United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Essex Junction, VT, Employer
__________________________________________

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

Docket No. 18-0801
Issued: November 26, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 6, 2018, appellant, through counsel, filed a timely appeal from a January 5, 2018
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 right elbow and
right knee conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 9, 2017 appellant, then a 49-year-old limited-duty automation clerk, filed an
occupational disease claim (Form CA-2) alleging that, on or before February 14, 2017, repetitive
reaching and lifting while processing mail caused right medial and lateral epicondylitis. She also
claimed that standing and walking on hard surfaces caused right knee pain. Appellant
acknowledged a history of right upper extremity and right knee problems, but related that her
occupational disease claim was for new injuries.3
By development letter dated March 28, 2017, OWCP advised appellant of the type of
factual and medical evidence needed to establish her claim, including a detailed description and
factual corroboration of the identified work factors, and a report from her physician explaining
how and why those tasks would cause the claimed injuries. It afforded her 30 days to provide such
evidence.
In response, appellant submitted an April 4, 2017 statement. She alleged that sweeping
letters, lifting trays, and sorting mail required repetitive twisting of her right elbow. Appellant
also asserted that prolonged standing on hard floors caused right knee pain. She asserted that the
employing establishment delayed issuing her an anti-fatigue mat from September 2016 to
January 2017, then forbade her from moving the mat between her work areas. Appellant noted
that she had received cortisone injections and physical therapy for prior right elbow and right knee
conditions.
The employing establishment provided an April 21, 2017 statement contending that
appellant was never required to work outside of her medical restrictions. It contended that “every
place that [appellant] was stationary she had mats or mats were available,” but that there were
areas that “could not have mats due to their layout.”
OWCP also received additional medical evidence. In a January 6, 2017 form report,
Dr. Curtis Healey, a chiropractor, diagnosed cervical, thoracic, and lumbar subluxations.

3
The present claim was assigned OWCP File No. xxxxxx735. Appellant filed a second Form CA-2 under this
same claim on April 11, 2017. She noted that the employing establishment had advised her that she could not claim
both a knee and elbow condition on the same form. On the reverse side of the claim form, the employing establishment
asserted that appellant was on light duty at the time she filed her claim. It noted that “[appellant’s] restrictions went
from 25[-pound] limit to a 15[-pound] limit.” On April 11, 2017 appellant filed a notice of traumatic injury (Form
CA-1) for a right elbow condition sustained while sweeping mail and lifting trays of mail on February 14, 2017.
OWCP assigned that claim OWCP File No. xxxxxx296. It denied the claim by decision dated August 18, 2017, which
in turn was affirmed by an OWCP hearing representative on April 27, 2018, as the medical evidence of record was
insufficient to establish causal relationship. OWCP administratively combined OWCP File Nos. xxxxxx735 and
xxxxxx296, with the latter serving as the master file number.

2

Dr. William J. Cove, an attending osteopathic physician Board-certified in internal
medicine and family practice, provided reports dated March 21, 2017. He documented appellant’s
account of right knee pain while at work in January 2017, and the onset of right elbow pain while
lifting trays of mail at work in February 2017. Dr. Cove diagnosed medial and lateral
epicondylitis, and probable chondromalacia or osteoarthritis of the knee. In an attending
physician’s report (Form CA-20) he checked a box marked “yes,” indicating that the diagnosed
conditions were caused or aggravated by an employment activity. Dr. Cove explained that
appellant’s “symptoms started while at work and they have been progressively aggravated by
work.” He administered corticosteroid injections to the right elbow and right knee. Dr. Cove
returned appellant to work as of March 22, 2017 with lifting limited to 15 pounds.
In a report dated March 29, 2017, Dr. John T. Braun, an attending Board-certified
orthopedic surgeon, related appellant’s account of new right shoulder and elbow pain
superimposed on a history of a right rotator cuff tear, right acromioclavicular arthritis, and right
tennis elbow. He noted that he had previously performed an anterior cervical discectomy and
fusion from C5 to C7.
In a report dated March 31, 2017, Dr. Christine Payne, an attending Board-certified family
practitioner, related that appellant experienced a flare of right lateral and medial epicondylitis
“after doing increased activities at work.” She held appellant off work from March 29 to April 1,
2017, then returned her to light duty for four hours a day, with lifting restricted to 15 pounds and
limited repetitive upper extremity motion. Dr. Payne noted that appellant could resume full-time
limited-duty work after one week of working four hours a day.
In a report dated April 18, 2017, Dr. Cove diagnosed medial and lateral epicondylitis of
the right elbow, right knee pain, and “probably some quadriceps tendinitis and some
chondromalacia.” He increased appellant’s work schedule from four to six hours a day and
maintained the 15-pound lifting limitation. Dr. Cove also directed that she perform “all her work
on the anti-fatigue mat.” He renewed these restrictions in a May 3, 2017 report.
By decision dated May 8, 2017, OWCP denied appellant’s claim. It accepted that the
identified work factors occurred as alleged, but denied the claim on causal relationship. OWCP
explained that the medical evidence submitted was insufficient to establish that the claimed right
elbow and right knee conditions were causally related to the accepted work factors.
In a letter postmarked on May 27, 2017, appellant requested a telephonic oral hearing
before an OWCP hearing representative. She submitted a May 4, 2017 statement contending that
the employing establishment required her to work outside of her medical restrictions and that they
provided conflicting instructions about the type of FECA claims she should file.
In a letter dated October 13, 2017, counsel requested that OWCP rescind its prior decision
and consider the present claim conjunctively with appellant’s traumatic injury claim under File
No. xxxxxx296 for a right elbow injury sustained on February 14, 2017.
During the hearing, held November 15, 2017, appellant noted that she underwent a cervical
spinal fusion on August 11, 2014, unrelated to her federal employment. She stated that she
sustained a shoulder injury on March 24, 2016 when she reached for a tray stacked on a cart.

3

Appellant alleged that the employing establishment had assigned her to stand six hours a day,
which exceeded a four-hour limitation due to right knee injuries sustained on February 14, 2017
and June 11, 2017. She noted that, after her February 14, 2017 right knee injury, she refused to
stand in an area that did not have an anti-fatigue mat.4 Appellant submitted additional evidence.
In a February 15, 2017 report, Alison Hobart, a nurse practitioner, noted appellant’s acute
right knee pain and diagnosis of right lateral epicondylitis.
In a report dated July 31, 2017, Dr. Cove related appellant’s account of the recent onset of
locking and grinding in the right knee. He noted that she “had to do more walking to visit son in
hospital and her new apartment has stairs she has to climb.” Appellant had missed work on July 27
and 28, 2017 due to right knee pain. Dr. Cove diagnosed right knee pain with probable quadriceps
tendinitis and chondromalacia.
In a report dated September 5, 2017, Dr. Cove noted appellant’s complaints of worsening
right knee pain. He diagnosed an acute exacerbation of right knee pain. Dr. Cove held appellant
off from work for that evening’s shift.
In a letter dated September 19, 2017, Dr. Cove related appellant’s account of right knee
pain commencing in late January 2017, which she attributed to standing on a hard, unpadded floor
at work. Appellant also reported right elbow pain beginning in early February 2017, which she
attributed to “repeatedly lifting trays of mail” while at work. Dr. Cove diagnosed “a knee pain
syndrome due to chondromalacia and tendinitis” and right medial and lateral epicondylitis. He
treated both conditions with steroid injections. Dr. Cove opined that “[d]ue to temporal
relationship of the onset of both [appellant’s] painful injuries while doing her job and progressive
worsening” each day appellant went to work, he believed that these were “work[-]related
problems.”
By decision dated January 5, 2018, an OWCP hearing representative affirmed OWCP’s
May 8, 2017 decision. He found that the additional medical evidence submitted was insufficient
to establish causal relationship between the accepted work factors and the claimed right knee and
right elbow conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial

4
On December 7, 2017 the employing establishment submitted comments to the hearing transcript. It contended
that the employing establishment’s floor was made of asphalt planking, a “comfort walk flooring system.” The
employing establishment also asserted that appellant was permitted to sit on a stool while processing manual letters,
and that she was not required to work beyond her medical restrictions.
5

See supra note 2.

