United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
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)
and
)
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DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Kansas City, MO, Employer
)
___________________________________________ )
R.A., Appellant

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

Docket No. 08-2014
Issued: May 13, 2009

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 July 14, 2008 appellant filed a timely appeal from an August 30, 2007 decision of the
Office of Workers’ Compensation Programs regarding his schedule award claim. He also
appealed a June 17, 2008 decision which denied merit review. 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 more than 15 percent permanent impairment of
the right upper extremity for which he received a schedule award; and (2) whether the Office
properly denied appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 6, 2006 appellant, then a 58-year-old temporary file clerk, injured his right arm
when he stepped in a hole in the agency parking lot and fell. The Office accepted his claim for
sprain of the right shoulder/upper arm, contusion of the right shoulder and a full thickness tear of

the right rotator cuff. It authorized arthroscopic surgery which was performed on July 31, 2006.
Appellant stopped work on April 6, 2008.
Appellant came under the treatment of Dr. Richard Curnow, a Board-certified orthopedic
surgeon, who noted treating appellant from June 16 to July 3, 2006 for injuries to his right elbow
and shoulder sustained in a fall at work. Dr. Curnow diagnosed full thickness tear of the right
rotator cuff and performed acromioplasty with exploration and debridement of old mass
irreparable rotator cuff tear. In reports dated August 30, 2006 to January 22, 2007, he noted that
appellant was progressing well postoperatively with full range of motion and some weakness.
On January 22, 2007 Dr. Curnow advised that appellant reached maximum medical improvement
and estimated appellant’s impairment of the right shoulder at 30 percent. On May 7, 2007
appellant filed a claim for a schedule award.
On June 11, 2007 the Office referred appellant for a second opinion to Dr. George
Varghese, a Board-certified physiatrist, for an impairment rating in accordance with the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).1 In a July 16, 2007 report, Dr. Varghese reviewed the medical records and noted the
history of a full thickness rotator cuff tear, for which appellant underwent acromioplasty and
debridement of the rotator cuff. He found that right shoulder abduction was 130 degrees for two
percent impairment,2 adduction was 50 degrees for zero percent impairment,3 internal rotation
was 70 degrees for one percent impairment,4 external rotation was 50 degrees for one percent
impairment,5 flexion was 130 degrees for three percent impairment6 and extension was 50
degrees for zero percent impairment.7 In rating strength, Dr. Varghese referred to Table 16-35,
rating strength deficit for abduction at four, external rotation at three and internal rotation at two
or total muscle weakness of nine percent.8 He found that appellant had 15 percent impairment to
the right upper extremity under the A.M.A., Guides Combined Values Chart. Dr. Varghese
noted that appellant reached maximum medical improvement.
In a report dated July 16, 2007, an Office’s medical adviser concurred with Dr. Varghese
that appellant had 15 percent impairment of the right upper extremity due to loss range of motion
and strength deficits. The Office medical adviser noted that Dr. Varghese discussed range of
motion, chronic pain, sensory change and chronic weakness and properly cited to the appropriate
tables and figures in the A.M.A., Guides in support of his impairment rating.
1

A.M.A., Guides, (5th ed. 2001).

2

Id. at 477, Figure 16-43.

3

Id.

4

Id. at 479, Figure 16-46.

5

Id.

6

Id. at 476, Figure 16-40.

7

Id.

8

Id. at 510, 16-35.

2

In a decision dated August 30, 2007, the Office granted appellant a schedule award for 15
percent permanent impairment of the right upper extremity. The period of the award was from
July 16, 2007 to June 7, 2008 or 46.8 weeks.
In a letter dated June 3, 2008, appellant requested reconsideration of the August 30, 2007
schedule award. He asserted that his surgeon told him that his impairment was at least 30
percent. Appellant contended that he could not lift anything with his right arm and had not been
able to secure a job since being released on September 1, 2007 by the employing establishment.
In a decision dated June 17, 2008, the Office denied appellant’s reconsideration request
on the grounds that his letter did not raise substantive legal questions or include new and relevant
evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act9 and its
implementing regulations10 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 regulations as the appropriate standard for evaluating schedule losses.
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for sprain of the right shoulder/upper arm,
contusion of the right shoulder and full thickness tear of the right rotator cuff. It authorized
arthroscopic surgery, which was performed on July 31, 2006. In a January 22, 2007 report,
Dr. Curnow advised that appellant had reached maximum medical improvement and that he had
permanent impairment of 30 percent due to his right shoulder injury. However, he did not
explain how he calculated this impairment rating pursuant to the A.M.A., Guides.11 It is well
established that an impairment estimate not based on the standards adopted by the Office is of
diminished probative value.12
On July 16, 2007 Dr. Varghese noted findings upon physical examination of the right
shoulder: for abduction was 130 degrees for two percent impairment,13 adduction was
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where the
A.M.A., Guides are not properly followed).
12

See Carl J. Cleary, 57 ECAB 563 (2006).

