United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE NAVY, PUBLIC
WORKS DEPARTMENT, Meridian, MS,
Employer
__________________________________________

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

Docket No. 14-47
Issued: May 5, 2014

Case Submitted on the Record

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

JURISDICTION
On October 17, 2013 appellant filed a timely appeal of a September 16, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) denying an occupational disease claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a hearing loss in the
performance of duty causally related to factors of his federal employment.
On appeal appellant contends that he has established that his hearing loss is employment
related.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 17, 2013 appellant, then a 59-year-old facilities management specialist, alleged
that on June 15, 1999 he first realized that his hearing loss was caused by his employment. He
was last exposed to noise at work on March 29, 2013 and reported his condition to his employer
on April 1, 2013.
By letter dated May 15, 2013, OWCP informed appellant that the evidence of record was
insufficient to establish his claim. Appellant was advised as to the medical and factual evidence
to submit and given 30 days to provide this information.
In response to OWCP’s request, appellant submitted medical and factual evidence in
support of his claim including audiograms and hearing conservation data from the employing
establishment for the period 1985 through 2012.
The initial hearing conservation data from the employing establishment was an
audiogram dated July 22, 1985 recording a hearing loss of 10, 5, 5 and 10 in the right ear and 10,
10, 5 and 5 in the left ear for frequency levels recorded at 500, 1,000, 2,000 and 3,000 hertz (Hz)
respectively.
The most current hearing conservation data was a July 5, 2012 audiogram which recorded
a hearing loss of 20, 20, 40 and 35 in the right ear and 20, 25, 15 and 30 in the left ear for
frequency levels recorded at 500, 1,000, 2,000 and 3,000 Hz respectively.
In an August 10, 2012 report, Richard H. Blair, an audiologist, diagnosed bilateral
sensorineural hearing loss based on a July 5, 2012 audiogram. He stated that appellant’s hearing
loss was consistent with his occupational history and recreational exposure to noise.
On August 19, 2013 OWCP referred appellant for a second opinion evaluation with
Dr. John S. Keebler, a second opinion Board-certified otolaryngologist, for an evaluation
regarding his hearing loss. Accompanying the referral was a statement of accepted facts listing
appellant’s employment history. OWCP noted that he was employed as an H/V electrician and
facilities management specialist during which time he was exposed to electrical noise, noise from
jet aircraft landing and taking off for eight hours a day, five days a week.
In a September 3, 2013 report, Dr. Keebler diagnosed mild-to-moderate sensorineural
hearing loss. A September 3, 2013 audiogram recorded a hearing loss of 15, 30, 40 and 45 in the
right ear and 20, 25, 30 and 25 in the left ear for frequency levels recorded at 500, 1,000, 2,000
and 3,000 Hz respectively. Dr. Keebler opined that the hearing loss was not due to appellant’s
federal employment. He stated that appellant’s sensorineural hearing loss was not in excess of
what would normally be due to presbycusis. In support of this conclusion, Dr. Keebler stated
that there were minimal changes from the 1985 audiogram to the current 2012 audiogram.
By decision dated September 16, 2013, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to demonstrate a causal relationship between his hearing loss
condition and employment-related noise exposure.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.7 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.8
ANALYSIS
Appellant contends that his hearing loss is causally related to noise exposure in his
federal employment. The Board finds that he has not submitted medical evidence to establish
that his hearing loss was caused or aggravated by his federal employment.

2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
6

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
7

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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In support of his claim, appellant submitted audiograms for the period 1985 to 2012
obtained as part of the hearing conservation program at work. This evidence did not meet
OWCP’s criteria as the audiograms were not certified by a physician as being accurate.9
Appellant also submitted an August 10, 2012 report from Mr. Blair, an audiologist, who
diagnosed bilateral sensorineural hearing loss which he found was consistent with appellant’s
occupational history and recreational exposure to noise. The Board notes that audiologists are
not included among the healthcare professionals defined as a physician under FECA.10 Thus,
Mr. Blair’s opinion is of no probative medical value.11
Following the submission of evidence from appellant, OWCP referred appellant for an
evaluation by Dr. Keebler. However, while Dr. Keebler diagnosed a hearing loss, he opined that
it was not in excess of what would normally be due to presbycusis and not related to appellant’s
employment history of noise exposure. The report of Dr. Keebler, a specialist in the appropriate
specialty, constitutes the weight of medical opinion.12
Appellant has not satisfied the requirements to establish that his hearing loss is causally
related to his federal employment. He has failed to submit medical evidence to establish causal
relationship and, therefore, has failed to discharge his burden of proof to establish that he
sustained a condition due to factors of his federal employment.
On appeal, appellant contends that OWCP’s decision was not supported by the evidence
and noted his history of work exposure establishes that he sustained a work-related hearing loss.
As previously stated, however, the weight of the medical evidence failed to establish that his
hearing loss was causally related to his accepted employment-related noise exposure. The Board
finds, therefore, that appellant has not established that he has an employment-related hearing
loss.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

9

See Robert E. Cullison, 55 ECAB 570 (2004) (OWCP does not have to review every uncertified audiogram).

10

5 U.S.C. § 8102(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.
11

R.V., Docket No. 12-248 (issued June 6, 2012); Thomas O. Bouis, 57 ECAB 602 (2006).

