
Dr. Eppens’ audiometric test results. He reiterated that appellant had binaural sensorineural
hearing loss due to occupational noise exposure. The medical adviser applied the audiometric
data to OWCP’s standard for evaluating hearing loss under the sixth edition of the A.M.A.,
Guides and determined that appellant had no ratable hearing impairment for either ear. Decibel
losses for the right ear were totaled at 100 and divided by 4, to obtain the average hearing loss
per cycle of 25 decibels. The average of 25 decibels was then reduced by the 25 decibels (the
first 25 decibels were discounted as discussed above) to equal 0 decibels, which was multiplied
by the established factor of 1.5 to compute a zero percent monaural hearing loss for the right ear.
Decibel losses for the left ear were totaled at 80 and divided by 4, to obtain the average hearing
loss per cycle of 20 decibels. The average of 20 decibels was then reduced by the 25 decibels
(25 decibels being discounted as discussed above), which was multiplied by 1.5 to compute
a -7.5 monaural loss for the left ear. No percentage was added for tinnitus. The medical adviser
noted that tinnitus was ratable in cases where there was impairment from hearing loss in one or
more ears. He concluded that appellant had no ratable hearing loss in either ear and, therefore, a
tinnitus rating did not apply. The medical adviser determined that the date of maximum medical
improvement was June 6, 2014, the date of Dr. Barlow’s examination. He recommended
authorization for hearing aids for both ears. An examination by a specialist was not
recommended.

4

In a July 23, 2014 decision, OWCP accepted appellant’s claim for tinnitus. In a separate
decision dated July 23, 2014, it denied modification of its decision denying his schedule award
claim.
LEGAL PRECEDENT
The schedule award provision of FECA3 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice under the law, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The implementing regulations have adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.4 Effective May 1, 2009, schedule awards are determined
in accordance with the sixth edition of the A.M.A., Guides.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 dBs is deducted
because, as the A.M.A., Guides points out, losses below 25 dBs result in no impairment in the
ability to hear everyday speech under everyday conditions.6 The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.7
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury.8 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living (ADL), including sleep, reading (and other tasks

3

Supra note 1.

4

20 C.F.R. § 10.404.

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
6

See A.M.A., Guides 250.

7

J.H., Docket No. 08-2432 (issued June 15, 2009); E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52
ECAB 462 (2001).
8

See A.M.A., Guides 249.

5

requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.9
ANALYSIS
The Board finds that the evidence of record does not establish that appellant has a ratable
hearing loss arising from his accepted binaural sensorineural hearing loss and tinnitus.
In order to determine the extent of any employment-related hearing impairment, OWCP
referred appellant to Dr. Barlow for an otologic evaluation and Dr. Eppens for audiometric
testing. Dr. Barlow concluded that appellant had employment-related bilateral sensorineural
hearing loss and employment-related tinnitus. An OWCP medical adviser reviewed a June 6,
2014 audiogram performed by Dr. Eppens and reviewed by Dr. Barlow that day. Testing at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed decibel losses of the right ear as 15,
15, 20, and 30, respectively. These decibel losses were totaled 100 and were divided by 4 to
obtain an average hearing loss of 25 decibels. This average was then reduced by the 25 decibels
(the first 25 decibels were discounted as discussed in Legal Precedent) to equal 0 decibels. The
resulting loss of 0 was multiplied by the established factor of 1.5 and yielded a zero percent
monaural hearing loss for the right ear.
Testing of the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed
decibel losses of 15, 15, 20, and 45, respectively. These decibel losses were totaled at 80
decibels and divided by 4 to obtain an average hearing loss of 20 decibels. This average was
then reduced by 25 decibels (25 decibels being discounted as discussed above) to equal -5, which
was multiplied by the established factor of 1.5 to compute a -7.5 percent hearing loss in the left
ear. A negative number equates to zero. The Board finds that an OWCP medical adviser
properly calculated appellant’s hearing loss to be nonratable for both the right and left ears.
Thus, although an employment-related bilateral hearing loss exist, it is not large enough to be
ratable.10
The Board further finds that an OWCP medical adviser properly determined that
appellant was not entitled to a schedule award for tinnitus. FECA does not list tinnitus in the
schedule of eligible members, organs, or functions of the body. Therefore, no claimant may
receive a schedule award exclusively for tinnitus. Hearing loss is a covered function of the body
and if tinnitus contributes to an existing ratable loss of hearing, a claimant’s schedule award may
reflect that contribution. The A.M.A., Guides provide that, if tinnitus interferes with appellant’s
ADL, up to five percent may be added to a ratable binaural hearing impairment.11 The Board has
held that there is no basis for paying a schedule award for tinnitus unless the evidence establishes
that the condition caused or contributed to a ratable hearing loss.12 Because there is no ratable
hearing loss in this case, there can be no schedule award for tinnitus.
9