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evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 Physician’s opinion on whether there is causal relationship between
the diagnosed condition and the implicated employment factor(s) must be based on a complete
factual and medical background.9 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).10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish right elbow and
right knee conditions causally related to the accepted factors of her federal employment.
OWCP received reports from Dr. Cove, an attending Board-certified internist and family
practitioner. In a Form CA-20 dated March 21, 2017, Dr. Cove checked a box marked “yes”
indicating that his support for causal relationship as appellant’s symptoms arose and were
aggravated by work. Although the “yes” checkmark indicates support for causal relationship, the
Board has held that when a physician’s opinion on causal relationship consists only of a checkmark
on a form, without more by way of medical rationale, the opinion is of diminished probative
value.12 In a September 19, 2017 letter, Dr. Cove opined that as appellant’s right knee and right
6

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Robert G. Morris, 48 ECAB 238 (1996).

9

Supra note 7.

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12

See C.D., Docket No. 17-0292 (issued June 19, 2018).

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elbow symptoms began and increased while she was at work, they were “work-related problems.”
The Board finds that he based his support for causal relationship on the temporal relationship
between the onset of her symptoms and repetitive upper extremity motions and prolonged standing
at work. The Board has held that the fact that a condition manifests itself during a period of
employment is insufficient to establish causal relationship.13 Temporal relationship alone will not
suffice.14 Dr. Cove’s reports did not include sufficient medical rationale explaining how the
accepted work duties either caused or contributed to appellant’s conditions.
Additionally, Dr. Cove failed to address appellant’s history of prior right knee and elbow
conditions. He did not appear to be aware of her cervical fusion or prior right upper extremity and
right knee injuries and conditions. Dr. Cove’s conclusion on causal relationship is not supported
by an accurate history. It is well established that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.15 For these reasons, the Board finds that the
evidence from Dr. Cove is insufficient to establish that appellant’s diagnosed conditions are
causally related to repetitive lifting or prolonged standing at work.
In his March 29, 2017 report, Dr. Braun related appellant’s pain complaints and her
diagnoses. He however did not offer a medical opinion regarding causal relationship. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.16
Likewise, Dr. Payne, an attending Board-certified family practitioner, related appellant’s
account of a flare of right lateral and medial epicondylitis due to unspecified work tasks. As she
did not provide a rationalized opinion regarding causal relationship, her opinion is of limited
probative value.17
Appellant submitted a January 6, 2017 form report from chiropractor Dr. Healey. As
Dr. Healey did not indicate that he diagnosed spinal subluxations by x-ray, he is not considered a
physician under FECA for the purposes of this case, and his opinion is of no probative medical
value.18 Similarly, OWCP also received a report from a nurse practitioner. The Board has held
that reports from a nurse practitioner lack probative value as healthcare providers such as physician
13

20 C.F.R. § 10.115(e).

14

M.B., Docket No. 17-0780 (issued July 9, 2018).

15

R.C., Docket No. 17-0643 (issued July 23, 2018); Douglas M. McQuaid, 52 ECAB 382 (2001).

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17

See R.C., supra note 15.

18

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
This section defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. Section 8101(3) of FECA,
which defines services and supplies, limits reimbursable chiropractic services to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the
Secretary. 5 U.S.C. § 8101(3). See Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams, 44 ECAB
530 (1993).

6

assistants, physical therapists, and nurse practitioners are not considered physicians as defined
under FECA.19
As there is no rationalized medical evidence of record explaining how appellant’s
employment duties caused or aggravated a medical condition involving her right elbow or right
knee, the Board finds that she has not met her burden of proof.
On appeal, counsel contends that OWCP’s January 5, 2018 decision is contrary to fact and
law. As noted above, the medical evidence of record contains insufficient rationale to meet
appellant’s burden of proof to establish causal relationship.
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 right elbow and
right knee conditions causally related to the accepted factors of her federal employment.

19

See 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); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). S.J., Docket No. 17-0783, n. 2
(issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).

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ORDER
IT IS HEREBY ORDERED THAT the January 5, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

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

Docket No. 10-464
Issued: November 18, 2010

Case Submitted on the Record

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

JURISDICTION
On December 8, 2009 appellant, through her attorney, filed a timely appeal from June 30
and October 1, 2009 merit decisions of the Office of Workers’ Compensation Programs denying
her claim for disability compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant is entitled to compensation for intermittent wage
loss from September 1, 2007 through April 22, 2008; and (2) whether she established a
recurrence of disability on April 30, 2008 causally related to her September 1, 2007 work injury.
FACTUAL HISTORY
On November 28, 2007 appellant, then a 34-year-old mail processing clerk, filed an
occupational disease claim alleging that she sustained right ulnar neuropathy causally related to
factors of her federal employment. She did not stop work. The Office accepted the claim for
ulnar neuropathy of the right elbow.

On October 29, 2007 Dr. Scott M. Fried, an osteopath, discussed appellant’s history of
performing repetitive work duties for the employing establishment over the past nine years. He
noted that she had ulnar nerve symptoms that she believed were progressively worsening as she
tried to work her regular full duty. Dr. Fried diagnosed a subluxing ulnar nerve of the right
elbow due to repetitive work activities, right ulnar and radial neuropathy and brachial plexitis.
He advised that appellant could perform sedentary work with no use of the right arm, no
repetitive work and no lifting over five pounds. On December 14, 2007 Dr. Fried provided work
restrictions in accordance with the functional capacity evaluation.
On December 18, 2007 appellant accepted a sedentary position with the employing
establishment with restrictions on no use of the right arm, no repetitive activity and casing letters
within her restrictions.
On January 23, 2008 Dr. Fried found that appellant could continue working modified
duty and requested a chair with a back support. In a report dated March 19, 2008, he discussed
her complaints of pain and tension in the neck, right shoulder and particularly the ulnar elbow on
the right side. Dr. Fried stated:
“[Appellant] remains symptomatic and disabled and continues to note overuse
symptoms on the left. If she is to continue working this current modified position,
she really needs an ergonomic chair with back support. [Appellant] must also be
provided frequent breaks and self[-]pacing for even the left arm, [b]ut, I would
really prefer a more suitably modified position for her, perhaps a trial at nixies.
For now, she may continue as tolerated but we will decrease her hours to six a
shift.”
In a form report dated April 9, 2008, Dr. Fried indicated that appellant was
partially disabled from September 1, 2007 through April 22, 2008 and checked “yes” that
the condition was caused or aggravated by employment.
On April 26, 2008 appellant filed a claim for compensation for intermittent time lost from
work from September 1, 2007 through April 22, 2008. In an attached leave analysis she claimed
222.09 hours lost from work due to pain and inflammation.
In a report dated May 5, 2008, Dr. Fried discussed appellant’s complaint of pain in her
right elbow. He stated:
“[Appellant] continues to work part-time, six-hour days at the [employing
establishment], casing left handed. Despite our request to by something more
appropriate in relation to her injuries, such as nixies, there have been no further
changes made at work. [Appellant] has still not been provided an ergonomic
chair either despite our last request. Again, her symptoms are aggravated by her
activities at work and she actually has been out of work since Friday, May 2
because of elevated symptoms.”