12

See John D. Jackson, 55 ECAB 465 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16, 2013 is affirmed.
Issued: May 5, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1482
Issued: December 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 30, 2015 appellant, through counsel, filed a timely appeal from an April 21,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 67 percent permanent binaural hearing loss
for which he received a schedule award.
On appeal, appellant, through counsel, contends that he is entitled to a greater award as
he had submitted evidence of greater hearing loss and evidence of tinnitus. He contends that the
case should either be remanded for clarification of the percentage of hearing impairment or that
the Board should add five percent to the award for tinnitus.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 26, 2012 appellant, then a 63-year-old ship fitter, filed an occupational disease
claim (Form CA-2) alleging that he suffered from bilateral hearing loss as a result of noise at
work. He indicated that he first became aware of the condition and that it was causally related to
his work on January 1, 1990. Appellant retired on January 9, 2007.
On February 1, 2013 OWCP denied appellant’s claim as untimely filed. On February 21,
2013 appellant’s counsel requested reconsideration. By decision dated September 5, 2013,
OWCP found that appellant’s claim was timely filed, as the employing establishment had timely
notice of the alleged injury by his participation in the employing establishment’s hearing
conservation program. However, OWCP also found that the claim should be denied as no causal
relationship had been established between appellant’s hearing loss and his federal employment.
On April 29, 2014 appellant again requested reconsideration. In an April 16, 2014 report,
Dr. Casey Nekl, a Board-certified otolaryngologist, noted that appellant’s pure tone conduction
threshold testing revealed mild sloping to profound mixed hearing loss in the left ear and severe
to profound mixed hearing loss in the right ear. She noted that speech test results were in
agreement with pure tone findings and his tympanograms were consistent with fluid in his ears.
Dr. Nekl opined that based on appellant’s case history and test findings, it appeared that he had
hearing loss of a degree and pattern that is commonly associated with intense noise exposure,
such as what appellant suffered while on his job with the employing establishment. She also
noted that his case history was positive for tinnitus.
On November 10, 2014 OWCP accepted appellant’s claim for mixed hearing loss
bilateral and bilateral severe noise-induced hearing loss.
On March 10, 2015 appellant filed a claim for a schedule award.
OWCP referred appellant to Dr. Jeffrey Powell, a Board-certified otolaryngologist, for a
second opinion examination. In a report dated September 23, 2014, Dr. Powell diagnosed
chronic bilateral serous otitis media, mixed hearing loss bilateral, bilateral severe noise-induced
hearing loss, and secondary tinnitus. He related that appellant’s tinnitus was significant and
persistent bilaterally, described as a constant high-pitched ringing noise which interfered with
activities of daily living including interaction with his spouse and hearing the television.
Appellant uses an assistive listening device to try to communicate better. He notes difficulty
with tinnitus when there is a lot of background noise or a loud room. Dr. Powell noted that,
although appellant did have bilateral middle ear fluid, that was most likely a contributing factor
to his mixed hearing loss, the vast majority of his permanent loss was neurosensory in nature and
secondary to loud noise exposure secondary to his federal civilian employment.
Audiometric testing was conducted on Dr. Powell’s behalf on September 23, 2014. With
regard to the left ear, he noted test results for 500, 1,000, 2,000, and 3,000 Hz of 55, 50, 80, and
90. Dr. Powell added these figures together to equal 275 and divided that amount by 4 and found
an average of 68.75. He then reduced the amount by the threshold fence of 25 decibels (dB)
which resulted in 43.75. Dr. Powell then multiplied this amount by 1.5 to find a 65.625 percent

2

monaural hearing loss in the left ear. He added 5 percent for tinnitus, and found a total monaural
hearing loss in the left ear of 70.625 percent.2
With regard to the right ear, Dr. Powell found test results for 500, 1,000, 2,000, and 3,000
Hz of 60, 65, 75, and 95, respectively. He then added these figures together to reach 295 and
divided that amount by 4 to find an average threshold for the 4 frequencies of 73.75. Dr. Powell
then deducted the threshold fence of 25 dB which resulted in 48.75 and multiplied this by 1.5 to
equal a 73.125 percent monaural loss. He added a 5 percent rating for tinnitus for a total 78.125
percent monaural hearing loss. Dr. Powell determined the binaural hearing loss by multiplying
the lesser hearing loss of 70.625 by 5 which equaled 353.125. He then added the greater
monaural loss of 78.125 to equal 431.25, which he divided by 6 to equal a binaural hearing loss
of 71.875 percent.
Dr. Powell’s report was referred to an OWCP medical adviser. On March 19, 2015 the
OWCP medical adviser completed the Hearing Loss Medical Opinion (Form CA-51) (1977).
For the left ear he found at the levels of 500, 1,000, 2,000, and 3,000 Hz appellant had hearing
losses of 55, 50, 80, and 90, which he totaled and divided by 4 to find 68.75 from which he
deducted the fence of 25 and found a balance of 43.75 which he multiplied by 1.5 to arrive at a
65.625 percent monaural hearing loss. For the right ear the medical adviser found that at 500,
1,000, 2,000, and 3,000 Hz appellant had losses of 60, 65, 75, and 95, which he totaled and
divided by 4 to equal 73.125. He deducted the fence of 25 and found a balance of 48.75, which
he multiplied by 1.5 to arrive at a 73.125 percent monaural loss. The medical adviser then took
the lesser hearing loss of 65.625 and multiplied it by 5 and added this figure to the 73.75 greater
loss and divided by 6 to result in a hearing loss of 66.875 rounded up to 67 percent binaural
loss.3 He also indicated that hearing aids should be authorized. The CA-51 (March 1977) used
to record his calculations does not contain a numerical line for consideration or assignment of
impairment for tinnitus.
By decision dated April 21, 2015, OWCP issued a schedule award for a bilateral hearing
loss of 67 percent.
LEGAL PRECEDENT
The schedule award provision of FECA4 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
2

A.M.A, Guides (6th ed. 2009) 249, Chapter 11.2b Tinnitus, states that if tinnitus interferes with activities of daily
living, including sleep, reading and other tasks requiring concentration, enjoyment of quiet recreation and emotional
well-being up to five percent may be added to a measurable binaural hearing impairment.
3

The Board notes that it is the policy of OWCP to round the calculated percentage of impairment to the nearest
whole point. See Robert E. Cullison, 55 ECAB 570 (2004); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(b) (January 2010).
4

5 U.S.C. §§ 8101-8193.

3

OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule loss and the
Board has concurred in such adoption.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 dB is deducted
because, as the A.M.A., Guides points out, losses below 25 dB 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 and 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 The Board has also noted OWCP’s policy to round the
calculated percentage of impairment to the nearest whole number.8
If tinnitus interferes with activities of daily living, including sleep, reading and other
tasks 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
After reviewing the report of Dr. Nekl, OWCP accepted appellant’s claim for binaural
hearing loss. It referred appellant to Dr. Powell for a second opinion evaluation and a
determination of the amount of appellant’s hearing loss. Dr. Powell, in his September 23, 2014
opinion, found that with regard to the left ear, using results for 500, 1,000, 2000, and 3,000 Hz
for monaural hearing loss in the left ear of 55, 50, 80, and 90, respectively, these totals were
added together to equal 275 and then divided by 4 to equal an average of 68.75. He then reduced
the amount by the threshold fence of 25 dB, which resulted in 43.75, and multiplied this amount
by 1.5 to find a 65.625 percent monaural hearing loss in the left ear.
On the right ear, he found that testing at 500, 1,000, 2,000, and 3,000 Hz revealed 60, 65,
75, and 95 respectively. Dr. Powell then added these figures together to equal 295 and divided
by 4 to find an average threshold of 73.75, from which he deducted the threshold fence of 25 dB
5

See Federal (FECA Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
6

See A.M.A., Guides 250.

7

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

8

J.H., Docket No. 08-2432 (issued June 15, 2009), Robert E. Cullison, 55 ECAB 570 (2004). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).
9

A.M.A., Guides 249.