Id. See also Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011).

10

See H.S., Docket No. 07-772 (issued July 12, 2007).

11

See supra note 9.

12

See Richard Larry Enders, 48 ECAB 184 (1996).

6

Dr. Scheuller’s February 4, 2014 report noted Dr. Short’s audiogram performed on that
day which also found that appellant had no ratable binaural hearing loss. Dr. Scheuller,
however, awarded appellant five percent impairment for tinnitus. This was incorrect because
appellant did not sustain a ratable hearing loss and he cannot receive a schedule award
exclusively for tinnitus.
The employing establishment audiograms dated December 11, 1989 to April 23, 2012
have no probative value as they were not reviewed or certified as accurate by a physician.13
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he has a ratable binaural
hearing loss entitling him to a schedule award.

13

T.B., Docket No. 09-1504 (issued April 12, 2010). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(medical opinion, in general, can only be given by a qualified physician); 5 U.S.C. § 8101(2). See also Robert E.
Cullison, supra note 9 (does not have to review every uncertified audiogram, which has not been prepared in
connection with an examination by a medical specialist). See also James A. England, 47 ECAB 115 (1995) (finding
that an audiogram not certified by a physician as being accurate has no probative value; need not review uncertified
audiograms). See also Joshua A. Holmes, 42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist,
it must be certified by a physician as being accurate before it can be used to determine the percentage of hearing
loss).

7

ORDER
IT IS HEREBY ORDERED THAT the July 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2015
Washington, DC

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

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

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

8


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

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

Docket No. 09-2163
Issued: August 2, 2010

Case Submitted on the Record

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

JURISDICTION
On August 22, 2009 appellant filed a timely appeal from the August 5, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On January 16, 2009 appellant, then a 38-year-old mail carrier, filed a claim alleging that
she sustained an emotional condition in the performance of duty due to various incidents and
conditions at work beginning in May 2007. She stopped work on January 2, 2009 and did not
return.