2

In an accompanying disability certificate, Dr. Fried advised that appellant was out of
work beginning May 2, 2008 because of her upper extremity injury and that she would “remain
out of work to focus on rest [and] healing.”1
On June 4, 2008 the Office requested that appellant submit additional evidence
supporting her claim for intermittent disability from September 1, 2007 to April 22, 2008.
On June 5, 2008 Dr. Fried found that appellant was totally disabled from May 2 to
June 25, 2008 and partially disabled from April 22 to May 31, 2008. He did not provide a
diagnosis or opinion on causation.
By decision dated July 7, 2008, the Office denied appellant’s claim for compensation
from September 1, 2007 to April 22, 2008.
On July 9, 2008 her attorney requested an oral hearing.
In a disability certificate dated July 30, 2008, Dr. Fried related that appellant “has been
out of work to focus on rest [and] healing her upper extremity injury.2 We are looking toward
getting approved for surgery. In the meantime, we are happy to review any appropriate lightduty job description.”
On September 3, 2008 appellant filed a notice of recurrence of disability on May 2, 2008
causally related to her September 1, 2007 work injury. She related that her condition worsened
due to her light-duty assignment and noted that she sustained a reaction to an ulnar nerve
injection on May 5, 2008.
On September 11, 2008 a claims examiner authorized right ulnar nerve surgery but
denied other procedures to be performed as part of the same surgery. By letter dated
September 11, 2008, the Office requested additional information regarding appellant’s
recurrence of disability, including a comprehensive report from her attending physician
describing the objective evidence that showed that she was unable to perform her modified duty.
On October 9, 2008 appellant related that she sat for six hours a day on a stool in her
limited-duty assignment. The employing establishment did not provide her with an ergonomic
chair or a more suitable assignment as requested by her physician. Appellant’s right arm
worsened and she began having problems with her left arm because she was overcompensating
for the injured right arm.
By decision dated November 14, 2008, the Office found that appellant did not establish
an employment-related recurrence of disability beginning April 30, 2008.

1

On May 12, 2008 Dr. Fried noted that appellant was off work due to her injuries and gave her an injection. On
May 21, 2008 he noted that she had sustained a reaction to the injection without infection.
2

On June 25, 2008 Dr. Fried evaluated appellant for continuing complaints of right ulnar nerve pain and noted
that she was not working due to her injuries. He discussed possible right ulnar nerve surgery. On July 23, 2008
Dr. Fried again noted that appellant was out of work due to her injuries and that her symptoms had improved since
stopping work. He listed findings on examination, diagnosed a subluxing ulnar nerve of the right elbow due to
repetitive work activities. Dr. Fried recommended surgery.

3

In a progress report dated Novembers 3, 2008, received by the Office on November 17,
2008, Dr. Fried discussed appellant’s complaints of pain in the right ulnar nerve.3 He advised
that she was not working due to her injuries. Dr. Fried noted that he had requested additional
modifications or a different light-duty position as the last one aggravated her condition. He
related that appellant tried to work six hours per day in her modified position but did not have an
ergonomic workstation or provided with breaks. Appellant stopped work on May 2, 2008 due to
“elevated symptoms since no further accommodations/modifications were made for her. She has
not returned to work yet as we have never received any other light-duty job descriptions despite
our multiple requests.”
On November 18, 2008 appellant, through her attorney, requested an oral hearing. On
November 20, 2008 a hearing was held regarding the Office’s July 7, 2008 decision denying her
request for compensation for intermittent disability from September 1, 2007 through
April 22, 2008. Appellant described her elbow condition and her work restrictions. She
contended that her employer did not provide her with an ergonomic chair or frequent breaks.
Appellant did all the work with her left hand and began to have symptoms of carpal tunnel
syndrome on the left. She attended physical therapy but did not miss time from work because
she was working nights and scheduled her appointments on her days off. Appellant began
working six hours per day around March 19, 2008 but her arm continued to worsen.
By decision dated February 4, 2009, the Office hearing representative affirmed the July 7,
2008 decision denying appellant’s claim for intermittent periods of disability from September 1,
2007 through April 22, 2008.4
A hearing was held on March 18, 2009 regarding the Office’s finding that appellant did
not sustain a recurrence of disability. She reiterated the employing establishment’s failure to
provide her with an ergonomic chair or a chair with armrests. Appellant experienced increase
pain and Dr. Fried took her off of work. For a month she had increased symptoms after a
reaction to an ulnar nerve injection.
On April 2, 2009 appellant, through her attorney, requested reconsideration of the
February 4, 2009 decision.5
By decision dated May 7, 2009, the hearing representative affirmed the November 18,
2008 decision. He noted that appellant attributed her condition to her limited-duty work which
showed a possible new occupational disease rather than a spontaneous recurrence of disability.
On June 8, 2009 appellant, through her attorney, requested reconsideration of the
February 4, 2009 decision. In a report dated May 29, 2009, Dr. Fried related that appellant did
not sustain a new injury to her ulnar nerve but instead “progressively worsened with respect to
this injury as is common once there is permanent scarring about the nerve. In fact, the report
3

In a progress report dated December 1, 2008, Dr. Fried discussed appellant’s increased symptoms.

4

In a progress report dated February 4, 2009, Dr. Fried noted that appellant’s symptoms had somewhat subsided.
On March 30, 2009 Dr. Fried noted that she wanted to return to work but had not received limited-duty job offers.
5

In a disability certificate dated April 13, 2009, Dr. Fried noted that appellant was out of work to heal her upper
extremity injuries and asked for surgical approval. He indicated that he would review a limited-duty job offer. On
April 29, 2009 Dr. Fried again noted that he was awaiting approval for surgery.

4

referenced in your letter indicates that there is progressive atrophy. This is consistent with the
progression of the [September 2007] work injury to the ulnar nerve.” Dr. Fried advised that
appellant could have permanent loss of function given the delay in surgical approval. He
concluded, “Her present problem is a progression of the initial work injury and though her work
activities are contraindicated and do worsen the problem, this is not new injury per se, rather
progression of the already well-documented ulnar nerve pathology.”
By decision dated June 30, 2009, the Office denied modification of its February 4, 2009
decision denying compensation for intermittent wage loss.
On September 4, 2009 appellant, through her attorney, requested reconsideration of the
May 7 and June 30, 2009 decisions.6 He asserted that Dr. Fried’s May 20, 2009 report
established that appellant sustained a recurrence of disability beginning May 2, 2008.
By decision dated October 1, 2009, the Office denied modification of its prior decisions
of February 4, May 7 and June 30, 2009. It determined that the medical evidence remained
insufficient to show either that appellant sustained intermittent disability from September 1, 2007
to April 22, 2008 or a recurrence of disability beginning April 30, 2008 due to her accepted work
injury.
On appeal, counsel contends that the medical reports are sufficient to show that appellant
experienced disability due to her employment injury and sustained a recurrence of disability
beginning May 2008.
LEGAL PRECEDENT -- ISSUE 1
The term disability as used in the Federal Employee’s Compensation Act7 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.8 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.9 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.10 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.11
6

The record contains progress reports from Dr. Fried dated June through September 2009.