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which equaled 48.75, and multiplied this product by 1.5 to equal a 73.125 percent monaural loss.
Dr. Powell then determined the binaural hearing loss and added 5 percent for tinnitus to equal a
binaural hearing loss of 71.875 percent.
The Board finds that Dr. Powell properly explained how he calculated hearing
impairment. Dr. Powell properly applied the A.M.A., Guides to arrive at the 71.875 percent
binaural hearing loss. The Board finds that his report was thorough, detailed, and properly
applied the A.M.A., Guides.10
FECA procedures relating to the evaluation of schedule awards state that the file should
be routed to OWCP’s medical adviser for an opinion concerning the nature and percent of
impairment.11 Accordingly, OWCP referred appellant’s case to an OWCP medical adviser. The
OWCP medical adviser utilized the figures found by Dr. Powell with regard to hearing loss as
found on the audiogram. However, while Dr. Powell had recommended that appellant be
granted an additional award for tinnitus, OWCP’s medical adviser neglected to factor into the
calculation any loss for tinnitus or provide an explanation as to why he did not consider tinnitus
in determining appellant’s permanent binaural hearing impairment. The Board notes that
regarding tinnitus, the A.M.A., Guides provide that tinnitus in the presence of unilateral or
bilateral hearing impairment may impair speech discrimination. Therefore, up to five percent
may be added for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the
ability to perform activities of daily living.12
The Board finds that appellant has met his burden of proof for an increased schedule
award to account for his tinnitus. In an examination for rating purposes Dr. Powell provided an
extensive and well-rationalized opinion as to the extent of appellant’s hearing loss. He provided
examples in his report of activities of daily living impacted by the diagnosed tinnitus condition.
The additional five percent award for tinnitus has factual support within the record as Dr. Powell
provided specific incidents of the tinnitus impacting appellant’s activities of daily life.
Alternatively, the opinion of OWCP’s medical adviser neglected, without any rationale for doing
so, to provide an evaluation of appellant’s impairment for tinnitus. Dr. Powell’s rating report
was based upon an accurate medical history following a comprehensive audiometric
examination. Moreover, as noted, his rating report articulates a factual history for an award for
tinnitus upon report of the condition’s impact on his activities of daily living followed by a wellrationalized explanation of the basis for the tinnitus award. The opinion of OWCP’s medical
adviser made no mention of a rating for tinnitus despite its obvious existence in the record and
within the opinion of Dr. Powell which he was reviewing.
The Board therefore finds that the opinion of Dr. Powell as to the extent of appellant’s
permanent binaural hearing loss is entitled to the weight of the medical evidence. The second
opinion physician has provided a well-rationalized opinion as to the extent of permanent binaural
10

See S.M., Docket No. 14-1668 (issued May 1, 2015).

11

FECA Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6e (February 2013).
12

See D.W., Docket No. 14-931 (issued August 11, 2014).

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hearing loss while OWCP’s medical adviser failed to accurately address the diagnosed tinnitus
and assign an impairment.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish an increased
schedule award of 5 percent in addition to the 67 percent impairment for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 21, 2015 is reversed and appellant shall be compensated for
an increased schedule award of 5 percent, in addition to the 67 percent impairment for which he
received a schedule award.
Issued: December 7, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.N., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
New Haven, CT, Employer
__________________________________________

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Appearances:
Peter M. Appleton, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1388
Issued: March 20, 2020

Case Submitted on the Record

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

JURISDICTION
On June 10, 2019 appellant, through counsel, filed a timely appeal from an April 1, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than one
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On March 30, 2015 appellant, then a 54-year-old tax specialist, filed an occupational
disease claim (Form CA-2) alleging that she developed cubital tunnel and carpal tunnel syndromes
of the right upper extremity as a result of repetitive employment duties. She first became aware
of her condition and of its relationship to factors of her federal employment on
September 24, 2014. After denial of the claim on June 30, 2015 and February 29, 2016, on
July 12, 2016 OWCP accepted the claim for right cubital tunnel and carpal tunnel syndromes in
OWCP File No. xxxxxx263.3
On November 10, 2014 appellant underwent OWCP-approved anterior transposition of the
right ulnar nerve and endoscopic carpal tunnel release.
In a report dated March 26, 2015, Dr. Daniel J. Mastella, a Board-certified orthopedic hand
surgeon, examined appellant for complaints of locking of her small and ring finger. On
examination of the right upper extremity, he noted full range of motion at the elbow, wrist, and
digits, with no numbness or tingling in her fingers. At the wrist, Dr. Mastella noted negative
articular nonarticular, scaphoid shift, and finger extension testing. He noted tenderness to
palpation of the right ring and small fingers with no locking or catching along with sensitivity over
the right cubital tunnel incision at the anterior transposed nerve. Thenar strength was 4+/5, first
dorsal interosseous strength was at 4/5, and flexor pollicis longus strength was at 5/5. Dr. Mastella
diagnosed status post anterior transposition of the ulnar nerve and carpal tunnel release with
postoperative stenosing tenosynovitis (STS) of the ring finger and small finger.
On May 12, 2015 appellant followed up with Dr. Mastella for her right upper extremity
condition. On examination, Dr. Mastella noted that she had full range of motion of the elbow, but
ongoing symptoms attributable to the ulnar nerve on the right.
On August 3, 2016 appellant filed a claim for a schedule award (Form CA-7).
In an April 12, 2016 report, Dr. Mastella noted that appellant was status post anterior
transposition of the ulnar nerve and endoscopic carpal tunnel release. On examination of the right
elbow, he observed 140 degrees of flexion to slight hyperextension. On examination of the right
wrist, Dr. Mastella observed 60 degrees of flexion and extension, and 80 degrees of pronation and
supination. On examination of the right digits, he noted full range of motion and extension.
Dr. Mastella observed a positive Tinel’s sign at the carpal tunnel and a positive Phalen’s test, as
well as positive elbow compression, cubital tunnel compression, and positive forearm compression
testing. Referencing the sixth edition of the American Medical Association, Guides to the

3

Under OWCP File No. xxxxxx807, OWCP accepted that appellant sustained a contusion of the right ring finger
due to a stapler hitting her ring finger on September 24, 2014. It has administratively combined File No. xxxxxx263
and File No. xxxxxx807, with File No. xxxxxx263 serving as the master file.

