United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
PLANT PROTECTION & QUARANTINE,
Riverdale, MD, Employer
__________________________________________

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

Docket No. 11-2127
Issued: June 8, 2012

Case Submitted on the Record

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

JURISDICTION
On September 21, 2011 appellant filed a timely appeal from a June 10, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding her schedule
award 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 the claim.2

1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted a timely request for oral argument before the Board pursuant to 20 C.F.R. § 501.5(b). The
Board has duly considered the matter and finds that appellant’s request for oral argument should be denied.
Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the discretion of the Board. The Board in exercising
its discretion has determined that there is not a sufficient need for the oral argument in this case. The Board finds
that oral argument would further delay issuance of a decision and would not serve a useful purpose. Furthermore,
the appeal can adequately be addressed in a decision based on the case record submitted. For these reasons, oral
argument is denied.

ISSUE
The issue is whether appellant has established more than 37 percent right lower extremity
impairment, for which she received a schedule award.
FACTUAL HISTORY
On September 9, 2004 appellant, then a 53-year-old employee relations specialist, was
cleaning up a work area when she twisted her right knee. She stopped work and returned to
work on October 4, 2004. OWCP accepted the condition of right knee medial meniscus tear and
arthroscopy of the knee and paid compensation benefits. Appellant underwent approved
arthroscopic debridement of the torn medial and lateral meniscus on February 3, 2005 and an
approved total knee replacement surgery due to post-traumatic arthritis on February 9, 2009. She
retired on July 31, 2007.
On September 12, 2005 appellant filed a claim for a schedule award. By decision dated
March 10, 2006, OWCP denied a schedule award on the grounds the medical evidence did not
reflect her condition had reached maximum medical improvement. The record indicates that, on
September 4, 2007, it issued appellant a schedule award payment for 10 percent right lower
extremity impairment.
On July 30, 2009 appellant filed a claim for an increased schedule award. In a July 17,
2009 report, Dr. Uchenna Nwaneri, an orthopedic surgeon, opined that appellant had 73 percent
impairment to the right leg based on the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
On August 13, 2009 an OWCP medical adviser stated that appellant had not yet reached
maximum medical improvement from her knee replacement of February 9, 2009.
On March 4, 2010 appellant requested an increased schedule award. In a February 25,
2010 report, Dr. Nwaneri advised that appellant reached maximum medical improvement and
that she had been discharged from care. He opined that she had 73 percent right leg impairment
rating under the sixth edition of the A.M.A., Guides. Under Table 16-3, page 511, Dr. Nwaneri
stated that appellant had class 3 impairment for osteoarthritis and total knee replacement with a
fair result for an impairment rating of 43 percent. With regard to peripheral nerve impairment,
he utilized Table 16-2, page 533 and graded appellant’s weakness as 3+/5 to 4/5 of motor testing
of the lower extremity and classified her as a class 1 for sensory deficits, for a final lower
extremity impairment of 20 percent. With regard to range of motion, Dr. Nwaneri stated that,
under Table 16-23, page 549, appellant had terminal extension lag of 3 degrees and flexion
limited to 100 degrees, which gave a total lower extremity impairment of 10 percent. He
concluded that appellant had a diagnosis-based impairment of 43 percent, a peripheral nerve
impairment of 20 percent, and range of motion impairment of 10 percent, for a final combined
impairment of 73 percent of the leg.
In a March 23, 2010 report, an OWCP medical adviser reviewed appellant’s medical
record. He noted her work-related injury and that she underwent two surgeries. The medical
adviser also noted that appellant had previously been awarded 10 percent impairment. He

2

opined that appellant reached maximum medical improvement on February 9, 2010. The
medical adviser reviewed Dr. Nwaneri’s report and stated that it was not in keeping with the
sixth edition of the A.M.A., Guides as the physician rated both diagnosis-related estimates as
well as physical findings. He indicated that the diagnosis-related estimate is the most
appropriate method to rate patients who undergo total joint replacements. The medical adviser
agreed with Dr. Nwaneri’s findings that under Table 16-3, page 511 appellant is a class 3 with a
fair result which equates to 37 percent impairment. He noted that Dr. Nwaneri indicated that
appellant had 73 percent impairment to the lower extremity, which amounted to a class 4
impairment under Table 16-3 which is a very serve problem. The medical adviser stated that
appellant did not fit into a class 4 under Table 16-3 as Dr. Nwaneri indicated that she had a fair
result with her total knee replacement. He stated that, while appellant was entitled to a total 37
percent impairment to the right lower extremity, she should only receive an additional 27 percent
impairment as she was previously awarded 10 percent impairment.
In an April 6, 2010 report, the medical adviser again reviewed appellant’s medical
records. He stated that she initially underwent a partial medial and lateral meniscectomy on
February 3, 2005 and was awarded 10 percent right lower extremity impairment consistent with
the fourth, fifth and sixth editions of the A.M.A., Guides.3 The medical adviser stated that
appellant was now more than one year postoperation from her total knee replacement of
February 9, 2009 and thus the date of maximum medical improvement is February 9, 2010. He
indicated that, under Table 16-3, page 511, appellant rates a class 3 impairment for total knee
replacement or 37 percent impairment to the lower extremity. The medical adviser noted that
while Dr. Nwaneri indicated that appellant had 73 percent impairment, that rating would only be
appropriate if she had a poor result with severe instability and significant motion deficit or with a
chronic infection. He stated that appellant does not fit into this category (class 4) as she had a
fair result from her total knee replacement (class 3).
By decision dated June 10, 2011, OWCP found appellant was entitled to 37 percent total
right lower extremity impairment. As she previously received 10 percent award, she was paid 27
percent impairment. The award ran for 77.76 weeks of compensation for the period February 9,
2001 to August 7, 2011.
By appeal form postmarked August 9, 2011, appellant requested a review of the written
record by an OWCP hearing representative. New evidence was submitted. By decision dated
September 8, 2011, OWCP denied appellant’s request for a review of the written record as it was
untimely. It also denied his request on the basis that the issue in the case could be addressed by
requesting reconsideration from OWCP and submitting evidence not previously considered.4
LEGAL PRECEDENT

3

A.M.A., Guides 509, Table 16-3.

4

Appellant did not appeal this decision to the Board.

3

The schedule award provision of FECA5 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, 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 has been adopted by the implementing regulations as the appropriate standard
for evaluating schedule losses.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides is
used to calculate schedule awards.7 The claimant has the burden of proving that the condition
for which a schedule award is sought is causally related to his or her employment.8
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
FECA and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member.10 Benefits payable under section 8107(c) shall
be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.12
ANALYSIS

5

Supra note 1.