7

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

8

Sandra D. Pruitt, 57 ECAB 126 (2005); Paul E. Thams, 56 ECAB 503 (2005).

9

Id.

10

Id.

11

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52
ECAB 291 (2001).

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ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained right ulnar neuropathy due to factors of her
federal employment. She began working limited duty within the restrictions outlined by
Dr. Fried in his report of October 29, 2007 of no work with the right hand, no repetitive work
and not lifting over five pounds. On April 26, 2008 appellant filed a claim requesting
compensation for intermittent time lost from work from September 1, 2007 through April 22,
2008 due to pain and inflammation.
On October 29 and December 18, 2007 Dr. Fried listed work restrictions. He did not,
however, find any periods of disability. As discussed, the Board will not require the Office to
pay compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.12
On January 23, 2008 Dr. Fried requested that the employing establishment provide
appellant with a chair with back support. On March 19, 2008 he found that she had increased
symptoms in her neck, right shoulder and ulnar elbow. Dr. Fried requested that the employing
establishment provide appellant with an ergonomic chair and breaks and, if possible, another
position. He found that she could continue in her modified position but only for six hours per
day. Dr. Fried, however, did not explain why appellant required an ergonomic chair and breaks
or provide rationale for his finding that she was unable to perform the duties of her modified
position for more than six hours per day. A medical report is of limited probative value on a
given medical question if unsupported by medical rationale.13
In an April 9, 2008 form report, Dr. Fried found that appellant was partially disabled for
September 1, 2007 through April 22, 2008. He checked “yes” that the condition was caused or
aggravated by employment. The Board has held, however, that when a physician’s opinion on
causal relationship consists only of checking “yes” to a form question, without explanation or
rationale, that opinion has little probative value and is insufficient to establish a claim.14
On appeal counsel contends that Dr. Fried’s reports are sufficient to show that she
sustained disability from employment. As noted, however, Dr. Fried did not provide adequate
rationalized medical opinion explaining why she was disabled from work for any period from
September 1, 2007 through April 22, 2008. Consequently, appellant has not met her burden of
proof.
LEGAL PRECEDENT -- ISSUE 2
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
12

Id.

13

T.F., 58 ECAB 128 (2006); Jacquelyn L. Oliver, 48 ECAB 232 (1996).

14

D.D., 57 ECAB 734 (2006); Deborah L. Beatty, 54 ECAB 3234 (2003).

6

disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.15
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.16 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.17
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained ulnar neuropathy of the right elbow due to
factors of her federal employment. Appellant began working limited-duty employment. She
stopped work on April 30, 2008 and filed a notice of recurrence of disability due to her
employment injury.
Appellant has not alleged a change in the nature and extent of her light-duty job
requirements. Instead, she attributed her recurrence of disability to a change in the nature and
extent of her employment-related conditions. Appellant must thus provide medical evidence
establishing that she was disabled due to a worsening of her accepted work-related conditions.18
On May 5, 2008 Dr. Fried discussed his request that the employing establishment provide
appellant with a more appropriate position and an ergonomic chair. He asserted that her work
duties aggravated her symptoms and indicated that “she actually has been out of work since
Friday, May 2, [2008] because of elevated symptoms.” Dr. Fried, however, did not explain what
specific work duties caused appellant’s increased symptoms or why she was unable to perform
the duties of her position. Additionally, he attributed her condition to her modified duties rather
than her work injury. A recurrence of disability, however, is a work stoppage caused by “a
spontaneous change in a medical condition which has resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the
illness.”19 To the extent that Dr. Fried found that appellant’s condition was aggravated by
employment duties, any disability resulting from the alleged aggravation would be considered a
new injury and not a recurrence as defined by the regulations.20
15

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

16

20 C.F.R. § 10.5(x).

17

Id.

18

See Jackie D. West, supra note 15.

19

20 C.F.R. § 10.5(x).

20

See Cecelia M. Corley, 56 ECAB 662 (2005).

7

In a form report dated June 5, 2008, Dr. Fried found that appellant was totally disabled
from May 2 to June 25, 2008. He did not provide a causation finding or diagnosis, however, and
thus his opinion is of little probative value.
On July 30, 2008 Dr. Fried indicated that appellant was not working in order to rest and
facilitate healing. He noted that he would review an appropriate modified-duty position.
Dr. Fried did not explain why she was disabled from her previous limited-duty assignment other
than to note that she was resting and healing. The issue of whether a claimant’s disability is
related to an accepted condition is a medical question which must be established by a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disability is causally related to employment factors and supports that conclusion with sound
medical reasoning.21
In a report dated November 3, 2008, Dr. Fried noted that appellant experienced right
ulnar nerve pain. She “came out of work” on May 2, 2008 because of increased symptoms after
her job was not further modified. Dr. Fried opined that appellant could not return to her previous
position because it was aggravating her condition. He did not explain how the work aggravated
the accepted injury and thus his opinion is of diminished probative value.22 Dr. Fried also
attributed her increased symptoms to the work duties in her limited-duty position. As discussed,
a recurrence of disability does not include disability resulting from exposure to new work
factors, even if it involves the same part of the body previously injured.23
On May 29, 2009 Dr. Fried related that appellant’s ulnar nerve injury progressively
worsened due to scarring and that she did not sustain a new injury. He attributed the progression
of her ulnar nerve condition to her September 2007 employment injury. Dr. Fried, however, did
not address the relevant issue of whether appellant was disabled from her modified position
beginning April 30, 2008. Consequently, his report is insufficient to meet her burden of proof.
On appeal appellant’s attorney argues that Dr. Fried’s reports are sufficient to show that
she sustained a recurrence of disability. An award of compensation, however, may not be based
on surmise, conjecture, speculation, or upon appellant’s own belief that there is a causal
relationship between her claimed condition and his employment.24 Appellant must submit a
physician’s report in which the physician reviews those factors of employment identified by her
as causing his condition and, taking these factors into consideration as well as findings upon
examination and the medical history, explain how employment factors caused or aggravated any
diagnosed condition and present medical rationale in support of his or her opinion.25 She failed
to submit such evidence and therefore failed to discharge her burden of proof.

21

See Sandra D. Pruitt, supra note 8.

22

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

23

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(2)
(May 1997).
24

George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

25

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

8

CONCLUSION
The Board finds that appellant is not entitled to compensation for intermittent wage loss
from September 1, 2007 through April 22, 2008. The Board further finds that she has not
established a recurrence of disability on April 30, 2008 causally related to her September 1, 2007
work injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 1 and June 30, 2009 are affirmed.
Issued: November 18, 2010
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR SHIP YARD, Pearl Harbor, HI,
Employer
__________________________________________

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

Docket No. 09-2357
Issued: July 7, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from an August 5, 2009 merit
decision of the Office of Workers’ Compensation Programs denying a schedule award for a loss
of hearing. 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 appellant has a ratable hearing loss entitling him to a
schedule award; and (2) whether the Office properly exercised its discretion in denying hearing
aids.
On appeal, appellant contends that he sustained greater hearing loss than found on
audiometric testing performed by a physician and that he should be referred for another hearing
test.