2

Evaluation of Permanent Impairment,4 he determined that appellant had eight percent permanent
impairment of the right upper extremity due to her right-sided anterior transposition of the ulnar
nerve and endoscopic carpal tunnel release.
In a development letter dated August 9, 2016, OWCP requested that appellant submit a
detailed medical report from her attending physician, which included a statement that the accepted
condition had reached maximum medical improvement (MMI) and an impairment rating utilizing
the appropriate tables of the sixth edition of the A.M.A., Guides. It afforded her 30 days to submit
the necessary evidence.
In a letter dated August 11, 2016, OWCP requested that Dr. Mastella submit an addendum
report which provided a date of MMI, a detailed description of any preexisting permanent
impairment of the right upper extremity, and rationale for his calculation of eight percent
permanent impairment of the right upper extremity with reference to the appropriate criteria and
tables of the A.M.A., Guides. It afforded him 30 days to submit the addendum.
On August 22, 2016 Dr. Mastella responded and noted that appellant was last seen on
April 12, 2016, at which time she was determined to be at MMI. He noted that no permanent
impairment of the right upper extremity preexisted her injury. Dr. Mastella explained that criteria
from the sixth edition of the A.M.A., Guides were referenced to neurologic evaluation guides,
which were used to determine that appellant had eight percent permanent impairment of the right
upper extremity.
On December 27, 2016 OWCP referred the case record and a statement of accepted facts
(SOAF) to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a district medical
adviser (DMA), for review as to whether appellant sustained permanent impairment of the right
upper extremity as a result of her accepted conditions.
In a report dated December 28, 2016, the DMA recommended that OWCP contact
Dr. Mastella and afford him the opportunity to submit a detailed, corrective supplemental report.
He recommended that, if Dr. Mastella was unable to comply, a second opinion evaluation should
be obtained from a Board-certified specialist in orthopedic surgery or physical medicine and
rehabilitation. The DMA noted that Dr. Mastella’s August 22, 2016 report could not be accepted
as probative because he had not provided worksheets, narrative, or calculations to explain how he
had arrived at the eight percent permanent impairment rating.
In a letter dated December 30, 2016, OWCP requested that Dr. Mastella review the
December 28, 2016 report from the DMA and provide a supplemental report. In an accompanying
note, it requested that appellant submit the supplemental report from Dr. Mastella within 30 days.
No report was received.
On May 1, 2017 OWCP referred appellant to Dr. Robert Moskowitz, a Board-certified
orthopedic surgeon serving as a second opinion examiner, to provide an assessment of appellant’s
work-related right upper extremity conditions and any resulting permanent impairment.
In a June 5, 2017 report, Dr. Moskowitz indicated that he had reviewed the SOAF, the
medical record, and appellant’s history of injury. He noted that appellant’s physical examination
4

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

3

had not demonstrated significant physical findings that would be consistent with her severe
subjective complaints. While appellant reported pain of 9/10, Dr. Moskowitz noted that appellant
was two and a half years postsurgery and thus her chronic pain was psychosocial. He opined that
appellant had reached MMI. Using Table 15-23, page 449 of the sixth edition of the A.M.A.,
Guides, Dr. Moskowitz noted that appellant’s subjective responses to physical testing of her areas
of claimed sensory changes showed areas that would not be consistent with her carpal tunnel
syndrome or cubital tunnel syndrome diagnoses. He noted that appellant’s clinical studies
evidenced a conduction delay, which would be a grade modifier of 1. Because her history and
physical findings were inconsistent, Dr. Moskowitz assigned grade modifiers of zero, resulting in
a finding of zero percent permanent impairment of the right upper extremity due to carpal tunnel
syndrome. Applying the above criteria to appellant’s cubital tunnel syndrome, in which the
modifiers for history and physical findings were also zero due to inconsistency, he noted that
conduction delay would qualify for a grade modifier of 2, which would result in one percent
impairment of the right upper extremity.
On February 27, 2018 OWCP routed Dr. Moskowitz’s June 5, 2017 report, a statement of
accepted facts (SOAF), and the case file to the DMA for review as to whether appellant sustained
permanent impairment as a result of her accepted conditions.
In a report dated February 27, 2018, the DMA reviewed the SOAF, the case file, and
Dr. Moskowitz’s June 5, 2017 report. Using the sixth edition of the A.M.A., Guides, Table 15-23,
page 449, he rated appellant’s ulnar nerve impairment due to clinical studies as grade modifier 2,
with zero grade modifiers for physical examination (GMPE) and clinical studies (GMCS) due to
unreliability, resulting in a permanent impairment of one percent. With regard to appellant’s
median nerve impairment, Dr. Moskowitz rated GMCS of 1, with GMPE and grade modifier for
functional history (GMFH) of zero, resulting in zero percent permanent impairment. As such, he
concurred with Dr. Moskowitz’s calculation of permanent impairment of the right upper extremity.
Dr. Moskowitz noted that the accepted conditions were not eligible for an alternative range of
motion (ROM) based impairment calculation. He opined that appellant reached MMI on
June 5, 2017.
By decision dated August 9, 2018, OWCP granted appellant a schedule award for one
percent permanent impairment of the right upper extremity for 3.2 weeks of compensation during
the period June 5 to 26, 2017.
On December 18, 2018 appellant, through counsel, requested reconsideration of OWCP’s
August 9, 2018 decision. With her request, she submitted a letter from Dr. Mastella dated
November 2, 2018. Dr. Mastella noted that appellant continued to have significant problems,
including elbow pain at the area of her anterior transposition, ongoing numbness, and tingling in
the small finger with stiffness. He further noted that he had rendered a permanent impairment
evaluation of eight percent of the right upper extremity on April 12, 2016. Dr. Mastella argued
that the A.M.A., Guides offered a limited view as it only rated findings that were easily measured.
He added that he had used appellant’s complaints to complete his evaluation and had taken into
account observations of dysfunction in her hand, results of provocative tests, and measurement of
function of bones, joints, nerves, and tendons. Dr. Mastella concluded that he stood by his rating
of eight percent permanent impairment of appellant’s right upper extremity.
By decision dated April 1, 2019, OWCP denied modification of the decision dated
August 9, 2018.
4

LEGAL PRECEDENT
Under section 8107 of FECA5 and section 10.404 of the implementing federal regulations,6
schedule awards are payable for permanent impairment of specified body members, functions or
organs. FECA, however, does not specify the manner in which the percentage of impairment shall
be determined. For consistent results and to ensure equal justice under the law for all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX) condition, which is then adjusted by GMFH, GMPE, and GMCS.9 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Permanent impairment due to carpal tunnel syndrome and cubital tunnel syndrome is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.11 In Table 15-23, grade modifier levels (ranging
from zero to four) are described for the categories test findings, history, and physical findings. The
grade modifier levels are averaged to arrive at the appropriate overall grade modifier level and to
identify a default rating value. The default rating value may be modified up or down by one
percent based on functional scale, an assessment of impact on daily living activities.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.13

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8
Supra note 5, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
9

Id. at 383-419.

10

Id. at 411.

11

Id. at 449.