6

Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

Veronica Williams, 56 ECAB 367, 370 (2005).

9

A.M.A., Guides 494-531.

10

5 U.S.C. § 8101; 20 C.F.R. § 10.404(c).

11

20 C.F.R. § 10.404(c)(1), (2).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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Appellant has previously received a schedule award for 10 percent right lower extremity
following her February 3, 2005 arthroscopic surgery. On February 9, 2009 she underwent a total
knee replacement due to post-traumatic arthritis and subsequently requested an increased
schedule award. OWCP awarded 37 percent total right lower extremity impairment based on the
reports of its medical adviser. The Board finds that this issue is not in posture for decision.
In a February 25, 2010 report, Dr. Nwaneri opined that appellant reached maximum
medical improvement and had a total right lower extremity impairment of 73 percent. He based
this finding on the diagnosed-based impairment of osteoarthritis and total knee replacement as
well as physical findings pertaining to a peripheral nerve impairment and range of motion
impairment. However, diagnosis-based impairment is the primary method of evaluation for the
lower limb.13 Thus, an impairment rating cannot be based on both diagnosis-related estimates
and physical findings. Accordingly, OWCP properly referred the medical record to a medical
adviser for review.14
In his March 23 and April 6, 2010 reports, the medical adviser opined that under Table
16-3, page 511 appellant rated a class 3 for a total knee replacement or 37 percent right lower
extremity impairment. He explained that appellant fit into a class 3 impairment as opposed to a
class 4 impairment as Dr. Nwaneri indicated that she had a fair result from her total knee
replacement. However, the medical adviser failed to address any of the grade modifiers
described in section 16.3 after determining the class 3 impairment. Grade modifiers include
functional history, physical examination and clinical studies. Section 16.2, page 497 of the
A.M.A., Guides state that the grade modifiers are used in the net adjustment formula described in
section 16.3d to calculate a net adjustment. The final impairment grade is determined by
adjusting the grade up or down from the default value C, by calculated net adjustment.
Dr. Nwaneri indicated that appellant had range of motion as well as sensory and motor deficits.
OWCP’s medical adviser did not select any grade modifiers or apply the net adjustment formula
to determine whether these findings raised or lowered the impairment rating. Consequently, the
Board will remand the case for OWCP to obtain an additional report from its medical adviser or
such other specialist as it finds necessary.15 Following such further development as deemed
necessary, it shall issue an appropriate decision.
CONCLUSION

13

Section 16.2, page 497 A.M.A, Guides. However, peripheral nerve impairment can be combined with
diagnosed-based impairments when the diagnosis-based impairment does not already include nerve impairment. See
A.M.A., Guides 531. Dr. Nwaneri did not address whether nerve impairment was included in the diagnosis-based
impairment nor did he explain how he applied Table 16-12 and grade modifiers in rating peripheral nerve
impairment. Likewise, it was improper for Dr. Nwaneri to combine range of motion impairment with a diagnosisbased impairment as the A.M.A., Guides point out that range of motion impairment is only to be used as a standalone rating and only when other grids refer to the range of motion section. A.M.A., Guides 543.
14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
15

See J.B., Docket No. 08-1735 (issued January 27, 2009) (proceedings under FECA are not adversarial in
nature; OWCP shares in the responsibility to develop the evidence and has an obligation to see that justice is done).

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The Board finds that the case is not in posture for decision with regard to the schedule
award as an additional report from OWCP’s medical adviser is needed.

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ORDER
IT IS HEREBY ORDERED THAT the June 10, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: June 8, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF AGRICULTURE, FSIS,
Chattanooga, TN, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-1658
Issued: January 9, 2009

Oral Argument October 22, 2008

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

JURISDICTION
On May 23, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 5, 2008 wage-earning capacity decision. He also appealed a
May 1, 2008 decision which denied modification of the wage-earning capacity decision.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether the Office met its burden of proof in reducing appellant’s
compensation based on its determination that the constructed position of cashier II represented
appellant’s wage-earning capacity; and (2) whether the Office properly denied modification of
appellant’s loss of wage-earning capacity determination.
FACTUAL HISTORY
On July 27, 1983 appellant, then a 31-year-old food inspector, fell at work and injured his
low back. The Office accepted his claim for lumbar strain, intervertebral disc disorder with

myelopathy, internal derangement of the left lateral meniscus and expanded his claim to include
chronic pain syndrome. Appellant stopped work on July 27, 1983 and received appropriate
compensation benefits for all periods of disability.1
Appellant came under the treatment of Dr. C. Chandra, a Board-certified orthopedic
surgeon. On January 24, 1984 he underwent a lumbar myelogram which revealed extradural
defect at L4-5 consistent with central herniated disc. On February 18, 1985 Dr. Chandra
performed a posterior lateral fusion at L4 to S1 with foraminotomy bilaterally at L4-5 and L5-S1
and with discectomy at L4-5. He diagnosed bilateral facet hypertrophy at L4-5, L5-S1 with
encroachment on the neuroforamina bilaterally at L4-5 and L5-S1 upon spinal cord and nerve
root. Subsequently, Dr. Chandra noted that appellant developed bilateral knee pain, worse on the
left. On November 11, 1985 he performed left arthroscopic partial synovectomy with
debridement and resection of medial suprapatellar plica and diagnosed internal derangement of
the left knee with reactive synovitis, small suprapatellar plica and a small radial tear on the left
lateral meniscus. On January 9, 1998 Dr. Chandra performed an arthroscopy and chondroplasty
and extensive debridement of the left knee joint and diagnosed degenerative arthritis with gout
and pseudogout in the left knee. Thereafter, he treated appellant for traumatic osteoarthritis with
overlying gouty arthritis of the knees and degenerative disc disease.
Appellant was also treated by Dr. Paul A. Broadstone, an orthopedic surgeon. On
February 6, 1990 Dr. Broadstone performed a repair of pseudoarthrosis with L4-5 posterior
instrumentation and posterior spinal fusion and diagnosed pseudoarthrosis at L4-5. Later reports
from him noted appellant’s fusion at L4-5 failed and he recommended a repair of the
pseudoarthrosis. On March 23, 1995 Dr. Broadstone performed an anterior retroperitoneal
approach to L4-5 and L4-5 anterior discectomy with interbody fusion and diagnosed
pseudoarthrosis of L4-5. He continued to treat appellant for low back pain, diagnosing facet
arthropathy, postoperative lumbar spine, status post fusion and status post internal fixation at
L4-5.
On April 20, 2006 Dr. Chandra opined that appellant could perform a sedentary job with
limited standing and sitting.
On March 15, 2007 Dr. Broadstone recommended a functional capacity evaluation. On
March 30, 2007 appellant underwent a functional capacity evaluation which revealed that he was
classified in the medium strength level, with restrictions of lifting up to 30 pounds occasionally
and 15 pounds frequently and carrying up to 30 pounds occasionally and 15 pounds frequently,
frequent walking, occasional stooping/repeated bending, kneeling to the right only and no
crouching. In a June 15, 2007 report, Dr. Broadstone noted treating appellant for axial lumbar
pain, right lower extremity weakness and pain. He provided work restrictions based on the
functional capacity evaluation and noted appellant could work full time at modified duty as
tolerated.
On June 27, 2007 appellant was referred for vocational rehabilitation. In a September 17,
2007 rehabilitation plan, the rehabilitation counselor recommended a 90-day job placement plan
1

On December 8, 1993 the Office issued appellant a schedule award for 15 percent impairment of the left leg.