Appellant alleged that she was unhappy following the move from Detroit, MI to
Huntsville and that her daughter was also unhappy and returned to live in Detroit. She was
dissatisfied with her job in Huntsville and desired to return to Detroit. Appellant claimed that
Tonya Horne, a supervisor, unfairly questioned her about the light being out in her mail case and
threatened her with insubordination regarding the matter. On December 4, 2008 she requested
that a supervisor provide a written statement regarding why certain actions were taken, but that
she did not receive a written response. Appellant filed three grievances against the employing
establishment management regarding various matters and asserted that she was the subject of an
improper investigation by postal inspectors regarding her route maintenance in October 2008.
She claimed that her supervisors, including Ms. Horne, were against her, did not allow her to do
her job and unfairly criticized her job performance. On April 16, 2008 appellant was degraded
on the workroom floor by Shelly Ary, a supervisor, regarding taking time off for a medical
appointment. On other occasions Ms. Ary allegedly violated her rights under the union contract
and falsely accused her of improperly completing work forms. Appellant claimed that on
January 2, 2009 the station manager verbally abused her regarding the manner in which she
performed her work. She also claimed that Ms. Horne violated her privacy with respect to
medical matters and that management did not respond to her claims of unsafe working
conditions. Appellant asserted that she was improperly accused of falsifying time records and
that she was bullied by several coworkers.
In a March 9, 2009 statement, Ms. Horne advised that she never raised her voice to
appellant or acted in an unprofessional manner. She denied appellant’s claims of harassment and
abuse. Ms. Horne stated that whenever appellant did not like what was happening at work she
would clock out and go home. In a February 5, 2009 letter, the employing establishment
controverted appellant’s claim.
In a January 9, 2009 report, a psychiatrist with an illegible signature stated that appellant
was being treated for anxiety and depression stemming from a job change and relocation. In a
March 15, 2009 report, Dr. Debra Williams, an attending osteopath, noted that appellant was
being treated for adjustment disorder with depressed mood. Dr. Williams first examined
appellant on May 8, 2007 and discussed the factors that she believed caused her condition.
Dr. Williams advised that appellant reported that she sustained stress in her home life after
moving from Detroit to Huntsville. She also reported being harassed by supervisors at work.
In a May 4, 2009 decision, the Office denied appellant’s emotional condition claim on the
grounds that she did not establish a compensable employment factor. It found that appellant’s
allegations related to administrative matters, but she did not show that management committed
error or abuse with regard to the actions taken. The Office found that she did not establish
harassment.
Appellant requested a review of the written record by an Office hearing representative.
She submitted additional documents in support of her claim, including records regarding
complaints she had filed. Appellant filed a complaint against her union alleging it had failed to
provide her with adequate representation, had not acted in good faith and had retaliated against
her for filing prior labor charges. She made a complaint to the Occupational Safety and Health
Administration concerning unsafe working conditions. Appellant also submitted statements
from three coworkers, dated in May 2009, concerning their experiences with certain managers.

2

The coworkers indicated that they had bad experiences with supervisors, including Ms. Ary.
None of the witnesses described witnessing any of appellant’s alleged incidents. Appellant also
submitted a statement from her daughter who indicated that she enjoyed living in Huntsville.
She submitted medical evidence and additional statements in which she further described her
claimed employment factors.
In an August 5, 2009 decision, the Office hearing representative affirmed the May 4,
2009 decision. She found that the evidence submitted by appellant did not establish a
compensable employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.3 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.4
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.5 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

1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon, 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
3

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

4

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

5

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

3

record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that she did not establish any compensable employment factors. The Board must,
thus, initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act. The Board notes that appellant’s allegations do
not pertain to her regular or specially assigned duties under Cutler. Rather, she has alleged error
or abuse on the part of her managers.
Appellant alleged that harassment on the part of her supervisors and coworkers
contributed to her claimed stress-related condition. She claimed that Mr. Horne, a supervisor,
unfairly questioned her about the light being out in her mail case and threatening her with
insubordination regarding the matter. Appellant asserted that her supervisors, including
Ms. Horne, were against her, did not allow her to do her job and unfairly criticized her job
performance. On April 16, 2008 she was degraded on the workroom floor by Ms. Ary, another
supervisor, regarding her taking time off for a medical appointment. Ms. Ary violated her rights
under the union contract and falsely accused her of improperly completing work forms.
Appellant claimed that on January 2, 2009 the station manager verbally attacked her regarding
the manner in which she performed her work. She also asserted that coworkers bullied her on a
regular basis.
To the extent that disputes and incidents alleged as constituting harassment by
supervisors and coworkers are established as occurring and arising from appellant’s performance
of her regular duties, these could constitute employment factors.7 However, for harassment to
give rise to a compensable disability under the Act, there must be evidence that harassment did
in fact occur. Mere perceptions of harassment are not compensable under the Act.8 In this case,
Ms. Horne denied that appellant was subjected to harassment and appellant did not submit
sufficient evidence to establish her allegations.9 The statements from appellant’s coworkers
pertain to their own interactions with certain managers. They do not provide support for the
specific allegations made by appellant.10 The three coworkers addressed only their personal
experiences with management. None of the coworkers described any actions they witnessed
concerning appellant. Therefore, she has not established a compensable employment factor
under the Act with respect to the claimed harassment.
6

Id.