12

Id. at 448-49.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See J.T., Docket No. 17-1465 (issued September 25, 2019); C.K., Docket No.
09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than one
percent permanent impairment of the right upper extremity, for which she has previously received
a schedule award.
In an April 12, 2016 report, Dr. Mastella noted appellant’s residual symptoms from postcarpal tunnel release and anterior transposition of the ulnar nerve on the right. Referencing the
sixth edition A.M.A., Guides, he found a permanent impairment of eight percent of the right arm
related to her right-sided anterior transposition of the ulnar nerve and endoscopic carpal tunnel
release. On December 28, 2016 the DMA recommended that OWCP contact Dr. Mastella and
afford him the opportunity to submit a detailed corrective supplemental report as his first report
did not indicate how the rating method and how it had been calculated. In a letter dated
November 2, 2018, Dr. Mastella indicated that the A.M.A., Guides offered a limited view as it
only rated findings that were easily measured. He explained that he had noted appellant’s
complaints and had taken into account observations of dysfunction, results of provocative tests,
and measurement of function of bones, joints, nerves, and tendons. Dr. Mastella confirmed his
rating of eight percent permanent partial impairment of appellant’s right upper extremity. The
Board notes that, while Dr. Mastella rendered an impairment rating of eight percent and made a
general reference to the A.M.A., Guides, he did not explain how the sixth edition of the A.M.A.,
Guides supported his impairment rating with references to tables and page numbers. To be of
probative value, the medical evidence must describe the impairment in sufficient detail so that it
can be visualized on review and utilized to compute the percentage of impairment in accordance
with the A.M.A., Guides.14 Dr. Mastella failed to adequately explain how the A.M.A., Guides
supported his findings.15 Since Dr. Mastella failed to explain how he arrived at an impairment
rating of eight percent with reference to tables and page numbers of the sixth edition of the A.M.A.,
Guides, his opinion is of limited probative value.
OWCP properly referred appellant for a second opinion evaluation. Dr. Moskowitz, the
second opinion physician, using Table 15-23, page 449 of the sixth edition of the A.M.A., Guides,
determined that appellant had zero percent permanent impairment of the right upper extremity due
to carpal tunnel syndrome and one percent permanent impairment of the right upper extremity due
to cubital tunnel syndrome. He noted that appellant had GMCS of 1 for carpal tunnel syndrome
and 2 for cubital tunnel syndrome and he provided his calculations.
The DMA, using the sixth edition A.M.A., Guides, Table 15-23, page 449, rated appellant’s
ulnar nerve impairment due to GMCS 2, with zero grade modifiers for GMPE and GMFH due to
unreliability, which were added and averaged resulting in a permanent impairment of one percent.
With regard to appellant’s median nerve impairment, he rated a GMCS 1, with zero grade
modifiers for GMPE and GMFH, which were added and averaged resulting in zero percent
permanent impairment. As such, he concurred with Dr. Moskowitz’s calculation of permanent
impairment of the right upper extremity.

14

See J.T., Docket No. 17-1465 (issued September 25, 2019); G.D., Docket No. 16-1712 (issued August 11, 2017).

15

Id.

6

The Board finds that Dr. Moskowitz and the DMA properly reviewed the medical evidence
of record and explained their findings with regard to GMCS, GMFH, and GMPE by reviewing the
medical findings of record and applying them to the criteria set forth in the A.M.A., Guides. The
Board thus finds that the well-rationalized opinions of the second opinion physician,
Dr. Moskowitz, and the DMA represent the weight of the medical evidence regarding permanent
impairment of appellant’s right upper extremity.16
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than one
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 20, 2020
Washington, DC

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

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

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

16

See id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 07-2258
Issued: June 5, 2008

Case Submitted on the Record

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

JURISDICTION
On August 22, 2007 appellant filed a timely appeal from the May 25, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review this denial. The Board has no jurisdiction to review the Office’s July 25, 2005 merit
decision denying appellant’s claim for compensation, as more than a year has passed from the
date of that decision to the filing of this appeal.1
ISSUE
The issue is whether the Office properly denied appellant’s July 17, 2006 request for
reconsideration.

1

See 20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
On April 24, 2005 appellant, then a 60-year-old mechanic, filed a claim alleging that he
suffered from stress as a result of harassment at work:
“What happened on April 21, 2005 was the last straw. I can’t take any more. I
have been harassed, intimidated, called a liar, was told I was dishonest and was
told I committed fraud and that’s just for starters. Things were written about me
in our shop area and some of my coworkers have told others I was committing
fraud. Gerald Adkins has made my life a living hell since February 17, 2005 the
day I returned to work.”
Appellant submitted more detailed statements to support his claim. Medical evidence
showed that he presented with complaints of chest pain. A clinical psychologist diagnosed
adjustment disorder with mixed anxiety and depression.
On February 28, 2005 the employing establishment issued to appellant a notice of
proposed removal for improper conduct, which read in part:
“On November 22, 2004 and again on December 17, 2004, I [Supervisor,
Maintenance Operations] informed you that limited-duty work was available for
your claimed job-related injury when you submitted your doctor notes. You
failed to inform your physician that limited-duty work was available. Without
this information the doctor placed you on full restrictions for two months. Had
the doctor had this information about limited-duty work being available, he would
not have put you on full restrictions. This is supported by the fact that[,] when the
doctor was finally told by the Postal Inspector that limited-duty work was
available, he changed your return to work date with restrictions without giving
you another examination. It is further supported by the video captured by the
Postal Inspector where you were clearly performing tasks that would have been
more strenuous than those that would have been assigned on limited duty. Your
actions were dishonest and cannot be tolerated.”
On April 7, 2005 the employing establishment issued a letter of decision finding that the
charge of improper conduct was fully supported by the evidence and warranted his removal.
Appellant filed a grievance. On April 15, 2005 the parties entered into a grievance resolution:
“To resolve this grievance, the ‘Notice of Proposed Removal’ dated February 28,
2005 and the ‘[l]etter of [d]ecision’ dated April 7, 2005 are reduced to a seven[d]ay (time off without pay) [s]uspension. This suspension was served the week
of April 9 [to] 15, 2005. [Appellant] will return to work on April 16, 2005.
Furthermore, it is agreed that the seven-[d]ay [s]uspension will be removed from
the grievant’s record on August 28, 2005 provided he does not receive any
additional discipline prior to this date.”
In a decision dated July 25, 2005, the Office denied appellant’s claim for compensation.
It found that he did not substantiate his allegations of harassment and consequently did not

2

establish a compensable factor of employment. The Office noted: “you have not established,
beyond your mere perception, your employing establishment erred or abused their authority.
While the proposed removal was reduced to a suspension, the grievance resolution did not make
a finding that your employing establishment acted unreasonably.”
On July 17, 2006 appellant requested reconsideration. He argued that there was
substantial evidence of error, abuse and unreasonable behavior at the employing establishment.
Among other things, appellant argued that the manager of maintenance operations gave him an
improper letter of instruction dated May 16, 2005, a copy of which he attached:
“Subject: Letter of Instruction, Employee Rights and Responsibilities
“Please review the subject letter (attached) and follow it to the letter.
“You are herewith notified that the Postal Service has limited-duty work
available.
“It is your responsibility to notify your attending physician that limited duty is
available.
“Be assured, the Postal Service will follow the provisions of the Employee and
Labor Relations Manual (546.1411) so as to minimize any adverse effect on
you.”2
Appellant also submitted a November 17, 1982 memorandum from the Assistant
Postmaster General, Labor Relations Department:
“It has come to our attention through grievances appealed to Step 4 that local
managers in some areas are issuing ‘Letters of Information’ or ‘Letters of
Instruction’ to employees, bringing to their attention matters of concern to local
management about possible improprieties on the part of the employees. Such a
procedure is highly suspect and is an attempt to avoid the discussion process
provided in Article 16 of the National Agreement.
“The use of such letters serves no useful purpose as an element for consideration
in future actions against an employee, particularly when Article 16, Section 2,
places the responsibility on management to discuss minor offenses with the
employee.
“Letters of Instruction and Letters of Information or similar type missives are not
appropriate and will be discontinued immediately.”