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and noted that appellant could perform medium physical demand category with restrictions of
lifting floor to knuckle and carrying of 30 pounds occasionally and 15 pounds frequently, with
positional restrictions of frequent walking, occasional stooping/repeated bending, kneeling to the
right knee only and no crouching. A rehabilitation plan was prepared and approved by the
rehabilitation counselor and appellant with the objective of obtaining a position of cashier II,
sales attendant, parking attendant and gate guard with average weekly wages of $302.00 for a
cashier II, $328.40 for a hotel clerk, $358.40 for a security guard. The counselor stated that these
jobs were within appellant’s educational capabilities based on vocational testing services. The
rehabilitation counselor noted that these positions were reasonably available in appellant’s
commuting area and attached job classification for the positions.
Appellant submitted an August 7, 2007 report from Dr. Chandra, who noted appellant
was doing well and diagnosed bilateral osteoarthritis secondary to trauma and left worse than
right, patellofemoral problems.
On October 17, 2007 the Office advised appellant that the rehabilitation plan was within
his work restrictions. The Office advised that the rehabilitation counselor’s vocational
evaluation and survey of the local labor market revealed a wage-earning capacity of $12,480.00
per year. The Office further advised appellant that at the end of the rehabilitation program,
whether employed or not, the Office would reduce his compensation.
Appellant submitted October 10 and November 1, 2007 reports from Dr. Broadstone,
who prescribed medication for lower extremity pain and for depression due to his work injury.
On December 19, 2007 Dr. Broadstone diagnosed facet arthropathy at L3-4 and status post
fusion and internal fixation at L4-5. He recommended appellant continue with restrictions
previously given and continue his home exercise program.
In vocational rehabilitation reports dated October 30 to December 31, 2007, the counselor
noted appellant had a felony conviction for conspiracy to commit arson and could not carry a gun
which might prohibit him from obtaining a security guard job.
Appellant submitted reports dated October 15 and December 20, 2007 from Dr. Chandra
for treatment of generalized soreness with tenderness around the knee cap. Dr. Chandra
diagnosed bilateral calcific menisci and mild arthritic changes.
In a vocational rehabilitation report dated January 15, 2008, the counselor noted that
appellant’s opportunities for employment were greatly reduced due to his age, lack of
transferable skills, length of unemployment and disabling conditions. He noted that had
appellant been motivated to return to work he would have been able to secure one of the
positions he was referred for during the job search. In an e-mail dated January 24, 2008, the
vocational rehabilitation counselor advised that appellant did not wish to continue the job search.
He noted that appellant’s efforts in the job search were not satisfactory as he did not follow up on
all job leads developed for him and was not motivated to find work.
In a January 29, 2008 closure memorandum, the rehabilitation counselor advised that an
updated labor market survey revealed the market was favorable for a cashier II, and that the

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positions were readily available in sufficient numbers both full and part time in appellant’s
commuting area. The average weekly wage of a cashier II, DOT No. 211.462.010 was $302.00.
The rehabilitation counselor noted that appellant was not interested in any training services
which might have provided skill enhancement. He reported identifying employers with suitable
jobs for appellant but appellant did not obtain employment. The rehabilitation counselor noted
that there were 415 annual job vacancies for cashiers with an entry level of $6.20 per hour, based
on a state labor market survey, which matched appellant’s qualifications and medical restrictions.
The counselor further noted that the position was consistent with the medical restrictions
provided by Dr. Broadstone and the functional capacity evaluation of March 30, 2007.
On January 31, 2008 the Office issued a proposed reduction of compensation finding that
the evidence established that appellant was partially disabled and had the capacity to earn wages
as a cashier II, at the rate of $248.00 per week. The Office noted that this position was in
compliance with Dr. Broadstone’s restrictions and the functional capacity evaluation. The Office
referenced the rehabilitation counselor’s report which determined that appellant would be
employable as a cashier II which reasonably represents his wage-earning capacity.
Appellant submitted a functional capacity report dated February 8, 2008 from a
vocational evaluator. He stated that it took him seven days to recover from the functional
assessment. The evaluator recommended short-term vocational training which would enable
appellant to work from home in a sedentary job. In a statement dated February 15, 2008,
appellant asserted that the Office failed to consider that he had a broken screw in his back and
had developed arthritis. He contended that he was unable to perform a job search but gave it his
honest effort and only had two interviews in 90 days. In a report dated February 7, 2008,
Dr. Chandra noted tenderness around the medial and lateral radius of the left knee with a mild
effusion. He injected appellant’s left knee with Marcaine and recommended arthroscopic
debridement.
In a March 5, 2008 decision, the Office adjusted appellant’s compensation to reflect his
wage-earning capacity as a cashier II effective March 16, 2008.
Appellant requested reconsideration on March 11, 2008. In a February 20, 2008 report,
Dr. William A. Wray, a clinical psychologist, diagnosed chronic pain disorder, seizure disorder
and depressive disorder. He concluded that due to pain, physical limitations, adverse medication
effects, sleep disruption problems and clinical depression appellant was not capable of
successfully engaging in sustained employment activity of any type. A March 18, 2008 report
from Dr. Broadstone noted appellant was unable to sit or stand for more than three hours at a
time due to his condition.
In a decision dated May 1, 2008, the Office denied modification of the March 5, 2008
decision.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
Under section 8115(a) of the Federal Employees’ Compensation Act,3 titled
“Determination of Wage-Earning Capacity” states in pertinent part:
“In determining
compensation for partial disability, the wage-earning capacity of an employee is determined by
his actual earnings if his actual earnings fairly and reasonably represent his wage-earning
capacity.” Generally, wages actually earned are the best measure of a wage-earning capacity and
in the absence of evidence showing they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.4 If the actual earnings do
not fairly and reasonably represent wage-earning capacity, or if the employee has no actual
earnings, his wage-earning capacity is determined with due regard to the nature of his injury, his
degree of physical impairment, his usual employment, his age, his qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect his wage-earning capacity in his disabled condition.5 Wage-earning capacity is a
measure of the employee’s ability to earn wages in the open labor market under normal
employment conditions.6 The job selected for determining wage-earning capacity must be a job
reasonably available in the general labor market in the commuting area in which the employee
lives.7 In determining an employee’s wage-earning capacity, the Office may not select a
makeshift or odd lot position or one not reasonably available on the open labor market.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitation,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.9 Finally, application of the principles set forth

2

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

3

5 U.S.C. § 8115.

4

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

5

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

6

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

7

Id.