13

See A.M.A., Guides 477, Figure 16-43.

3

50 degrees for zero percent impairment,14 internal rotation was 70 degrees for one percent
impairment,15 external rotation was 50 degrees for one percent impairment,16 flexion was 130
degrees for three percent impairment17 and extension was 50 degrees for zero percent
impairment.18 He found a total of percent impairment for loss range of motion. The Board notes
that these values for range of motion deficit conform to the A.M.A., Guides.
With regard to impairment for strength deficit, Dr. Varghese used Table 16-35. He
advised that right shoulder abduction was valued at four percent, external rotation was valued at
three percent and internal rotation was valued at two percent or total muscle weakness of nine
percent.19 The Office medical adviser also concurred in this finding. However, the Board notes
that pursuant to the A.M.A., Guides decreased strength cannot be rated in the presence of
decreased motion or painful conditions. The A.M.A., Guides provide that only in rare cases, if
the examiner believed that the individual’s loss of strength represents an impairment factor that
has not been considered adequately by other methods in the A.M.A., Guides, then the loss of
strength can be rated separately.20 In this instance, Dr. Varghese did not fully explain why
strength impairment was calculated in addition to the range of motion impairment. He did not
address whether the tall thickness tear of the rotator cuff warranted a separate loss of strength
rating. The Board notes that the medical evidence in this case does not show a ratable
impairment greater than seven percent permanent impairment of the right upper extremity.
Appellant did not submit any medical evidence supporting greater impairment than that
which he was granted by the Office.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,21 the Office has the discretion to reopen a case for
review on the merits. It must exercise this discretion in accordance with the guidelines set forth
in section 10.606(b)(2) of the implementing federal regulations,22 which provide that a claimant

14

Id.

15

Id. at 479, Figure 16-46.

16

Id.

17

Id. at 476, Figure 16-40.

18

Id.

19

Id. at 510, 16-35.

20

Id. at 508, 16.8a, Principles.

21

5 U.S.C. § 8128(a).

22

20 C.F.R. § 10.606(b).

4

may obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by the
(Office); or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[the Office.]”
Section 10.608(b) provide that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.23
ANALYSIS -- ISSUE 2
Appellant’s June 3, 2008 request for reconsideration did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by the Office.
Appellant did not submit any additional medical evidence with his reconsideration
request, only a narrative statement which noted that Dr. Curnow had rated impairment as 30
percent. He indicated that he could lift anything with his right arm and has not been able to find
work since his agency released him on September 1, 2007. However, this is insufficient to show
that the Office erroneously applied or interpreted a specific point of law nor does it advance a
relevant legal argument not previously considered. Therefore, the Office properly determined
that this did not constitute a basis for reopening the case for a merit review. Consequently,
appellant is not entitled to a review of the merits of his claim under section 10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his June 3, 2008 request for reconsideration.
CONCLUSION
The Board finds that appellant has no more than 15 percent right upper extremity
impairment. The Board further finds that the Office properly denied appellant’s request for
reconsideration of his case on its merits.

23

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the June 17, 2008 and August 30, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: May 13, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MILWAUKEE VA MEDICAL CENTER,
Milwaukee, WI, Employer
__________________________________________

)
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)
)
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)
)
)