2

A May 12, 2005 letter to appellant advised him of his rights and responsibilities, including his responsibility, if
limited-duty work was available and offered, to notify his attending physician and request specific limitations and
restrictions, and thereafter to immediately notify his supervisor, health unit or Shared Service Center of the
limitations and restrictions imposed by his physician.

3

Appellant argued that the charge of improper conduct had no basis in fact, as his
physician completed a Form CA-17 stating “[l]imited[-d]uty is [a]vailable.” He argued that he
was never advised in writing of the specific duties and physical requirement of any limited-duty
work being made available. Appellant argued that it was undisputed that postal inspectors never
spoke to his physician but relied instead on a review of the medical file by the physician’s office
manager. Then, citing 20 C.F.R. § 10.506 (2005), he alleged there was a serious question
whether the postal inspector’s contact with a physician was permissible. Appellant contended
that no limited duty was in fact available on February 17, 2005 and that his trip to Las Vegas was
not inconsistent with his physician’s restriction that he not work. He characterized his removal
from employment frivolous and unwarranted.
To support error and abuse by the employing establishment, appellant that, while there
was no specific finding that the agency acted unreasonably when it fired him, “the facts speak for
themselves.” It is obvious, he stated, that when a dismissal is reduced to a mere seven-day
suspension, the termination is unreasonable. Citing decisions of the Merit Systems Protection
Board (MSPB), appellant argued that, when the MSPB sustains the charges in an adverse action
appeal but mitigates the penalty based on evidence before (or readily available to) the agency at
the time it took the action, an award of attorney fees is warranted in the interest of justice
because the agency knew or should have known that its choice of penalty would not be upheld.
He added that being forced to work beyond his restrictions, being charged with misconduct when
the supervisor knew there was no case, being called a “piece of shit” and a “thief,” being
threatened and abused by a supervisor, and being thrown out of the Union office all amounted to
a clear pattern of abuse and unreasonable behavior.
On March 23, 2007 the employing establishment responded to appellant’s request for
reconsideration. Appellant replied on May 1, 2007. He submitted an October 28, 2005 affidavit
from James R. Marshall, who stated that appellant’s supervisor, Mr. Adkins, told him that he
knew the employing establishment did not have a case against appellant for discharge. “Yes this
is what happened,” Mr. Marshall wrote. “I do [not] remember word for word what was said.”
In a decision dated May 25, 2007, the Office denied appellant’s request for
reconsideration without reviewing the merits of his case. The Office found that appellant did not
submit evidence of a relevant nature to warrant reopening his case for a merit review. The
Office found that the evidence he submitted did not provide additional factual information and
that appellant’s statements provided no new and relevant information not previously considered.
LEGAL PRECEDENT
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.3 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”4

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605.

4

An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.5
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.6 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.7 The regulatory requirement for reopening a claim for merit review does not include the
requirement that a claimant submit all evidence necessary to discharge his burden of proof. The
claimant need only submit evidence that is relevant and pertinent and not previously considered.8
“Relevant evidence” means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.9
ANALYSIS
Appellant is entitled to a merit review of his case under the third standard above. To
support his July 17, 2006 request for reconsideration, he submitted a November 17, 1982
memorandum from the assistant postmaster general advising that letters of instructions were
inappropriate and would be discontinued immediately. Appellant also submitted a May 18, 2005
letter of instruction he received from the manager of maintenance operations. This evidence is
new and was not previously considered. The evidence does not appear in the record prior to the
Office’s July 25, 2005 merit decision denying appellant’s claim.
This evidence is also relevant and pertinent. The Office denied appellant’s claim for
compensation because he failed to establish a factual basis for his allegations. Specifically, he
failed to show administrative error or abuse. The November 17, 1982 policy memorandum noted
that letters of instruction were inappropriate. Appellant’s receipt of a letter of instruction on
May 18, 2005, bears on a fact that is of consequence to the determination of his claim absent

5

Id. at § 10.606.

6

Id. at § 10.607(a).

7

Id. at § 10.608.

8

See Billy B. Scoles, 57 ECAB 258 (2005).

9

Fed. R. Evid. 401.

5

evidence that the 1982 policy memorandum had been set aside.10 The Board finds that the
evidence submitted by appellant is relevant and pertinent to the grounds upon which the Office
denied his claim.
Appellant’s request for reconsideration contains evidence that constitutes relevant and
pertinent new evidence not previously considered by the Office. The Board will set aside the
Office’s May 25, 2007 decision denying reconsideration and will remand the case for merit
review.
CONCLUSION
The Board finds that the Office improperly denied appellant’s July 17, 2006 request for
reconsideration. The request meets at least one of the three standards for obtaining a merit
review of his case.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: June 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10

It is unknown whether the policy announced in 1982 was still in effect when appellant received his letter of
instruction, or whether Article 16 of the National Agreement still placed responsibility on management to discuss
minor offenses with the employee.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 10-1153
Issued: February 2, 2011

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 March 15, 2010 appellant filed a timely appeal from a February 18, 2010 merit
decision of the Office of Workers’ Compensation Programs denying her request for surgery.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly denied authorization for right knee arthroscopic
surgery.

FACTUAL HISTORY
On April 14, 1999 appellant, then a 44-year-old letter carrier, sustained a right knee
injury while walking up an incline to make a delivery. The Office accepted her claim for right
knee sprain. Appellant did not stop work.1
Appellant was treated by Dr. Keith J. Simon, a Board-certified orthopedic surgeon, for
right knee pain from the work injury. Dr. Simon noted that x-rays revealed arthritic changes, a
meniscal tear and a medial collateral ligament sprain. He diagnosed patellofemoral pain
syndrome and recommended anti-inflammatories, physical therapy and a knee sleeve. A June 2,
1999 magnetic resonance imaging (MRI) scan of the right knee revealed no abnormality of the
patella or patellar cartilage, the lateral meniscus appeared unremarkable, normal anterior and
posterior cruciate ligament and no evidence of internal derangement. A July 7, 2000
electromyogram (EMG) revealed evidence of loss of neurogenic power in the right vastus
lateralis without denervation. In an April 10, 2007 duty status report, Dr. Simon released
appellant to work with permanent restrictions.
On August 28, 2008 appellant requested permission to change physicians to Dr. Anthony
Infante, an osteopath. She contended that she sustained a separate injury to her left knee and
underwent surgery on March 10, 2008. Appellant maintained that her right knee injury of
April 14, 1999 was aggravated by her left knee injury due to increased stress and use.2 She
submitted a September 3, 2008 report from Dr. Infante who reviewed a history of injury and
listed persistent right knee pain. Dr. Infante advised that a September 5, 2008 MRI scan of the
right knee revealed a tear of the medial meniscus, strain in the medial and fibular collateral
ligaments, osteoarthritis and joint effusion. In a September 22, 2008 form, Dr. Infante requested
authorization to perform right knee arthroscopy.
In a letter dated September 24, 2008, the Office advised that authorization for surgery
could not be approved and that further development was required.
In a September 30, 2008 report, an Office medical adviser found that the proposed right
knee surgery was not needed for treatment of the 1999 right knee sprain. The medical adviser
noted that appellant had a left knee arthroscopy on March 10, 2008 with good results and that the
clinical evidence did not support a consequential injury or worsening of the right knee due to
increased use or stress from the left knee.
In a September 17, 2008 report, Dr. Infante noted findings upon examination of
tenderness to palpation of medial joint line space, mild pain over the patellar with no swelling or
edema. An MRI scan of the right knee revealed medial meniscus tear with collateral sprains