8

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

9

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

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in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.10
ANALYSIS -- ISSUE 1
Appellant received compensation for total disability after his accepted conditions
precluded his return to work with the employing establishment. However, Dr. Broadstone,
appellant’s treating physician reviewed a functional capacity evaluation and advised that
appellant was not disabled for all work. Appellant was found capable of work in the medium
strength level, with restrictions of lifting up to 30 pounds occasionally and 15 pounds frequently
and carrying up to 30 pounds occasionally and 15 pounds frequently, frequent walking,
occasional stooping/repeated bending, kneeling to the right only and no crouching.
The Office referred appellant for vocational rehabilitation counseling. The vocational
counselor advised that appellant’s opportunities for employment were greatly reduced due to his
age, lack of transferable skills, length of unemployment, lack of motivation, failure to follow up
on leads and disabling conditions. After appellant was unable to secure employment, on
January 29, 2008 the vocational counselor identified the position of a cashier II, as work that
appellant would be capable of performing and which was available in his area.11 The vocational
counselor identified the position in the Department of Labor’s Dictionary of Occupational Titles,
DOT No. 211.462.010, and provided the required information concerning the position
description, the availability of the position within appellant’s commuting area and pay ranges
within the geographical area, as confirmed by state officials. He determined that the cashier II
position was in accord with appellant’s background, education, and experience.
The
rehabilitation counselor noted that the labor market survey revealed the market was favorable as
the cashier II was readily available in sufficient numbers both full and part time in appellant’s
commuting area. The average weekly wage of a cashier II was $248.00 per week with hiring
occurring regularly. The counselor further noted that the position was consistent with appellant’s
medical restrictions as set forth by Dr. Broadstone on June 15, 2007.
The Board finds that the Office met its burden of proof in reducing appellant’s
compensation based on his ability to earn wages as a cashier II. The medical evidence
establishes that appellant is capable of performing the duties required in the selected position of
cashier II. On June 15, 2007 Dr. Broadstone provided work restrictions based on the functional
capacity evaluation and noted that appellant could return to work full time, modified duty as
tolerated. The duties of the selected position conform with the recommended limitations. In a
subsequent report dated December 19, 2007, Dr. Broadstone recommended appellant continue
with the same physical restrictions. Other reports from Dr. Chandra, dated August 7 to
February 7, 2008, noted appellant was doing well and diagnosed bilateral osteoarthritis
10

Id. See Shadrick at 5 ECAB 376 (1953).

11

Where vocational rehabilitation is unsuccessful, the rehabilitation counselor will prepare a final report, which
lists two or three jobs which are medically and vocationally suitable for the employee and proceed with information
from a labor market survey to determine the availability and wage rate of the position. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.8(b)
(December 1995); see also Dorothy Jett, 52 ECAB 246 (2001).

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secondary to trauma and left worse than right and patellofemoral problems. However, these
reports do not establish that appellant was disabled of performing the duties required as a
cashier II.
The Board finds that the Office also considered the proper factors, such as availability of
suitable employment and appellant’s physical limitations, usual employment, and age and
employment qualifications, in determining that the position of cashier II represented appellant’s
wage-earning capacity. The weight of the evidence of record establishes that appellant had the
requisite physical ability, skill and experience to perform the position of cashier II and that such
a position was reasonably available within the general labor market of appellant’s commuting
area. The Office properly determined that the position of cashier II reflected appellant’s wageearning capacity and reduced appellant’s compensation effective March 16, 2008.
Appellant asserted that the Office failed to consider that he had a broken screw in his
back and had developed two types of arthritis. He further contended that he was unable to
perform a job search and that the stress and pain were more than he could bear. However,
appellant submitted no medical evidence to establish he was not qualified to perform the duties
of a cashier II. As noted, the medical evidence supports that he is physically capable of
performing the position as a cashier II and the rehabilitation counselor found that the position
was in accord with appellant’s background, education and experience. Appellant submitted a
functional capacity evaluation, dated February 8, 2008, in which the evaluator opined that based
on his situational assessment and subsequent pain it was questionable whether he could work a
public job. However, the question of whether appellant is medically able to work is a medical
question and the functional capacity evaluation is not from a physician.12 The evaluation also
fails to specifically address the position of cashier II.
The Board finds that the Office properly determined that the position of cashier II
reflected appellant’s wage-earning capacity effective March 16, 2008.
LEGAL PRECEDENT -- ISSUE 2
Once the loss of wage-earning capacity 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.13 The burden of proof is on the party
attempting to show modification of the award.14

12

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
13

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

14

James D. Champlain, 44 ECAB 438 (1993); Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

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ANALYSIS -- ISSUE 2
After the Office properly found that appellant could perform the duties of a cashier II, the
pertinent medical issue is whether there had been any change in his condition that would render
him unable to perform those duties.15 For a physician’s opinion to be relevant on this issue, the
physician must address the duties of the constructed position.16 However, medical evidence
submitted by appellant after the loss of wage-earning capacity determination did not sufficiently
explain why the duties of the position of cashier II were unsuitable.
On February 20, 2008 Dr. William A. Wray diagnosed chronic pain disorder, seizure
disorder and depressive disorder and opined that, due to pain, physical limitations, adverse
medication effects, sleep disruption problems and clinical depression, appellant was not capable
of successfully engaging in sustained employment activity of any type. However, the Office did
not accept that appellant developed depression as a result of his work injury and Dr. Wray did
not otherwise explain how it was due to the accepted back or knee conditions. The Board has
found that vague and nationalized medical opinions on causal relationship have little probative
value.17
On March 18, 2008 Dr. Broadstone noted that appellant was unable to sit or stand for
more than three hours at a time due to his condition. However, he did not provide sufficient
medical rationale explaining how any of appellant’s injury-related conditions would disable
appellant from a position of a cashier.18 Dr. Broadstone did not specifically address the duties of
the cashier II position or note any change in appellant’s injury-related condition that would
render him unable to perform the position of cashier. Therefore, these reports did not establish
that appellant could not perform the duties of a cashier II.
The Board finds that there is no medical evidence which establishes a change in
appellant’s employment-related condition such that a modification of the Office’s wage-earning
capacity determination would be warranted. The evidence from Dr. Wray and Dr. Broadstone
does not establish that the position of cashier II was improper. Appellant also did not otherwise
establish a basis for modification by submitting evidence establishing that he had been retrained
or otherwise vocationally rehabilitated, or that the original determination was, in fact, erroneous.
Consequently, he has failed to carry his burden of proof to establish modification of the wageearning capacity determination.