7

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

8

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

9

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
10

See William P. George, 43 ECAB 1159, 1167 (1992).

4

Appellant alleged that she was the subject of an improper investigation by postal
inspectors regarding her route maintenance in October 2008. She claimed that on December 4,
2008 she requested that a supervisor provide a written statement regarding why certain actions
were taken, but that she did not receive such a written statement. Appellant also claimed that
Ms. Horne violated her privacy rights with respect to medical matters and that management did
not respond to her claims of unsafe working conditions. She also asserted that she was
improperly accused of falsifying time records.
Regarding appellant’s allegations that the employing establishment improperly handled
investigations, engaged in unfair criticism of work performance, mishandled safety and privacy
matters, failed to make clarifications about work subjects and improperly monitored activities at
work, the Board finds that these allegations relate to administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties and do not fall within the
coverage of the Act.11 Although such matters are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.12 The Board has held
that an administrative or personnel matter will be considered an employment factor where the
evidence discloses error or abuse on the part of the employing establishment. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.13 Appellant did not submit sufficient evidence to
establish that her managers committed error or abuse with respect to these matters. She filed
several grievances and complaints regarding some of these matters, but the record does not
contain any final decision issued in connection with these grievances or complaints. Appellant
has not established a compensable employment factor under the Act with respect to the alleged
administrative matters.
Appellant alleged that she became unhappy following her move from Detroit, MI to
Huntsville. She stated that she was dissatisfied with her job in Huntsville and desired to return to
Detroit. This is a personal matter unrelated to appellant’s regular and specially assigned work
duties and does not constitute a compensable employment factor. The Board has held that an
employee’s dissatisfaction with a given work setting constitutes frustration from not being
permitted to work in a particular environment or to hold a particular position and is not
compensable under the Act.14
Appellant has not established a compensable employment factor under the Act. She has
not met her burden of proof to establish that she sustained an emotional condition in the
performance of duty.15 The Office properly denied her claim.
11

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
12

Id.

13

See Richard J. Dube, 42 ECAB 916, 920 (1991).

14

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

15

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).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employee’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Richmond, VA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0230
Issued: August 21, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
On November 9, 2018 appellant filed a timely appeal from a June 27, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-0230.
On December 4, 2015 appellant, then a 54-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral wrist condition due to factors of
his federal employment including processing bundles of magazines with a manual cutter. By
decision dated February18, 2016, OWCP denied his claim as it found that he had not met his
burden of proof to establish the medical element of fact of injury. By decision dated October 6,
2016, it denied modification finding that appellant had not submitted medical evidence containing
a diagnosis related to the accepted employment factors. OWCP, by decision dated May 16, 2017,
granted modification finding that he had established a medical diagnosis, but again denied that
claim finding that he had not met his burden of proof to establish causal relationship.
On May 21, 2018 appellant requested reconsideration of the May 16, 2017 decision. By
decision dated June 27, 2018, it denied reconsideration pursuant to 5 U.S.C. § 8128(a).
Section 10.607(a) of the implementing regulations provides that an application for
reconsideration must be received within one year of OWCP’s last merit decision for which review
is sought.1 Timeliness is determined by the document receipt date of the request for
1

20 C.F.R. § 10.607(a).

reconsideration as indicated by the received date in the integrated Federal Employees’
Compensation System (iFECS).2 In this case, appellant sought review of the May 16, 2017
decision, but his request for reconsideration was not received into iFECS until May 21, 2018.
Thus, his request for reconsideration was received after the expiration of the one-year time
limitation from OWCP’s last merit decision.
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of its most recent decision. The application must establish, on its
face, that the decision was erroneous.3
The Board has duly considered the matter and finds that appellant’s request for
reconsideration was untimely filed. Because appellant filed an untimely reconsideration request,
the case will be remanded to OWCP for application of the correct standard of review which is
applied to untimely reconsideration requests, the clear evidence of error standard.4 The standard
utilized by OWCP in its June 27, 2018 decision is appropriate only for timely reconsideration
requests. After such further development as OWCP deems necessary, it shall issue an appropriate
decision. Accordingly,
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

3

Id. at § 10.607. See also C.B., Docket No. 17-0933 (issued July 17, 2017); A.B., Docket No. 15-0521 (issued
June 13, 2016).
4

Id. at § 10.606(b).