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

Docket No. 20-0389
Issued: November 2, 2020

Case Submitted on the Record

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

JURISDICTION
On December 10, 2019 appellant, through counsel, filed a timely appeal from a June 21,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition causally related to the accepted September 20, 2018 employment incident.
FACTUAL HISTORY
On October 1, 2018 appellant, then a 39-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on September 20, 2018 she sustained post-traumatic stress disorder
(PTSD) when a coworker sexually harassed her while in the performance of duty. She stopped
work on September 21, 2018 and returned to work on October 15, 2018. On the reverse side of
the claim form appellant’s supervisor acknowledged that appellant was injured while in the
performance of duty.
By development letter dated October 5, 2018, OWCP advised appellant of the deficiencies
of her claim. It requested additional factual and medical evidence, including a physician’s opinion
supported by medical rationale regarding how the reported work incident caused or aggravated a
diagnosed medical condition. OWCP also requested that appellant complete a questionnaire.
Appellant was afforded 30 days to submit the necessary information.
OWCP subsequently received a September 21, 2018 statement, wherein appellant reported
that she was sexually harassed the night before by a male housekeeper who sexually propositioned
her. In a September 21, 2018 statement, B.G., an assistant nurse manger, confirmed that appellant
had notified her of the sexual harassment which occurred the prior day during appellant’s shift.
OWCP also received medical evidence in support of the claim. On September 21, 2018
appellant was seen in the emergency department by Dr. David Tennenbaum, Board-certified
internist and hospice/palliative medicine specialist, and Dr. Hether R. Cook, a clinical
psychologist. Dr. Tennenbaum indicated that appellant presented with increased anxiety
associated with a stressful work environment. Dr. Cook noted the multiple instances of sexual
harassment from the male housekeeper the night before and that appellant also reported that she
was told that the male housekeeper was “not allowed on certain floors because he physically
touched a woman.” He diagnosed “other specified problems related to psychosocial
circumstances.”
In a September 28, 2018 note, Dr. Zeba Sami, a psychiatry specialist, indicated that
appellant would be unable to return work for approximately two to three weeks.
In October 3 and 10, 2018 medical notes, Dr. William Seymour, Ph.D., a clinical
psychologist, indicated that appellant’s diagnosis of PTSD predated the alleged September 20,
2018 sexual harassment incident that occurred in the workplace. He advised that the incident had
continued to trigger symptoms related to the PTSD diagnosis and he discussed proposed
treatment.3

3
Dr. Seymour further indicated that appellant could return to work on October 15, 2018 within the restrictions
outlined by her orthopedic physician.

2

In a November 2, 2018 letter, the employing establishment controverted appellant’s claim.
By decision dated November 8, 2018, OWCP denied the claim, finding that fact of injury
had not been established. It indicted that appellant had not responded to its questionnaire or
provided any corroborating evidence to substantiate that the September 20, 2018 incident occurred
as alleged.
On February 1, 2019 appellant requested reconsideration and submitted her completed
questionnaire. She provided specific details regarding the September 20, 2018 incident, as well as
details relating to prior harassing conversations with the housekeeping employee since July 2018.
Appellant indicated that she had been hospitalized previously for an emotional condition and that
her medication was increased after the September 20, 2018 employment incident.
By decision dated June 21, 2019, OWCP modified the prior decision, finding that appellant
had established fact of injury. The claim remained denied, however, as the medical evidence of
record was insufficient to establish causal relationship between the diagnosed condition and the
accepted September 20, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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,5 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.6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8

4

Supra note 2.

5

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
8

F.H., Docket No. 18-0869 (issued January 29, 2020).

3

Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is
medical evidence that includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and compensable employment factors.10
The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.11
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.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition causally related to the accepted September 20, 2018 employment incident.
Appellant was seen on September 21, 2018 at the employing establishment’s emergency
department by Drs. Tennenbaum and Cook. Dr. Tennenbaum noted the September 20, 2018
employment incident and indicated that appellant presented with increased anxiety associated with
a stressful work environment. While he noted appellant’s complaint of increased anxiety,
Dr. Tennenbaum did not provide a rationalized medical explanation of how the September 20,
2018 incident physiologically caused appellant’s condition.13 Dr. Cook also noted the history of
the September 20, 2018 employment incident and provided an impression of “other specified
problems related to psychosocial circumstances.” However, she did not provide an opinion
relative to relationship.14 This report is therefore insufficient to establish appellant’s claim.
In October 3 and 10, 2018 medical notes, Dr. Seymour indicated that the alleged sexual
harassment incident of September 20, 2018 continued to trigger appellant’s symptoms related to
the PTSD diagnosis. However, his opinion is of limited probative value as it is conclusory in
nature.15 As previously noted, a medical opinion must explain how the implicated employment
9

T.H., Docket No. 19-0599 (issued January 28, 2020).

10

K.C., Docket No. 18-0529 (issued January 21, 2020).

11

D.J., Docket No. 19-1301 (issued January 29, 2020).

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
13

See G.L., Docket No. 18-1057 (issued April 14, 2020).

14

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

15
C.M., Docket No. 19-0360 (issued February 25, 2020); C.D., Docket No. 17-0292 (issued June 19, 2008);
Mary A. Ceglia, 55 ECAB 626 (2004).