1

Appellant requested a schedule award but the Office denied the request on February 25, 2002 and in subsequent
decisions.
2

On February 18, 2008 appellant filed a traumatic injury claim for a left knee injury sustained while retrieving
parcels. This was accepted for tear of the medial meniscus and sprain of the knee medial collateral ligament, claim
number xxxxxx449. This claim is not before the Board on the present appeal.

2

with mild arthritis and an x-ray of the right knee noted a meniscus tear. Dr. Infante again
recommended arthroscopic surgery of the right knee.
In an October 7, 2008 letter, the Office granted appellant’s request to change physician’s
to Dr. Infante. It advised her that the evidence was insufficient to authorize right knee
arthroscopic surgery because the requested treatment was not medically necessary or related to
the accepted injury. The Office requested that appellant provide additional information to
establish that her current right knee condition was related to the work injury or employment
factors. It provided her with the September 30, 2008 report of the medical adviser and requested
a narrative opinion from her physician addressing how her condition was causally related to the
accepted work injury and whether she had residuals.
In an October 16, 2008 report, Dr. Infante noted reviewing a 1999 right knee MRI scan
which did not reveal any tears of the meniscus but noted that there were a significant number of
MRI scans that were incorrectly read by radiologists as normal when they were positive for
meniscus tears. He advised that, if appellant did not have the meniscus tear removed and the
knee cleaned out, she would continue to experience pain. Dr. Infante diagnosed torn medial
meniscus and recommended diagnostic surgical arthroscopy of the right knee.
On October 24, 2008 the Office referred appellant to Dr. Ponnovolu D. Reddy, a Boardcertified orthopedic surgeon, for a second opinion examination. In an August 5, 2009 report,
Dr. Reddy reviewed the records and statement of accepted facts on examination of the right
knee, there was no deformity, tenderness over the medial joint line, palpable patellofemoral
crepitus, full extension and flexion with normal distal pulses. Dr. Reddy noted a September 5,
2008 MRI scan of the right knee showed a medial meniscal tear, strain of the collateral ligaments
and osteoarthritis with joint effusion. Appellant reported falling again in 2008 and sustaining a
right knee injury and right knee pain with giving way in the medial and anterior aspect of the
right knee. Dr. Reddy opined that right knee arthroscopic surgery was not warranted in the
treatment of appellant’s April 14, 1999 injury as her symptoms were secondary to patellofemoral
arthritis. He recommended intra-articular steroid injection or Visco supplementation and noted
that arthroscopic surgery would not provide significant relief of her symptoms. Dr. Reddy noted
that appellant continued to have medial joint line tenderness related to the April 14, 1999 work
injury. He advised that appellant could not perform her regular letter carrier position because of
the arthritic changes in the right knee and chronic pain.
In a decision dated September 4, 2009, the Office denied the requested for surgery,
finding that surgery was neither warranted nor causally related to appellant’s accepted right knee
strain.
On September 14, 2009 appellant requested a telephonic hearing which was held on
December 9, 2009. In a January 6, 2010 report, Dr. Infante reviewed a history of her bilateral
knee injuries. He noted that appellant’s right knee medial meniscal tear was sustained when she
fell in the emergency room after being placed in a brace for her left knee injury. Dr. Infante
again recommended right knee arthroscopic surgery.
In a decision dated February 18, 2010, an Office hearing representative affirmed the
September 4, 2009 decision. The hearing representative denied authorization for the right knee

3

surgery on the grounds that there was insufficient rationalized medical evidence to establish the
right knee medial meniscus tear was causally related to the April 14, 1999 injury.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act3 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of monthly compensation.4 In interpreting this section of the Act, the
Board has recognized that the Office has broad discretion in approving services provided under
section 8103, with the only limitation on the Office’s authority being that of reasonableness.5
Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deductions
from established facts. It is not enough to merely show that the evidence could be construed so
as to produce a contrary factual conclusion.6 In order to be entitled to reimbursement for
medical expenses, a claimant must establish that the expenditures were incurred for treatment of
the effects of an employment-related injury.7
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence. Thus, in order for a surgery to be authorized, appellant must submit evidence
to show that the requested procedure is for a condition causally related to the employment injury
and that it is medically warranted. Both of these criteria must be met in order for the Office to
authorize payment.8
ANALYSIS
The Office accepted that appellant sustained a right knee sprain on April 14, 1999. On
September 22, 2008 Dr. Infante requested authorization to perform right knee arthroscopy. The
Board finds that appellant did not submit sufficient medical evidence addressing how the need
for right knee arthroscopy is related to her April 14, 1999 work injury, accepted for a right knee
sprain. The Board finds that the Office did not abuse its discretion in denying the request for
right knee arthroscopy.
On August 5, 2009 Dr. Reddy, a second opinion referral physician found no deformity of
the right knee, some tenderness over the medial joint line, palpable patellofemoral crepitus, full
3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

James R. Bell, 52 ECAB 414 (2001).

6

Claudia L. Yantis, 48 ECAB 495 (1997).

7

Cathy B. Mullin, 51 ECAB 331 (2000).

8

Id.