2

Issued: August 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
BUREAU OF ALCOHOL, TOBACCO &
FIREARMS, Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-805
Issued: October 26, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On February 11, 2011 appellant filed an application for review of a November 10, 2010
decision of the Office of Workers’ Compensation Programs (OWCP) in which an OWCP
hearing representative affirmed an April 9, 2010 schedule award decision. The appeal was
docketed as No. 11-805.1
The Board has duly considered the matter and concludes that this case is not in posture
for decision. Appellant was granted a schedule award on April 9, 2010 for a three percent
impairment of the left lower extremity. That decision was affirmed by an OWCP hearing

1

On January 17, 2006 appellant, then a 41-year-old criminal investigator, injured his left knee while undergoing
physical training. The claim was accepted for left lateral meniscus tear. Appellant stopped work on March 1, 2006
and had arthroscopic repair on March 8, 2006. He received appropriate compensation and returned to limited duty
on July 24, 2006, and to regular duty on August 31, 2006. On January 23, 2007 appellant sustained a new injury to
his left knee, adjudicated under OWCP file number xxxxxx576, and accepted for aggravation of left knee meniscus
tear.

representative on November 10, 2010.2 On appeal appellant’s attorney states that appellant had a
second accepted left knee injury on January 23, 2007, adjudicated under OWCP file number
xxxxxx576, for which he filed a schedule award claim. He asserted that a conflict in medical
evidence has been created between the opinions of Dr. Nicholas Diamond, an attending
osteopath, and an OWCP medical adviser regarding the degree of appellant’s left leg
impairment, and that appellant was entitled to an increased impairment for preexisting knee
arthritis. Counsel contended that OWCP should have used the pay rate in effect on the later of
the two left leg injuries, January 23, 2007, in calculating appellant’s schedule award.
Regarding the degree of appellant’s left leg impairment, the record forwarded to the
Board, for OWCP file number xxxxxx101, includes a March 8, 2006 operative report in which
Dr. John D. Kelly, a Board-certified orthopedic surgeon, performed a partial meniscectomy. The
postoperative diagnosis was lateral meniscus tear with chondrosis patella. The record also
contains evidence regarding the January 23, 2007 left knee injury, accepted for aggravation of
left meniscus tear. This included an April 10, 2007 operative report when Dr. Kelly performed
arthroscopic repair. The postoperative diagnoses were left lateral meniscus tear and left lateral
compartment degenerative joint disease.
Following an August 24, 2010 hearing, appellant submitted a September 9, 2010 report in
which Dr. Nicholas Diamond, an osteopath, advised that under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides),3 in accordance with Table 16-3, Knee Regional Grid, appellant had a class 1 left knee
impairment due to primary knee joint arthritis, 9 percent, and a class 1 left knee impairment due
to patellofemoral arthritis, 5 percent, for total left leg impairment of 14 percent. On
November 10, 2010 an OWCP hearing representative affirmed the April 9, 2010 schedule award,
finding three percent impairment. He found Dr. Diamond’s report not rationalized, stating that
under the sixth edition of the A.M.A., Guides, in most cases only one diagnosis would be
appropriate, and that left knee arthritis had not been accepted as employment related.
It is well established that in determining entitlement to a schedule award, preexisting
impairment to the scheduled member is to be included.4 As noted above, the medical evidence
of record supports that appellant had preexisting knee arthritis, certainly before the April 2007
surgery on his left knee. Moreover, Dr. Diamond’s report was not reviewed by an OWCP
medical adviser. OWCP procedures provide that, after obtaining all necessary medical evidence,
2