15

Phillip S. Deering, 47 ECAB 692 (1996).

16

Id.

17

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
18

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

8

CONCLUSION
The Board finds that the Office properly determined that the position of cashier II reflects
appellant’s wage-earning capacity effective March 16, 2008. The Board further finds that
appellant did not submit sufficient evidence, following the Office’s October 16, 2006 decision, to
modify the Office’s loss of wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 1 and March 5, 2008 are affirmed.
Issued: January 9, 2009
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF THE ARMY, U.S.
MILITARY ACADEMY, West Point, NY,
Employer
__________________________________________

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

Docket No. 21-1050
Issued: January 21, 2022

Case Submitted on the Record

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

JURISDICTION
On July 2, 2021 appellant filed a timely appeal from a June 7, 2021 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 established carpal tunnel syndrome (CTS) and ulnar
nerve palsy causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 1, 2021 appellant, then a 38-year-old chief cook, filed an occupational disease
claim (Form CA-2) alleging that she developed CTS and ulnar nerve palsy due to factors of her
1

5 U.S.C. § 8101 et seq.

federal employment, 2 including repetitive use of her hands while preparing, plating, and serving
large volumes of meals twice daily for 16 years. She reported worsening pain and numbness in
her hands, as well as frequent difficulty maintaining her grip on items. Appellant reported that she
first became aware of her condition on November 13, 2020 and of its relation to her federal
employment on February 23, 2021.
On November 13, 2020 appellant underwent a computerized tomography (CT) scan of her
right hand and wrist, which revealed mild polyarticular degenerative changes, intraosseous cystic
changes throughout the carpal bones, predominantly in the capitate and hamate. A CT scan of
appellant’s left hand and wrist, of even date, revealed mild polyarticular degenerative changes,
most prominent in the first carpometacarpal (CMC) joint, an ossific fragment along the ulnar side
of the first CMC joint, and intraosseous cystic changes throughout the carpal bones, predominantly
in the capitate and hamate.
In a February 22, 2021 referral note, Gina Cuneo-Ramos, a nurse practitioner, recounted
that appellant worked as a cook for the employing establishment and reported pain and swelling
in both hands and wrists. Ms. Cuneo-Ramos diagnosed bilateral swelling and pain in joints of the
hands.
In a March 4, 2021 work excuse note, Ms. Cuneo-Ramos advised that appellant should
remain out of work from March 4 through 18, 2021 for medical reasons.
OWCP also received appellant’s Standard Form (SF)-50 and position description, which
noted that appellant’s employment duties included various cooking and food preparation tasks
such as peeling, chopping, grinding, paring, cutting, slicing, dicing, pureeing, dredging, flouring,
and breading, as well as operating and cleaning kitchen equipment.
In a development letter dated March 23, 2021, OWCP advised appellant of the deficiencies
of her claim. It requested a narrative medical report from her treating physician, which contained
a detailed description of findings and diagnoses, explaining how her work activities caused,
contributed to, or aggravated her medical condition. OWCP afforded appellant 30 days to respond.
Appellant subsequently submitted a March 4, 2021 emergency room note signed by
Dr. Joseph Kaczmarek, a Board-certified physician specializing in emergency medicine, relating
appellant’s work history and symptoms. She reported numbness and tingling in the thumb, index
finger, and middle finger, as well as pain with use at home and at work. Dr. Kaczmarek diagnosed
CTS.
On March 9, 2021 appellant underwent a nerve conduction velocity (NCV) study, which
revealed abnormal findings.
2

The Board notes that, in her Application for Review (AB-1 Form), appellant reports she frequently worked shifts
from 3:00 a.m. until 8:00 p.m. Appellant also recounts that she was sexually assaulted, ridiculed, and forced to work
beyond her strength in her time working for the employing establishment. She notes that, as a result, she has developed
not only CTS and ulnar nerve palsy, but also anxiety, depression, and post-traumatic stress disorder (PTSD). As these
emotional conditions are not the subject of the current appeal and were not part of the record reviewed by OWCP, the
Board will not address them on this appeal. See 20 C.F.R. § 501.2(c).

2

In a March 16, 2021 note, Dr. Patel related that appellant experienced hand paresthesia in
both hands. He diagnosed bilateral CTS. Appellant was scheduled for a surgery on
March 25, 2021.
In an April 7, 2021 letter, Dr. Patel reported that appellant was “doing well following the
surgical release of the left carpal tunnel and left thumb trigger finger.” He further noted that, given
the work that appellant described, these conditions are “most likely” attributable to the repetitive
work. In a note dated April 8, 2021, Dr. Patel advised that appellant should be excused from work
until her reevaluation on April 21, 2021.
On April 19, 2021 OWCP received an unsigned attending physician’s report (Form CA20), affirmatively noting a history of preexisting injury, disease or physical impairment. Appellant
reported having surgery on March 25, 2021.
In an April 21, 2021 referral order, Dr. Patel referred appellant to occupational therapy for
12 visits over six weeks. He again diagnosed of bilateral CTS and trigger finger of the left thumb.
Dr. Patel provided appellant a work excuse note of even date.
By decision dated June 7, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her medical conditions were
causally related to the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) 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

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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

3

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish CTS and ulnar
nerve palsy causally related to the accepted factors of her federal employment.
In his April 7, 2021 letter, Dr. Patel reported that appellant was “doing well following the
surgical release of the left carpal tunnel and left thumb trigger finger.” He further noted that, given
the work that appellant described, these conditions are “most likely” attributable to the repetitive
work. While he provided an affirmative opinion suggestive of causal relationship, Dr. Patel did
not offer medical rationale sufficient to explain how appellant’s employment duties resulted in or
contributed to her diagnosed condition. Without identifying specific employment duties or
explaining how they caused or aggravated appellant’s conditions, Dr. Patel’s letter is of limited
probative value and is insufficient to meet appellant’s burden of proof.10
In medical notes dated March 16 and April 21, 2021, Dr. Patel diagnosed CTS, ulnar nerve
palsy, and trigger finger. Similarly, Dr. Kaczmarek’s March 4, 2021 emergency room note related
appellant’s work history and symptoms and diagnosed CTS. However, neither Dr. Patel nor
Dr. Kaczmarek offered an opinion on causal relationship. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship. 11 For these reasons, these reports are
insufficient to meet appellant’s burden of proof.
Appellant submitted a February 22, 2021 referral note and March 4, 2021 work excuse note
from Ms. Cuneo-Ramos, a nurse practitioner. The Board has held that medical reports signed
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

See A.P., Docket No. 19-0224 (issued July 11, 2019).