FACTUAL HISTORY
On December 23, 2008 appellant, then a 60-year-old ship tank tester, filed an
occupational disease claim (Form CA-2) alleging that he sustained a hearing loss caused by
working near noisy cranes and other heavy machinery, as well as working inside a submarine.
He submitted audiograms dated November 13, 1985 through December 15, 2008 and a record of
audiograms dating back to January 30, 1981.
The Office referred appellant to Dr. Meredith Pang, a Board-certified otolaryngologist,
for a second opinion evaluation of his hearing loss. In a March 23, 2009 report, Dr. Pang
discussed the results of a March 23, 2009 audiogram, which revealed bilateral mild high
frequency sensorineural hearing loss. Speech reception thresholds, which reflect understanding
of conversional speech, were within the normal range at 5 decibels (dB) on the right and 5 dB on
the left. Speech discrimination scores, reflecting word understanding at higher frequencies, were
within the normal range at 100 percent on the right and 98 percent on the left. Dr. Pang stated
that the audiometric test results were not completely reliable and she suspected appellant’s
hearing might be slightly better based on the differences in the pure tone averages and speech
reception thresholds. She advised that, using the frequencies at 500, 1000, 2000 and 3000 hertz
(Hz), appellant had a hearing loss of zero percent on the left, right and bilaterally. An audiogram
dated March 23, 2009, with an attached calibration certificate, showed hearing levels of 20, 15,
10 and 10 dB on the right and 15, 25, 5 and 5 dB on the left at 500, 1000, 2000 and 3000 Hz,
respectively.1
On April 27, 2009 the Office requested that Dr. Pang provide a report clarifying the
reliability of the audiogram.
In a May 18, 2009 report, Dr. Pang found that appellant’s workplace noise exposure was
sufficient in intensity and duration to have caused his hearing loss. Although the March 23, 2009
audiometric tests were not completely reliable, as she suspected that his hearing might be slightly
better than the results, the audiograms were performed within the American National Standards
Institute’s standards and she believed them to be accurate. Dr. Pang advised that appellant did
not require hearing amplification.
By decision dated June 3, 2009, the Office accepted appellant’s claim for bilateral
hearing loss.
It forwarded Dr. Pang’s report and the March 23, 2009 audiogram to Dr. Brian Schindler,
a Board-certified otolaryngologist, for an impairment rating in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).2 In a June 27, 2009 report, Dr. Schindler found that appellant did not sustain
1

Dr. Pang indicated that the test was repeated as appellant was initially only providing half-word responses
during the speech reception threshold test and that there were inconsistencies between the pure tone averages and
speech reception thresholds. She stated that the reliability was improved on reinstruction, however, the results
appeared to be slightly elevated compared to the speech reception threshold.
2

(6th ed. 2009).

2

a ratable hearing loss. Using the March 23, 2009 audiogram, he added up and averaged
appellant’s hearing levels at 500, 1000, 2000 and 3000 Hz in the right ear, which were 20, 15, 10
and 10 dB, respectively, to find an average of 13.75. Dr. Schindler subtracted out the 25-decibel
fence to find a balance of zero, which he multiplied by 1.5 to find that appellant did not sustain a
ratable monaural loss on the right. He added and averaged appellant’s hearing levels at 500,
1000, 2000 and 3000 Hz on the left, which were 15, 25, 5 and 5 dB, to find an average of 12.5.
Dr. Schindler subtracted out the 25-decibel fence and multiplied the zero balance by 1.5 to find
that appellant did not have a ratable monaural loss on the left. He advised that appellant did not
sustain a ratable binaural loss and that hearing aids were not authorized.
By decision dated August 5, 2009, the Office denied appellant’s claim for a schedule
award as the reports from Dr. Pang and Dr. Schindler did not establish a ratable hearing loss
under the A.M.A., Guides. It also found that he did not require hearing aids.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss of use of specified members, organs or functions of the body,
including hearing.4 The Act, however, does not specify how the percentage of loss shall be
determined. The method used to make such a determination is a matter that rests in the sound
discretion of the Office.5 For consistent results and to ensure equal justice under the law to all
claimants, good administrative practice necessitates the use of a single set of tables so that there
may be uniform standards applicable to all claimants.6
The Office evaluates industrial hearing loss in accordance with the standards set forth in
the specified edition of the A.M.A., Guides.7 Using the frequencies of 500, 1000, 2000 and 3000
Hz, the losses at each frequency are added up and averaged. Then, a “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday sounds under everyday listening conditions. The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.8 The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss and the total is

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8107(c)(13) (which provides 52 weeks of compensation for complete loss of hearing in one ear and
200 weeks of compensation for complete loss of hearing in both ears).
5

Danniel C. Goings, 37 ECAB 781 (1986); Richard Beggs, 28 ECAB 387 (1977).

6

Henry L. King, 25 ECAB 39 (1973); August M. Buffa, 12 ECAB 324 (1961).

7

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

8

A.M.A., Guides 249-51.

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divided by six to arrive at the amount of the binaural hearing loss.9 The Board has concurred in
the Office’s adoption of this standard for evaluating hearing loss.10
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral hearing loss due to noise exposure
from his federal employment. The issue is whether he sustained a ratable impairment in
accordance with the A.M.A., Guides, entitling him to a schedule award.
The Office referred appellant to Dr. Pang, a Board-certified otolaryngologist, for a
second opinion evaluation of his hearing loss. Dr. Pang provided a March 23, 2009 audiogram,
with a recent calibration certificate, showing hearing levels of 20, 15, 10 and 10 dB on the right
and 15, 25, 5 and 5 dB on the left at 500, 1000, 2000 and 3000 Hz, respectively.
The Office properly forwarded Dr. Pang’s report and the March 23, 2009 audiogram to
Dr. Schindler, an Office medical consultant, for a determination of permanent impairment in
accordance with the sixth edition of the A.M.A., Guides.11 In a June 27, 2009 report,
Dr. Schindler averaged appellant’s hearing levels of 20, 15, 10 and 10 dB on the right and 15, 25,
5 and 5 dB on the left at 500, 1000, 2000 and 3000 Hz, respectively, to find an average of 13.75
on the right and 12.5 on the left. He subtracted out a 25-decibel fence, to find a balance of zero
on both the right and left. Multiplying the zero balance by 1.5, he determined that appellant did
not sustain a ratable monaural loss on the right or left.12 Dr. Schindler further found that
appellant did not sustain a binaural loss.13 The Board finds that he properly applied the A.M.A.,
Guides to the March 23, 2009 audiogram to determine that appellant did not sustain a ratable
hearing loss for schedule award purposes.14
On appeal, appellant contends that he sustained a hearing loss beyond that found by the
single audiometric test performed for Dr. Pang and that he should be referred for another hearing
test. The Board finds that the Office properly used the audiometric test performed on March 23,
2009 for determining appellant’s impairment and eligibility for a schedule award. It was the
only test of record performed within the past two years that was certified by a physician.15 It is

9

Id. at 250-51.

10

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon., granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); Frantz Ghassan, 57 ECAB 349 (2006).
12

Supra note 8.

13

Id.

14

See S.G., 58 ECAB 383 (2007).

15

See H.S., 58 ECAB 690 (2007); John C. Messick, 25 ECAB 333 (1974).

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appellant’s burden to submit a properly certified audiogram for review if he objects to the
audiogram selected by the Office for determining the degree of hearing loss.16
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of the Act 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 Secretary of Labor considers likely to cure,
give relief, reduces the degree or the period of any disability or aid in lessening the amount of
any monthly compensation.17 The Office must therefore exercise discretion in determining
whether the particular service, appliance or supply is likely to affect the purposes specified in the
Act.18
ANALYSIS -- ISSUE 2
The Board further finds that the medical evidence of record supports that appellant is not
entitled to hearing aids. There is no medical evidence from a physician recommending that
appellant be provided with hearing aids or any other medical treatment for his employmentrelated hearing loss. Both Dr. Pang and Dr. Schindler found that appellant did not require
hearing aids. The Board finds that under these circumstances the Office did not abuse its
discretion under section 8103(a) by denying authorization for hearing aids.19
CONCLUSION
The Board finds that appellant has not established a ratable hearing loss entitling him to a
schedule award. The Board also finds that the Office did not abuse its discretion in denying
authorization for hearing aids.