Appellant submitted a July 29, 2008 report, revised on November 4, 2009, in which Dr. Steven M. Allon, an
attending orthopedic surgeon, advised that appellant had a three percent left leg impairment. Dr. Andrew A. Merola,
an OWCP medical adviser agreed that appellant had a three percent impairment, and by decision dated April 9,
2010, appellant was granted a schedule award for a three percent impairment of the left leg, for 8.64 weeks, to run
from July 29 to September 27, 2008, based on a weekly pay rate of $2,366.01, the effective rate of pay on
March 1, 2006. Appellant requested a hearing, that was held on August 24, 2010. At the hearing, appellant’s
attorney noted that OWCP accepted that appellant had a new left knee injury of January 23, 2007. He requested that
the two left leg claims be doubled, and stated that schedule award claims had been filed for both injuries. The
attorney also argued that the 2007 pay rate should have been used in calculating the schedule award. Appellant
testified regarding both left knee injuries.
3

A.M.A., Guides (6th ed. 2008).

4

Peter C. Belkind, 56 ECAB 580 (2005).

2

the file should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.5 If more than one method can be
used, the method that provides the higher rating should be adopted.6
Thus, the case must be remanded to OWCP to double the two left lower extremity
claims. OWCP should then compile an updated statement of accepted facts and forward all
relevant medical evidence contained in both OWCP files, including Dr. Diamond’s September 9,
2010 report, to an OWCP medical adviser for review and an opinion in accordance with the sixth
edition of the A.M.A., Guides as to whether appellant’s left knee arthritis is preexisting and for
an impairment rating of appellant’s left lower extremity.
7

Regarding the rate of pay issue, the schedule award granted on April 9, 2010 used the pay
rate in effect on March 1, 2006, the day appellant’s disability began for the January 2006
employment injury. Pay rate for compensation purposes is defined in section 8101(4) of FECA
as the monthly pay at the time of injury, the time disability begins or the time disability recurs, if
the recurrence is more than six months after returning to full-time work with the United States,
whichever is greater.8 A recurrent pay rate applies only if the work stoppage began more than
six months after a return to regular full-time employment.9 The compensation rate for schedule
awards is the same as compensation for wage loss.10 In this case, appellant returned to full duty
on August 31, 2006 following his January 17, 2006 employment injury. He sustained a new left
knee injury on January 23, 2007. While the record before the Board contains some evidence
regarding the January 2007 injury, it does not indicate when appellant stopped work following
this injury. It is therefore unclear if the proper pay rate was used to calculate appellant’s
schedule award. The Board had long held that rate of pay for schedule award purposes is the
highest rate that satisfies the terms of section 8104(4).11 The case must therefore also be
remanded on the pay rate issue for OWCP to examine both OWCP claim files to determine
whether a proper pay rate was used to calculate the April 4, 2010 schedule award, in light of the
January 2007 left knee injury.
On remand, OWCP should combine the files for appellant’s January 2006 and
January 2007 left lower extremity injuries and follow the instructions outlined above. After such
development deemed necessary, it should issue an appropriate merit decision on whether
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); see Tommy R. Martin, 56 ECAB 273 (2005).
6

James R. Hill, Sr., 57 ECAB 583 (2006).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c)(1) (February 2000) (provides that cases should be doubled when a new injury is reported for an employee
who previously filed an injury claim for a similar condition or the same part of the body).
8

5 U.S.C. § 8101(4); see M.B., Docket No. 09-176 (issued September 23, 2009).

9

C.M., Docket No. 08-1119 (issued May 13, 2009).

10

T.T., Docket No. 09-1907 (issued June 28, 2010).

11

R.S., 58 ECAB 362

3

appellant is entitled to an increased schedule award for his left lower extremity and whether the
correct pay rate was used for schedule award purposes.
IT IS HEREBY ORDERED THAT the case in this appeal, Docket No. 11-805, be
remanded to the Office of Workers’ Compensation Programs for further proceedings consistent
with this order of the Board.
Issued: October 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4