11

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

solely by a physician assistant, registered nurse, or medical assistant are of no probative value as
such healthcare providers are not considered physicians as defined under FECA and are, therefore,
not competent to provide medical opinions. 12 Consequently, their medical findings and/or
opinions will not suffice for the purpose of establishing entitlement to FECA benefits.
The remaining medical evidence consisted of a November 13, 2020 CT scans of appellant’s
hands and wrists and a March 9, 2021 NCV study. The Board has held, however, that diagnostic
testing reports, standing alone, lack probative value on the issue of causal relationship as they do
not address the relationship between the accepted employment factors and a diagnosed condition. 13
For this reason, this evidence is also insufficient to meet appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence establishin g that her CTS
and ulnar nerve palsy are causally related to the accepted factors of her federal employment, the
Board finds that she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish CTS and ulnar
nerve palsy causally related to the accepted factors of her federal employment.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners
are not considered physicians under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such
as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
12

13

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

5

ORDER
IT IS HEREBY ORDERED THAT the June 7, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 21, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-0975
Issued: March 10, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 11, 2021 appellant filed a timely appeal from a June 4, 2021 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 met her burden of proof to establish stress-related
conditions in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained a series o f conditions due to workrelated stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated
cholesterol, and diabetes. She indicated that she started working as a paralegal specialist for
the employing establishment on October 20, 2014. Appellant maintained that her supervisor,
L.M., created a stressful and hostile work environment over time, and indicated that there were
“Equal Employment Opportunity Commission (EEOC) issues.” She asserted that L.M. did not
like the way she communicated and asked her if she would quit her job. Appellant noted that
she first became aware of her claimed conditions on October 20, 2014 and first realized their
relation to her federal employment on July 31, 2018. She stopped work on July 17, 2017.
In a June 10, 2019 statement, appellant further discussed her claimed employment-related
conditions and again claimed that her work environment aggravated her health. She maintained
that L.M. intentionally exposed her to a hostile work environment and asked if she was going to
quit “due to circumstances surrounding my employment.”
Appellant submitted medical evidence in support of her claim, including reports of
Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified
family practitioner. She also submitted time and attendance summary reports from July and
September 2018.
In a June 25, 2019 development letter, OWCP notified appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence. In response, appellant asserted that L.M. treated her differently on purpose due to her
race and that the harassment was continuous. She claimed that L.M. retaliated against her for
filing an EEOC complaint in 2016.
Appellant submitted documents relating to the EEOC complaint she filed in 2016. In
the complaint, she claimed that in October 2015 she was improperly instructed not to take sick
leave for the rest of the year and that in December 2015 she was denied compensatory time.
Appellant also alleged that on December 24, 2015 L.M. accused her of “gaming the system” when
she tried to change her schedule and that on February 15, 2016 she wrongly did not receive holiday
pay. She further claimed that on March 1, 2016 she was approved for reasonable
accommodation that did not address her needs and that on March 30, 2016 L.M. called her
“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal
reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date
her work duties were wrongly reduced and her work was delegated to another employee.
2

Docket No. 20-1271 (issued March 9, 2021).

2

Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal
of a September 28, 2017 final decision denying her claims of discrimination. In this decision,
an EEOC official addressed each of her above-noted claims and found that it had been properly
determined in the prior decision dated September 28, 2017 that the employing establishment
did not subject her to discrimination or other wrongdoing. The official found that the employing
establishment provided reasonable accommodation to appellant for her bipolar disorder by
allowing her to change her schedule and that it appropriately handled matters relating to sick leave,
holiday pay, and compensatory time. The official indicated that the evidence revealed that L.M.
denied that she called appellant stupid on March 30, 2016 after appellant improperly sent out a
draft in portable document format (PDF), but that she indicated she might have commented that
it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was “gaming the system” on December 24, 2015, when appellant attempted
to change her schedule in the middle of a pay period to get more holiday time. She noted it was
established that on September 8, 2016 L.M, told appellant that she should be careful about what
she said to people. In addition, it was established that L.M. asked appellant whether she intended
to quit and that, when appellant stated that she did not, L.M. responded by saying, “Good.” The
official concluded that, when considering L.M.’s comments and actions in context, it had not been
shown that L.M. subjected appellant to discrimination or created a retaliatory or hostile work
environment. 3
By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related
emotional condition. It determined that she had not established a compensable employment factor.
On August 5, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that
L.M. threw a stapler at her on October 20, 2014. Appellant indicated that L.M. asked her whether
she was going to quit and asserted that her working conditions caused or worsened her medical
conditions.
After the hearing, additional documents were added to the case record, including the
employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive
absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017
affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10,
2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.
In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable accommodation to
appellant by approving appellant’s request regarding telework days. She noted that the human
resources office advised her that she could not approve appellant’s request to change appellant’s
schedule on short notice in order to receive pay for federal holidays. L.M. indicated that in
December 2015 appellant sent out a draft document as a PDF document despite the fact that such
documents are normally sent out in Microsoft Word format. She noted that she had a conversation
with appellant, who indicated that she had intentionally sent the document as a PDF document
because she thought it was a good idea. L.M. reported that she did not call appellant stupid
but might have stated that it would be stupid to send the draft in the wrong format. With regard to
appellant’s allegation that she was accused of “gaming the system” with respect to her request to
3

Appellant also submitted additional medical evidence in support of her claim.