4

incident physiologically caused, contributed to, or aggravated the specific diagnosed conditions.16
His report is therefore insufficient to meet appellant’s burden of proof.
Dr. Sami provided a work excuse note. However, it did not provide an opinion on the issue
of 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.17 This report, therefore, is insufficient to establish appellant’s claim.
As none of the medical evidence submitted provided medical rationale sufficient to
establish causal relationship between the September 20, 2018 employment incident and appellant’s
diagnosed emotional condition, the Board finds that she has not met her burden of proof.18
On appeal counsel argues that OWCP’s decision was contrary to law and fact. As
explained above, however, the medical evidence of record does not contain a rationalized medical
evidence establishing causal relationship. Accordingly, appellant has not met her burden of proof.
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 causally related to the accepted September 20, 2018 employment incident.

16

R.S., Docket No. 19-1774 (issued April 3, 2020; K.G., Docket No. 18-1598 (issued January 7, 2020).

17

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

18

T.J., Docket No. 19-0461 (issued August 11, 2020); R.G., Docket No. 18-0792 (issued March 11, 2020).

5

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pontiac, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-925
Issued: December 17, 2009

Case Submitted on the Record

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

JURISDICTION
On February 25, 2009 appellant, through his attorney, filed a timely appeal from May 29,
2008 and January 9, 2009 merit decisions of the Office of Workers’ Compensation Programs,
denying modification of the established wage-earning capacity determination. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his wage-earning capacity
determination should be modified.
FACTUAL HISTORY
On February 9, 1993 appellant, then a 38-year-old city carrier, filed a claim alleging that
he sustained an injury on February 1, 1993 in the performance of duty. The Office accepted the
claim for a herniated disc at L3-4 and authorized a microdiscectomy at L3 on July 28, 1993 and a
repeat discectomy at L3-4 on January 21, 1994.

On February 7, 2007 appellant accepted a position as a modified clerk. He returned to
work on February 20, 2007. By decision dated May 2, 2007, the Office found that appellant’s
actual earnings as a modified clerk effective February 20, 2007 fairly and reasonably represented
his wage-earning capacity determination. It reduced his compensation to zero as his wages met
or exceeded those of the job he held when injured.
On February 22, 2008 appellant filed a notice of recurrence of disability on October 16,
2007 causally related to his February 1, 1993 work injury.
He stopped work on
October 17, 2007. Appellant related that on October 16, 2007 he experienced an increase in
pain.
In a progress report dated October 18, 2007, Dr. Timothy P. Sesi, a Board-certified
physiatrist, evaluated appellant for complaints of increased pain. On examination he found
“increased myofascial findings.” Dr. Sesi stated, “[Appellant] has had some increased pain with
some increased duties at work. I am going to put him off work for the next couple of weeks. I
would like things to ‘calm down a bit with regards to his back.’” He recommended a magnetic
resonance imaging (MRI) scan study.
On November 14, 2007 Dr. Sesi described appellant’s findings of pain and paresthesias
with stiffness and trigger points on examination. He took him off work pending an MRI scan
study. In an accompanying form report, Dr. Sesi diagnosed a disc herniation and found that
appellant was unable to work. On December 6, 2007 he found no changes on examination and
again requested an MRI scan study. Dr. Sesi opined that appellant should remain off work. On
January 17, 2008 he again requested approval for an MRI scan study “to find out what the status
of [appellant’s] herniated disc is and what the next option of treatment would be for him….
[Appellant] remains on an off-work basis.”
By letter dated March 5, 2008, the Office requested that appellant submit a detailed
medical report from his attending physician addressing how his condition worsened such that he
could not perform the duties of a modified clerk.
On February 26 and 28, 2008 Dr. Sesi again found that appellant was disabled pending an
MRI scan study. In a report dated March 20, 2008, he stated:
“As I have related in the past, [appellant] had a previous back injury from 1993.
[Appellant] went through an extensive workup at that time as well as therapy and
medications and eventually went back to a work status. He had been on restricted
work. [Appellant] then had acute worsening of his back pain in October 2007.
He had increased pain and discomfort at that time. [Appellant] had noticed
increased pain with increased duties at work as noted in my office note of
October 18, 2007. At that time I kept him off work, we put him on some pain
medication and we had him continue with some home exercises….
“This current injury, by history, is an exacerbation of a previous injury. There
can be no other explanation as to why he was working and doing reasonably well,
enough so that he could continue working, but then had a flare-up at work.”
Dr. Sesi again recommended an MRI scan study.
2