4

range of motion with normal distal pulses. He did not believe that right knee arthroscopic
surgery was warranted for treatment of appellant’s April 14, 1999 injury. Dr. Reddy advised that
appellant’s symptoms were secondary to patellofemoral arthritis, as noted on the
September 5, 2008 MRI scan. He recommended nonsurgical treatment and noted that
arthroscopic surgery would not provide significant relief of her symptoms.
On September 30, 2008 the Office medical adviser opined that the proposed right knee
arthroscopy was not indicated to treat appellant’s employment-related injury of April 14, 1999.
He also opined that the clinical evidence was not sufficient to support a consequential injury or
worsening of the right knee due to increase use and stress from the left knee surgery.
Dr. Infante recommended surgery on September 22, 2008. He noted that an MRI scan of
the right knee revealed a medial meniscus tear with collateral sprains and mild arthritis. The
Board notes that appellant’s claim was not accepted for medial meniscus tear, collateral sprains
or arthritis. Dr. Infante did not adequately explain the causal relationship between these
conditions and the right knee sprain of April 14, 1999.9 On October 16, 2008 he reviewed the
1999 MRI scan of the right knee which did not reveal any tears of the meniscus. Dr. Infante
advised only that there were a significant amount of MRI scans which were incorrectly read by a
radiologist as normal when they were positive for meniscus tears. He repeated the diagnosis of
torn medial meniscus. Dr. Infante did not explain how the accepted sprain would cause or
contribute to a torn medial meniscus first diagnosed some nine years after injury. He did not
provide sufficient medical rationale explaining the reasons why the 1999 injury contributed to a
meniscal tear for which surgery was medically warranted.10 In a January 6, 2010 report,
Dr. Infante opined that appellant’s right knee medial meniscal tear was sustained when she fell in
the emergency room after being placed in a brace for her left knee injury. This report does not
support that the right knee meniscus tear was related to the April 14, 1999 work injury; rather, he
attributed the condition to an unrelated fall in 2008.11 Other medical records do not provide an
opinion on the causal relationship between appellant’s requested right knee surgery and her
April 14, 1999 work injury.
The Office medical adviser and the second opinion physician found that the proposed
right knee arthroscopic surgery was not warranted for treatment of appellant’s injury of
April 14, 1999. For a surgical procedure to be authorized, a claimant must show that the surgery
is medically warranted and is for a condition causally related to an employment injury.12

9

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
10

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
11

Should appellant feel that the need for right knee surgery is a consequence of her left knee injury, she may wish
to pursue the matter before the Office under the claim for her left knee, File No. xxxxxx449.
12

5 U.S.C. § 8103; see also R.C., 58 ECAB 238 (2006) (where the Board found that for a surgery to be
authorized, a claimant must submit evidence to show that the requested procedure is for a condition causally related
to the employment injury and that it is medically warranted).

5

Appellant did not submit sufficient medical opinion and the Office properly denied authorization
for the requested surgery.
CONCLUSION
The Board finds that the Office did not abuse its discretion under 5 U.S.C. § 8103 when it
denied appellant’s claim for authorization of right knee arthroscopic surgery.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2010 is affirmed.
Issued: February 2, 2011
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
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plano, TX, Employer
__________________________________________

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

Docket No. 15-850
Issued: June 18, 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 March 10, 2015 appellant filed a timely appeal from a January 21, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a back injury in the
performance of duty.
FACTUAL HISTORY
On August 5, 2014 appellant, then a 50-year-old sales and service associate, filed a claim
for traumatic injury (Form CA-1) asserting that he sustained a low back strain on July 8, 2014
while scanning and throwing parcels. His supervisor controverted the claim as appellant did not
1

5 U.S.C. §§ 8101-8193.

identify an injury. A second supervisor confirmed that appellant reported back pain on July 8,
2014 and that he advised appellant to seek medical care. The supervisor contended that appellant
did not mention an occupational injury.
In a July 8, 2014 work slip, Dr. G. Emory Warren, an attending physician specializing in
occupational medicine, diagnosed a lumbar strain and noted work restrictions.
On August 26, 2014 OWCP advised appellant of the additional evidence needed to
establish his claim, including a detailed description of the work factors that caused or contributed
to the claimed condition, and a report from his attending physician explaining how and why
those tasks caused the claimed low back strain. It afforded appellant 30 days to submit such
evidence.
Dr. Warren provided a history of injury in a July 11, 2014 report. He related appellant’s
account of a July 8, 2014 onset of lumbar pain, worse on the left, while “lifting parcels constant
bending and lifting.” Dr. Warren diagnosed a lumbar strain and lumbar pain. He noted work
restrictions, prescribed medication, and ordered physical therapy. Dr. Warren submitted July 15
and 24, 2014 follow-up reports, noting appellant’s symptoms improved with physical therapy.
He diagnosed a lumbar strain, lumbar pain, and sacroiliac pain. Dr. Warren restricted appellant
to modified duty.2
By decision dated October 7, 2014, OWCP denied appellant’s claim as fact of injury was
not established. It found that appellant did not establish that the work incidents of July 8, 2014
occurred as alleged.
In an October 18, 2014 letter, appellant requested reconsideration. He reiterated that he
injured his back on July 8, 2014 while scanning and sorting parcels. Appellant asserted that he
“reported that injury to [his] immediate supervisor and they advised [him] to go see a doctor.”
He provided a copy of Dr. Warren’s July 11, 2014 report, updated with Dr. Warren’s
September 2, 2014 electronic signature. Appellant also submitted duplicate copies of reports
previously of record.
By decision dated January 21, 2015, OWCP modified its prior decision to accept that the
identified work factors of sorting and throwing parcels occurred at the time, place, and in the
manner alleged. It denied the claim, however, as causal relationship was not established.
OWCP found that the medical record did not explain how and why the accepted work factors
would cause the diagnosed lumbar strain.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
2

Appellant also provided physical therapy notes dated July 14, 15, 17, 21, 24, and 28, 2014. He also provided
employing establishment documents regarding leave buy back and health care benefits.

2

disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
An employee has not met his or her burden of proof of establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim.6 Second, the employee must submit sufficient evidence, generally only in the form of
medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.8
ANALYSIS
Appellant claimed that he sustained a traumatic lumbar injury on July 8, 2014 while
throwing and sorting parcels. The employing establishment initially controverted the claim and
OWCP denied the claim based on a lack of evidence corroborating appellant’s work activities on
July 8, 2014. On reconsideration, OWCP accepted that the identified work factors occurred at
the time, place, and in the manner alleged. However, it denied the claim because the medical
evidence was insufficient to establish causal relationship.
In support of his claim, appellant submitted reports dated from July 8 to 24, 2014 by
Dr. Warren, an attending physician specializing in occupational medicine. Dr. Warren repeated
appellant’s history of the onset of low back pain on July 8, 2014 while throwing and sorting
parcels at work. He diagnosed a lumbar strain, lumbar pain, and sacroiliac pain. In his reports,
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

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

6

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

Dr. Warren did not explain how or why throwing and sorting parcels would cause the claimed
lumbar injury.
OWCP advised appellant by letter of August 26, 2014 the necessity of submitting a
statement from his attending physician explaining the medical reasoning supporting a causal
relationship between the accepted work factors and the claimed lumbar injury. Appellant did not
submit the evidence requested and OWCP’s January 21, 2015 decision was correct.
On appeal appellant asserts that he reported the claimed injury to his supervisor
immediately after it happened. The prompt report of the claimed injury is indisputable. A
supervisory statement acknowledged that appellant reported back pain on July 8, 2014.
Appellant also asserted that OWCP paid for all treatment and medication connected with the
claimed injury. The Board notes, however, that OWCP payments are not an acceptance of a
condition as work related.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a lumbar injury in the performance of
duty.

9

S.P., Docket No. 15-225 (issued April 1, 2015); M.C., Docket No. 12-64 (issued May 10, 2012); Gary L.
Whitmore, 43 ECAB 441 (1993).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 21, 2015 is affirmed.
Issued: June 18, 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

5