16

See Joshua A. Holmes, 42 ECAB 231 (1990).

17

5 U.S.C. § 8103(a).

18

The Office has broad discretionary authority in the administration of the Act and must exercise its discretion to
achieve the objectives of section 8103. Marjorie S. Greer, 39 ECAB 1099 (1988).
19

This does not preclude appellant from seeking authorization for hearing aids or other appropriate medical
treatment. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter
3.400.3(d)(2) (October 1990); Raymond VanNett, 44 ECAB 480 (1993).

5

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
NETWORK DISTRIBUTION CENTER,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1856
Issued: November 20, 2015

Case Submitted on the Record

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

JURISDICTION
On August 18, 2014 appellant, through counsel, filed a timely appeal from an August 14,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than two percent left monaural hearing
loss, for which he received a schedule award.
On appeal, counsel contends that when OWCP issued its decision accepting as
work-related appellant’s left hearing loss, OWCP also effectively denied the claim for rightsided hearing loss. He argues that the Board has jurisdiction and should decide the propriety of
OWCP’s denial of the hearing loss for appellant’s right-sided hearing loss.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 23, 2013 appellant, then a 58-year-old distribution machine operator, filed an
occupational disease claim (Form CA-2) alleging hearing loss as a result of high levels of noise
exposure until his retirement in January 2013. He first became aware of his condition and its
relationship to his employment on September 23, 1999, and continued to be exposed to high
levels of noise at work until January 20, 2013.
In a report dated February 18, 2013, Dr. Natasha Pollak, a Board-certified
otolaryngologist, diagnosed mild-to-moderate high frequency sensorineural hearing loss of the
left ear. She stated that appellant’s right ear was deaf with no word recognition, but that its
etiology was uncertain. Dr. Pollak noted that his deaf right ear could represent end-stage
Ménière’s disease, but that other etiologies were possible. She stated that appellant was
diagnosed with right ear Ménière’s disease 20 years ago, along with right-sided tinnitus, and has
had no hearing in his right ear for approximately 20 years. Appellant noted that the left-sided
hearing loss began only in the past four years.
Audiometric testing taken on February 14, 2013 for the left ear at the frequency levels of
500, 1,000, 2,000, and 3,000 cycles per second revealed 10, 30, 20, and 25 decibels. Testing for
the right ear did not include decibel loss at 3,000 cycles per second, but indicated severe-toprofound hearing loss. Appellant also submitted reports from 1985 through 2013 documenting
periodic visits to physicians regarding his left-sided hearing loss.
In a statement dated June 12, 2013, appellant stated that from January 1981 through
January 2013, he was a distribution machine clerk, dock clerk, and a claims and inquiry clerk at
the employing establishment. He stated that he was exposed to noise from a towline, sorting
machines, container unloaders, forklifts, towmoters transporting mail, and a loud public address
system. Appellant noted that the noise was continuous throughout this time period, and stated
that he did not wear hearing protection until he was told his hearing was deteriorating. He retired
from the employing establishment on January 31, 2013.
Appellant submitted narrative statements from three witnesses supporting the allegation
that the employing establishment had high levels of noise from April 1980 through
January 2013.
OWCP referred appellant, along with a statement of accepted facts, to Dr. Emil Liebman,
a Board-certified otolaryngologist, for a second opinion evaluation. In a February 19, 2014
report, Dr. Liebman diagnosed bilateral sensorineural hearing loss, with profound loss on the
right. He opined that appellant’s left-sided hearing loss was due to noise exposure in appellant’s
Federal civilian employment, but that his right-sided hearing loss was not due to work-related
noise exposure. Rather it was due to long-term Ménière’s disease. Audiometric testing for the
left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed 15, 35,
25, and 30 decibels.
On April 10, 2014 OWCP accepted appellant’s claim for left noise-induced hearing loss.

2

Appellant filed a claim for a schedule award on May 15, 2014. By letter dated May 6,
2014, appellant’s counsel requested a decision supported by rationale and providing appeal rights
explaining why appellant’s right-sided hearing loss and tinnitus were not in any way related to
noise exposure in his federal employment, noting that appellant’s claim had only been accepted
for left-sided hearing loss.
By letter dated June 6, 2014, OWCP advised that appellant’s right-sided hearing loss had
not been accepted because he had preexisting Ménière’s disease that predated the date of injury.
It noted that his claim for a schedule award for the left-sided hearing loss had been forwarded to
an audiologist and a district medical adviser for an impairment evaluation.
By letter dated June 9, 2014, appellant’s counsel again requested a final decision with
appeal rights concerning the denial of appellant’s claim for right-sided hearing loss and tinnitus.
OWCP forwarded Dr. Liebman’s report to a district medical adviser for review and an
impairment rating under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). In a June 16, 2014 report, the medical
adviser concluded that, in accordance with the sixth edition of the A.M.A., Guides, appellant had
a 1.88 percent left monaural hearing loss. He stated, “Medical and audiology records reviewed.
Based upon noise exposure during federal employment, a [schedule award] is indicated for the
left ear only. The right ear hearing loss is due to Ménière’s disease and is not due to loud noise
injury.”
By decision dated August 14, 2014, OWCP issued a schedule award for two percent
monaural impairment of appellant’s left ear, or 1.04 weeks of compensation. It based its
decision on the medical findings and reports of Dr. Liebman and its medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.4 The A.M.A., Guides have been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

5

Supra note 3; see F.D., Docket No. 09-1346 (issued July 19, 2010).

3

OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 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 decibels is deducted
because, as the A.M.A., Guides point out, losses below 25 decibels result in no impairment in the
ability to hear everyday speech under everyday conditions. The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard
for evaluating hearing loss.7
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement has been reached is
based on the probative medical evidence of record and is usually considered to be the date of the
evaluation by the attending physician which is accepted as definitive by OWCP.8
ANALYSIS
The Board finds that appellant has failed to establish more than two percent left monaural
hearing loss, for which he received a schedule award.
Dr. Liebman, OWCP’s referral physician, concluded that appellant sustained bilateral
sensorineural hearing loss, with profound loss on the right. He stated that appellant’s left-sided
hearing loss was due to noise exposure in appellant’s Federal civilian employment. OWCP’s
medical adviser reviewed Dr. Liebman’s report and audiometric findings and applied
standardized procedures to the results of the February 19, 2014 audiogram to find that appellant
had 1.88 percent left monaural hearing loss. Testing at 500, 1,000, 2,000, and 3,000 cycles per
seconds reflected decibel losses of 15, 35, 25, and 30 decibels, for a total of 105 decibels, and an
average hearing loss of 26.25 decibels. The average loss of 26.25 decibels, when reduced by the
fence of 25 decibels, equals 1.25 decibels. Multiplying this loss by a factor of 1.5 results in 1.88
percent impairment or 2 percent after rounding up. Complete loss of hearing under FECA
provides for 52 weeks of compensation. A two percent schedule award for monaural hearing
would equal 2 percent of 52 weeks or 1.04 weeks of compensation. Thus, the Board finds that
the medical adviser correctly applied the A.M.A., Guides to the findings of the February 19,
2014 audiogram and properly concluded that appellant had two percent ratable impairment of the
left ear, or 1.04 weeks of compensation.