3

change her work schedule, L.M. explained that she told appellant that it would be improper and
gaming the system, to change her schedule in the middle of a pay period in order to receive pay
for a holiday. She claimed that she treated appellant fairly with respect to leave matters.
In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,
appellant contested L.M.’s assertions with respect to schedule changes. She claimed that L.M.
did, in fact, call her stupid with respect to the matter involving the PDF document, and expressed
her belief that L.M. was accusing her of theft when she stated that she was gaming the system.
Appellant also generally contested L.M.’s assertions that she had properly handled matters relating
to leave usage and work assignments.
In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant
on September 8 and 15, 2016 and denied that she acted improperly. She noted that during the
September 15, 2016 meeting she advised appellant that she needed to be careful about what she
stated to people and consider their points of view. L.M. indicated that this comment was made
in the context of the other paralegal having felt that appellant made various accusations against her.
She also noted that, during this meeting, she asked appellant if she was considering quitting
because of the communication issues and overlapping schedule problems among the clerks.
When appellant indicated that she was not quitting, L.M. noted that she replied, “Good.” She
noted that she later apologized to appellant and told appellant that she was trying to speak
openly and plainly. L.M. indicated that she did not recall telling appellant that a certain work
assignment was none of her business.
In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that
a work assignment involving redaction of information was none of her business. She restated her
belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she
made improper comments about her communication skills.
The case record was also supplemented to include the original September 28, 2017 final
EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the
full evidentiary record did not establish that L.M. subjected appellant to discrimination or created
a retaliatory or hostile work environment. She found that the employing establishment provided
reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled
matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M.
explained that she reassigned some of appellant’s tasks to another employee because the work
schedule of that employee made it more suitable for her to perform those tasks. She indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated
that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was gaming the system, and that she should be careful about what she stated
to people. In addition, the EEOC decision established that L.M. asked appellant whether she
intended to quit and that, when appellant stated that she did not, L.M. responded by saying,
“Good.” The official concluded that, when considering L.M.’s comments and actions in context,
no improper actions were committed.

4

By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31,
2019 decision. Appellant appealed to the Board and, by decision dated March 9, 2021,4 the Board
affirmed the April 1, 2020 decision.
On March 9, 2021 appellant requested reconsideration of the denial of her emotional
condition claim. In support of her reconsideration request, she submitted two e-mails from the
Office of Personnel Management (OPM), a February 16, 2021 e-mail advising her that a disability
earnings survey had opened and a February 28, 2021 e-mail informing her that it had received her
response to an OPM disability eligibility survey. Appellant also submitted a March 11, 2020
notification of personnel action (Standard Form (SF) 50) memorializing her retirement from the
employing establishment on disability retirement. In an accompanying statement, she argued that
the fact that she retired on disability proved that managers committed wrongdoing and that she
was subjected to a hostile work environment.
By decision dated June 4, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 7
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 8
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
4

Supra note 2.

5

Supra note 1.

6

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
8

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 9 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 10
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors. 11 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors. 12
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, 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. 13 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence. 14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
The Board preliminarily notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 1, 2020 decision, which was considered by the
Board in its March 9, 2021 decision. Findings made in prior Board decisions are res judicata
absent further merit review by OWCP under section 8128 of FECA. 15
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at her place of work. Therefore, the Board must initially review whether these alleged
9

Lillian Cutler, 28 ECAB 125 (1976).

10

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

11

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

13

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

incidents and conditions are covered employment factors under the terms of FECA. The Board
notes that appellant’s claim does not directly relate to her regular or specially assigned duties
under Lillian Cutler.16 Rather, appellant claimed that her supervisor, L.M., committed error and
abuse with respect to various administrative/personnel matters. She also claimed that L.M.
subjected her to harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that L.M.
mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable
accommodation requests, and the assignment of work tasks. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.17 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.18 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably. 19
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted two e-mails from
OPM, a February 16, 2021 e-mail advising her that a disability earnings survey had opened, and a
February 28, 2021 e-mail informing her that it had received her response to an OPM disability
eligibility survey. She also submitted a March 11, 2020 SF 50 memorializing her disability
retirement from the employing establishment on disability retirement. Appellant argued that the
fact that she retired on disability retirement proved that managers committed wrongdoing.
However, this evidence would not in any way show that management committed error or abuse
with respect to administrative or personnel matters. Appellant has not otherwise presented
evidence, such as a final decision of an administrative body, to show that L.M. or other managers
committed error or abuse with respect to administrative or personnel matters.20 In addition, the
mere fact that appellant retired on disability retirement would not support her claims regarding
administrative/personnel matters. Although appellant expressed dissatisfaction with the actions of
L.M., the Board has held that mere dislike or disagreement with certain supervisory actions will
not be compensable absent error or abuse on the part of the supervisor. 21 Therefore, she has not
established a compensable employment factor with respect to administrative or personnel matters.
Appellant also alleged harassment and discrimination by L.M. and claimed that she created
a stressful hostile work environment. She asserted that L.M. treated her differently on purpose
16

See supra note 9.

17

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
18

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

19

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

20

See generally M.R., Docket No. 18-0304 (issued November 13, 2018).

21

T.C., Docket No. 16-0755 (issued December 13, 2016).

7

due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also
claimed that L.M. made comments and engaged in actions that rose to the level of harassment and
discrimination. To the extent that disputes and incidents alleged as constituting harassment are
established as occurring and arising from an employee’s performance of his or her regular duties,
these could constitute employment factors. 22 The Board has held that unfounded perceptions of
harassment do not constitute an employment factor.23 Mere perceptions are not compensable
under FECA and harassment can constitute a factor of employment if it is shown that the
incidents constituting the claimed harassment actually occurred.24
As noted above, appellant submitted February 16 and 28, 2021 e-mails from OPM and
a March 11, 2020 SF 50. She argued that the fact that she retired on disability retirement proved
that she was subjected to a hostile work environment. However, these docum ents do not
support appellant’s claims of harassment and discrimination and the mere f act that she
retired on disability retirement also would not support her claims of harassment/
discrimination . Appellant has not submitted sufficient documentary evidence to show that
L.M. subjected her to harassment or discrimination. 25 Therefore, she has not established a
compensable employment factor with respect to the claimed harassment and discrimination. As
the Board finds that appellant has not established a compensable employment factor, it is not
necessary to consider the medical evidence of record. 26
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 her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

22

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

See id.

25

See B.S., Docket No. 19-0378 (issued July 10, 2018).