6

See A.M.A., Guides 250 (6th ed. 2009).

7

J.B., Docket No. 08-1735 (issued January 27, 2009); J.H., Docket No. 08-2432 (issued June 15, 2009).

8

Mark A. Holloway, 55 ECAB 321, 325 (2004).

4

The Board notes that OWCP has not yet issued a final decision with regards to
appellant’s right-sided hearing loss. The letter dated June 6, 2014 to counsel constituted an
informational letter. The Board has jurisdiction to consider and decide appeals from final
decisions of OWCP. The Board does not have jurisdiction with respect to any interlocutory
matters.9 As OWCP has not issued a decision denying right-sided hearing loss, there is no final
adverse decision before the Board. As of June 6, 2014, OWCP had failed to issue a proper
denial of the claim for employment-related right-sided hearing loss. Until OWCP issues an
adverse decision on that aspect of the timely filed occupational disease claim, the Board cannot
address the issue.
The case cited by counsel in support of the Board’s authority to order a final decision on
the matter of appellant’s right-sided hearing loss, B.C., Docket No. 11-1903 (issued March 26,
2012) is inapposite, as in that case the Board remanded on the basis of an incomplete case
record, whereas in this case there is no indication that the record is incomplete. Unlike in B.C.,
the letter dated June 6, 2014 does not reference a decision denying compensation that is missing
from the case record, or effectively denying his claim for right-sided hearing loss. Instead, it
merely informs appellant as to why his claim had only been accepted for left-sided hearing loss.
OWCP should still issue a final decision as to appellant’s right-sided hearing loss, with findings
of fact, and appropriate appeal rights.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than two percent left monaural hearing loss,
for which he received a schedule award.

9

20 C.F.R. § 501.2(c); Jennifer A. Guillary, 57 ECAB 485 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.10
Issued: November 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

10

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE NAVY, INSPECTION
DEPARTMENT, Gulfport, MS, Employer
__________________________________________

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

Docket No. 08-1399
Issued: October 23, 2008

Case Submitted on the Record

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

JURISDICTION
On April 16, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 23, 2008 merit decision concerning his entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a two percent permanent impairment of his left leg.
FACTUAL HISTORY
The Office accepted that on November 22, 2005 appellant, then a 50-year-old heavy
mobile equipment inspector, sustained lateral meniscus and anterior cruciate ligament tears of his
left knee when he slipped and struck it on a step. It paid compensation for periods of disability.
On February 3, 2006 Dr. Lance Johansen, an attending Board-certified orthopedic surgeon,
performed an anterior cruciate ligament repair and partial lateral meniscectomy of appellant’s

left knee with chondroplasty and debridement of the patellofemoral joint. The procedure was
authorized by the Office.
On April 28, 2006 Dr. Johansen stated that appellant had good range of motion of his left
knee with good strength and stability. After a period of total disability, he released appellant to
return to light-duty work at the employing establishment in early June 2006. In a September 11,
2006 report, Dr. Johansen indicated that appellant’s left knee had reached maximum medical
improvement. He determined that appellant had a two percent permanent impairment of his left
leg under the standards of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001). Dr. Johansen stated that appellant did not have significant
anterior cruciate ligament laxity and therefore an impairment rating was not warranted for
ligament laxity.1 In a similar report dated July 25, 2007, he reiterated that appellant had a two
percent permanent impairment of his left leg under the standards of the A.M.A., Guides and that
an impairment rating for anterior cruciate ligament laxity was not warranted.2
On November 14, 2007 Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon
and Office medical adviser, determined that appellant had a two percent permanent impairment
of his left leg due to the partial lateral meniscectomy of his left knee. He noted that it had not
been accepted that appellant sustained a work-related right arm injury. In a January 23, 2008
decision, the Office granted appellant a schedule award for a two percent permanent impairment
of his left leg. The award ran for 5.76 weeks from July 26 to September 4, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 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. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5 Section
8107(c)(2) of the Act provides that 288 weeks of compensation shall be paid for 100 percent loss

1

Dr. Johansen stated that due to traumatic chondromalacia appellant would likely need to have left knee
replacement surgery at some point.
2

Dr. Johansen also indicated that appellant had a 10 percent permanent impairment of his right arm under the
standards of the A.M.A., Guides.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

2

of the leg,6 and the implementing regulation provides that compensation for proportionate
periods of time is payable for partial loss.7
ANALYSIS
The Office accepted that on November 22, 2005 appellant sustained lateral meniscus and
anterior cruciate ligament tears of his left knee. It granted him a schedule award for a two
percent permanent impairment of his left leg.
The Board finds that the Office properly based its schedule award on the November 14,
2007 report of Dr. Hogshead, a Board-certified orthopedic surgeon, who served as an Office
medical adviser. Dr. Hogshead correctly determined that appellant had a two percent permanent
impairment of his left leg due to the February 3, 2006 partial lateral meniscectomy of his left
knee.8 In reaching this conclusion, he reviewed the medical reports in the record, including the
reports of Dr. Johansen, the attending Board-certified surgeon who performed the surgery.
Dr. Johansen had indicated that appellant was not entitled to an impairment rating for anterior
cruciate ligament laxity.9 This impairment rating conforms to the diagnosis-based impairment
estimates for a partial lateral meniscectomy as provided at Table 17-33.
Section 8107(c)(2) of the Act provides that 288 weeks of compensation shall be paid for
100 percent loss of the leg, and the implementing regulation provides that compensation for
proportionate periods of time is payable for partial loss.10 Where the medical evidence
establishes a two percent loss of use of the leg, the schedule award shall be two percent of 288
weeks or 5.76 weeks. Appellant has not submitted medical evidence that indicates any greater
impairment of loss of function to his left leg. For this reason, the Office properly issued a
schedule award representing 5.76 weeks of compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish he has more
than a two percent permanent impairment of his left leg.

6

5 U.S.C. § 8107(c)(2).

7

20 C.F.R. § 10.404.

8

See A.M.A., Guides 546, Table 17-33.

9

Id. at 546, Table 17-33.

10

See supra notes 6 and 7 and accompanying text.

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 23, 2008 decision is affirmed.
Issued: October 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Morgantown, WV,
Employer
__________________________________________

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

Docket No. 16-0746
Issued: June 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a February 24, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from OWCP’s last merit decision dated December 14, 2009 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s December 21, 2015 request for
reconsideration without merit review of the claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.2 Appellant, a 72-year-old cook foreman,
last worked for the employing establishment in 1978. On November 20, 2008 he filed an
1

5 U.S.C. § 8101 et seq.

2

See infra notes 5 and 6.

occupational disease claim (Form CA-2) for post-traumatic stress disorder (PTSD), which he
attributed to his constructive termination in August 1978.3 Appellant served on active duty with
the U.S. Army for approximately eight and one-half years, ending in February 1976. Based on
Department of Veterans Affairs (DVA) medical records, he was diagnosed with delayed onset
PTSD in July 1997. Appellant received benefits from DVA for his service-connected PTSD.4
With respect to his November 20, 2008 claim for FECA benefits, he indicated that he first
became aware of the employment-related nature of his PTSD on February 15, 2004. Appellant
claimed to have promptly notified the employing establishment of his condition.
In a July 10, 2009 decision, OWCP denied appellant’s claim as untimely filed. The
record established that, on or about July 7, 2004, appellant was either aware or should have been
aware that his claimed condition was employment related. However, he waited more than four
years (November 20, 2008) before filing his occupational disease claim. As such, appellant
failed to meet the three-year filing requirement under 5 U.S.C. § 8122.
Appellant requested a hearing before an OWCP hearing representative. By decision
dated December 14, 2009, the hearing representative affirmed OWCP’s July 10, 2009 decision.
Appellant appealed to the Board. On November 22, 2010 the Board affirmed the hearing
representative’s decision.5
Appellant subsequently filed multiple requests for reconsideration. OWCP denied
reconsideration on January 5, 2011, July 12, 2013, and most recently on February 24, 2016.6 Its
latest nonmerit decision followed appellant’s December 21, 2015 request for reconsideration,
which OWCP received on January 5, 2016.

3

Between July 1976 and August 1978, appellant worked approximately 18 months at the Robert F. Kennedy
Youth Center, Federal Correctional Institution (FCI), Morgantown, WV. He resigned effective August 18, 1978.
However, appellant claimed the employing establishment forced him to quit.
4

As of August 12, 1997, DVA rated appellant 50 percent disabled due to his service-connected PTSD. Appellant
also received disability benefits from the Social Security Administration for anxiety disorders.
5

Docket No. 10-0673 (issued November 22, 2010). The Board also issued a June 10, 2011 order denying
appellant’s petition for reconsideration. Docket No. 10-0673, Order Denying Petition for Reconsideration (issued
June 10, 2011). The November 22, 2010 decision and June 10, 2011 order are incorporated herein by reference.
6

With respect to OWCP’s January 5, 2011 nonmerit decision, appellant filed an untimely appeal, which the
Board dismissed by order dated January 25, 2012. Docket No. 12-0004, Order Dismissing Appeal (issued
January 25, 2012). Appellant also appealed OWCP’s July 12, 2013 nonmerit decision, which the Board affirmed by
decision dated May 14, 2014. Docket No. 14-0141 (issued May 14, 2014). His subsequent petition for
reconsideration was untimely, and accordingly, the Board issued an order dismissing the petition. Docket No. 140141, Order Dismissing Petition for Reconsideration (issued March 12, 2015). Appellant also wrote to the Board
on January 26, 2015. The Board considered his January 26, 2015 correspondence as a new appeal, which it assigned
Docket No. 15-0766. By order dated May 11, 2015, the Board dismissed the appeal for lack of jurisdiction. Docket
No. 15-0766, Order Dismissing Appeal (issued May 11, 2015). The then-current record revealed that OWCP had
not issued a final adverse decision following the Board’s May 14, 2014 decision. Appellant filed a petition for
reconsideration of the Board’s May 11, 2015 order, which the Board dismissed by order dated October 5, 2015.
Docket No. 15-0766, Order Dismissing Petition for Reconsideration (issued October 5, 2015). The Board reiterated
that OWCP had not issued a final decision following the Board’s May 14, 2014 decision, and therefore, the Board
lacked jurisdiction over the case. The above-mentioned Board decision and orders are incorporated herein by
reference.

2

In his request for reconsideration, appellant argued that he informed the employing
establishment about his injury in February 2004 and again in July 2004, but that it failed to report
the information to OWCP. He also alleged that the employing establishment told him to file an
Equal Employment Opportunity (EEO) complaint, but neglected to inform him that he needed to
file a separate FECA claim for his PTSD. Appellant reportedly attached some EEO-related
documents to his December 21, 2015 request for reconsideration, but the record does not reflect
OWCP having received any additional information at that time.
OWCP subsequently received a January 10, 2016 letter from appellant directed to the
U.S. Secretary of Labor. Appellant’s January 10, 2016 correspondence reiterated that he
reported the injury to the employing establishment in July 2004, but the employing establishment
neglected to inform OWCP. He also wrote to OWCP on January 17, 2016 raising the same
argument. Additionally, appellant provided OWCP an annotated copy of two FECA statutory
provisions (5 U.S.C. §§ 8120 and 8122), which described the employing establishment’s
responsibility for reporting an injury to DOL and the timeframe for making a claim under FECA.
By decision dated February 24, 2016, OWCP denied appellant’s request for
reconsideration and declined to review the merits of his case. It found that the evidence of
record did not support that it had erroneously applied or interpreted a point of law. OWCP also
found that the evidence did not contain a new legal argument not previously considered. Lastly,
it indicated that the evidence was cumulative, and thus, substantially similar to evidence or
documentation already contained in the case record and previously considered. Consequently,
OWCP denied reconsideration because the evidence presented was “[insufficient] to warrant
review of the decision dated [May 11, 2015].”
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.7 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.8 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.9 OWCP will consider an untimely request for reconsideration only if the request

7

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.607 (2014).

9

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt
date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b. For decisions issued on or after June 1, 1987 through
August 28, 2011, the request for reconsideration must be “mailed” to OWCP within one year of OWCP’s decision
for which review is sought. Id. at Chapter 2.1602.4e.

3

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit
decision.”10 The request must establish, on its face, that such decision was erroneous.11 Where a
request is untimely and fails to present any clear evidence of error, OWCP will deny the request
for reconsideration without reopening the case for a review on the merits.12
When a request is timely filed, a different standard of review applies. A timely
application for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a
specific point of law; (ii) advances a relevant legal argument not previously considered by
OWCP; or (iii) constitutes relevant and pertinent new evidence not previously considered by
OWCP.13 When a timely application for reconsideration does not meet at least one of the abovenoted requirements, OWCP will deny the request for reconsideration without reopening the case
for a review on the merits.14
ANALYSIS
The Board finds that the case is not in posture for decision. The issue on reconsideration
is whether appellant timely filed his November 20, 2008 occupational disease claim. OWCP
erroneously noted that the decision under review was the Board’s May 11, 2015 order, which
dismissed appellant’s January 26, 2015 appeal for lack of jurisdiction. First, OWCP is not
authorized to review Board decisions.15 Second, the Board’s May 11, 2015 order did not address
the issue of whether appellant’s November 20, 2008 claim was timely under 5 U.S.C. § 8122.
The last OWCP merit decision to address that particular issue was the OWCP hearing
representative’s December 14, 2009 decision.
Appellant’s December 21, 2015 request for reconsideration is untimely because more
than one year has elapsed since the last OWCP merit decision issued on December 14, 2009.16
Because OWCP mistakenly believed the request was timely, it applied the wrong standard in
determining whether further merit review was warranted under 20 C.F.R. § 10.608. Although
the February 24, 2016 decision did not specifically reference 20 C.F.R. § 10.606(b)(3), it is
10

20 C.F.R. § 10.607(b).

11

Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise and explicit and it
must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not
enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a substantial question
as to the correctness of OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993).
12

20 C.F.R. § 10.608(b).

13

Id. at § 10.606(b)(3).

14

Id. at § 10.608(a), (b).

15

Id. at § 501.6(d).

16

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

4

evident from OWCP’s analysis that it did not apply the appropriate “clear evidence of error”
standard under 20 C.F.R. § 10.607(b).17 Accordingly, the case must be remanded to OWCP for
proper adjudication of appellant’s untimely request for reconsideration.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: June 1, 2016
Washington, DC

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

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

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

17

As previously noted, OWCP found that the evidence did not support that it had erroneously applied or
interpreted a point of law. It also found that the evidence did not contain a new legal argument not previously
considered. Finally, OWCP indicated that the evidence was substantially similar to evidence or documentation
already contained in the case record and previously considered. The Board notes that this analysis mirrors the
provisions of 20 C.F.R. § 10.606(b)(3)(i), (ii), and (iii).

5