26

See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors). See also Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

8

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.O., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Denham Springs, LA, Employer
__________________________________________

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)

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

Docket No. 15-561
Issued: May 8, 2015

Case Submitted on the Record

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

JURISDICTION
On January 21, 2015 appellant filed a timely appeal from a November 17, 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
hearing loss in the performance of duty.
FACTUAL HISTORY
On June 6, 2014 appellant, then a 65-year-old mine safety and health inspector
(metal/nonmetal), filed an occupational disease claim alleging that his loss of hearing was a

1

5 U.S.C. § 8101 et seq.

result of his federal employment. He stated that he first became aware of his condition on July 7,
2004 and that his loss of hearing occurred over time.2
OWCP received audiograms dated September 11, 1992, September 1, 1994, April 24,
1995, October 7, 1997, June 25, 1998, August 14, 2001, August 4, 2008, July 20, 2009, July 19,
and August 2, 2010, May 23, 2011, July 16, 2012, and July 12, 2013 along with several
audiogram history/reports which indicated that appellant was exposed to machines and heavy
equipment noise intermittently four, six, or eight hours per day.
In an August 2, 2010 report, Dr. James C. Walker, a Board-certified otolaryngologist,
noted that appellant worked as a mine inspector and presented with complaints of unspecified
hearing loss which had been a problem for the past two years. An audiogram was administered
and an assessment of sensorineural hearing loss was provided.
In a February 22, 2013 audiologist review report, Sarah E. Ervin reviewed appellant’s
audiograms from September 11, 1992 through July 16, 2012 and opined that he had bilateral low
frequency hearing loss. In the right ear, an age-corrected standard threshold shift occurred when
compared to the baseline.
In a June 19, 2014 statement, the employing establishment advised that since 1992
appellant had worked as an underground and surface mine inspector. As a mine inspector,
appellant had been subjected to a variety of differing noise levels and sources to include mobile
equipment, drills, channel burners, excavators, milling and rock crushing facilities, as well as a
variety of conveyances. The employing establishment stated that mine inspection work rarely
exposed the inspector to high noise levels for any length of time, noting that 20 percent of time
for inspection was for travel, 20 percent was for report writing, and the remaining 60 percent was
for time spent on a mining site. The average is no more than 6 hours per day, 5 days a week at a
mine site. During site inspections, the inspectors are not exposed to noise levels higher than 90
decibels for any length of time, especially if the inspector acted with prudence and wore hearing
protection. The employing establishment noted that hearing protection was provided and
encouraged.
In a hearing loss checklist, appellant related his employment history. He indicated that he
had audiograms when he first began working for the employing establishment in 1992 and his
last audiogram was July 12, 2013. In 2004 appellant was told that there was a shift in his hearing
and he noticed that his hearing had worsened. On July 12, 2013 he was told that he has a serious
hearing problem and that comment was made while his supervisor (Joseph Olivier) was present.
On July 9, 2014 OWCP informed appellant of the evidence needed to support his claim
and requested that additional factual and medical information be provided within 30 days. It also
requested that the employing establishment provide any treatment notes it may have for appellant
regarding his noise exposure.
In a July 14, 2014 statement, appellant responded to OWCP’s questionnaire.

2

On July 17, 2014 OWCP accepted the conditions of derangement right lateral meniscus, left medial meniscus
tear, and permanent aggravation of degenerative joint disease, right for appellant’s claim of January 8, 2013.

2

OWCP prepared a statement of accepted facts and referred appellant, along with the
medical record, to Dr. Robert G. Brousse, a Board-certified otolaryngologist, for a second
opinion to assess if he had sustained noise-induced hearing loss caused by his exposure to
hazardous noise during his federal employment. In an October 16, 2014 report, Dr. Brousse
reviewed the statement of accepted facts, appellant’s medical records including all audiometric
data, examined appellant, and conducted an audiological evaluation. He opined that appellant’s
mild-to-moderate sensorineural hearing loss was not due to noise exposure encountered in
federal employment. Dr. Brousse explained that appellant had high-frequency hearing loss prior
to his federal employment and that this hearing loss gradually worsened over 20 years. He also
explained that the workplace exposure was not sufficient as to intensity and duration to have
caused the hearing loss and noted that at the beginning of appellant’s exposure to noise in federal
employment, the audiometric data showed moderate noise dip at high frequency. Dr. Brousse
also noted that appellant has diabetes and hypertension by history.
By decision dated November 17, 2014, OWCP denied appellant’s hearing loss claim as
the medical evidence did not support that his hearing loss was causally related to workplace
noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation was claimed was causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim was predicated on a traumatic injury or an occupational disease.4
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.5 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.6
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;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the

3

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

4

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

5

Stanley K. Takahaski, 35 ECAB 1065 (1984).

6

See John W. Butler, 39 ECAB 852, 858 (1988).

7

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

3

presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable 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.10
ANALYSIS
It is not disputed that appellant was exposed to work-related noise while employed as a
mine safety and health inspector at the employing establishment. In its November 17, 2014
decision, OWCP denied his occupational disease claim and found that the medical evidence did
not establish a causal connection between his hearing loss and workplace noise exposure.
To further develop the claim, OWCP referred appellant to Dr. Brousse for a second
opinion evaluation. In his October 16, 2014 report, Dr. Brousse found that appellant had highfrequency hearing loss prior to his federal employment. The audiometric data showed moderate
noise dip at high frequency, and that this hearing loss gradually worsened over 20 years.
Dr. Brousse also explained that the workplace exposure was not intense enough or long enough
to have caused the hearing loss. He found no basis to attribute appellant’s hearing loss to his
workplace noise exposure.
Appellant has not submitted sufficient medical opinion evidence supporting that his
hearing loss was caused or aggravated by his workplace noise exposure. An August 2, 2010
audiogram conducted for Dr. Walker provided an assessment of sensorineural hearing loss.
However, Dr. Walker did not provide an opinion on causation. It is noted that the other
audiograms of record contained no identification or certification of the examiner. Audiologists
are not considered physicians under FECA.11 None of the audiograms appellant submitted were
accompanied by a physician’s report identifying the employment factors believed to have caused
or contributed to his hearing loss.
The Board finds that the medical evidence does not establish that appellant’s hearing loss
was caused or aggravated by work-related noise exposure. Accordingly, the Board finds that he
did not establish his claim.
8

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

9

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

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

Thomas O. Bouis, 57 ECAB 602 (2006). Section 8101(2) of FECA provides that physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law. 5 U.S.C. § 8101(2). See Joshua A. Holmes, 42 ECAB 231 (1990) (an
audiogram prepared by an audiologist must be certified by a physician before it can be used to determine hearing
loss).

4

On appeal, appellant states that it is hard for him to believe his hearing loss is not work
related because he was exposed to noise 8 to 12 hours per day, 40 hours per week. He has the
burden of establishing by reliable, probative, and substantial evidence that his hearing loss was
causally related to noise exposure in his federal employment.12 Neither the condition becoming
apparent during a period of employment, nor the belief of the employee, is sufficient to establish
causal relationship.13 In this case, appellant has not submitted sufficient medical opinion
evidence supporting that his hearing loss was caused or aggravated by his workplace noise
exposure.
Appellant may submit new evidence or argument as part of a formal 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 did not meet his burden of proof to establish that he
sustained hearing loss in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2015
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
12

See supra note 5.

13

See supra note 6.

5