By decision dated May 29, 2008, the Office found that appellant had not established that
modification of its wage-earning capacity determination was warranted. On June 22, 2008
appellant requested a telephonic hearing.
An MRI scan study of the lumbar spine, performed on June 17, 2008, revealed multilevel
degenerative disc disease and displacement superimposed on a congenitally narrow spinal canal,
with a broad-based disc protrusion at L3-4 causing severe central canal and biforaminal
narrowing and effacement of the descending L4 nerve roots bilaterally. The study also showed
moderate central canal stenosis at L4-5 and L5-S1 affecting the nerve roots bilaterally.
In a progress report dated July 22, 2008, Dr. Sesi recommended a surgical evaluation.
On September 4, 2008 Dr. Steven M. Rapp, a Board-certified neurosurgeon, discussed the
February 1, 1993 work injury, the microdiscectomy in 1993 and the revision of the discectomy
in 1994. He noted that, in September 2007, appellant experienced increased back pain with
numbness and tingling into the lower extremities. Dr. Rapp reviewed the June 2008 MRI scan
study and stated, “These films are suggestive of an L3-4 disc herniation with significant stenosis.
There is also slight stenosis at L2-3. It is more likely than not that this is an aggravation of
[appellant’s] previous condition, which was aggravated by his work.”1
In a statement received November 10, 2008, appellant argued:
“It is my contention and belief that my current condition and disability are a result
of the natural progressive worsening of my previously accepted work-related
injury, a disc herniation at L3/L4 through both the natural progression and
pathology of the injury and through the possible exacerbation of the injury’s
symptoms through the culminating effects, the dynamics and natural conditions of
the job requirements as had been modified by the [employing establishment] on
August 31, 2007 which included extended walking, extended periods of standing
and sitting as well as the physical rigors and demands of entering and exiting a
seated position, not addressed in my restrictions and this worsening did occur
without a single and or specific event or trauma intervening.”
Appellant noted that his 2008 MRI scan study showed that his conditioned had worsened
since the previously MRI scan study of November 2000.
A telephonic hearing was held on November 3, 2008.2 Appellant related that he
experienced increased pain and paralysis sensation in both legs. He asserted that extended
standing performing his modified work duties “aggravated the existing condition.”

1

An October 21, 2008 lumbar myelogram and computerized tomography myelogram revealed multilevel
degenerative disc and facet changes with multiple levels of central canal stenosis and bilateral foraminal narrowing.
2

On October 29, 2008 Dr. Rapp reviewed the myelogram and recommended an inter body fusion at L3-4 and
L4-5.

3

By decision dated January 9, 2009, the hearing representative affirmed the May 29, 2008
decision. He found that the medical evidence did not contain sufficient objective rationale
showing how appellant sustained a material change in the extent of his injury-related condition
beginning October 16, 2007.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that, a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.3 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.5 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.6
ANALYSIS
The Office accepted that appellant sustained a herniated disc at L3-4 on February 1, 1993
in the performance of duty. On February 7, 2007 appellant accepted a position as a modified
carrier. By decision dated May 2, 2007, the Office found that his actual earnings as a modified
carrier fairly and reasonably represented his wage-earning capacity and established that he had
no loss of wage-earning capacity. Appellant worked in the position until October 17, 2007,
when he stopped alleging that he sustained an increase in pain.
Appellant has not alleged and the record does not support that the wage-earning capacity
decision was in error. He argued that he sustained a material change in condition such that he
was unable to perform his work as a modified carrier beginning October 16, 2007.7
On October 18, 2007 Dr. Sesi found an increase in myofascial findings on examination
and related that he was taking appellant off work to “calm things down a bit with regards to his
back.” He recommended an MRI scan study. In November and December 2007 reports,
Dr. Sesi opined that appellant should remain off work pending an MRI scan study to determine
the condition of his herniated disc and need for further treatment. He did not, however, provide a

3

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

4

Sharon C. Clement, 55 ECAB 552 (2004).

5

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

6

Id.

7

In a statement dated November 10, 2008, appellant attributed his condition both to the natural progression of his
injury and the performance of his work duties since the wage-earning capacity determination. If he believes that,
new work factors caused or aggravated his condition, he should file an occupational disease claim.

4

firm diagnosis or explain how appellant’s accepted work injury caused an increase in disability;
thus, his opinion is of little probative value.8
In February 2008 reports, Dr. Sesi noted that appellant experienced an “acute worsening
of his back pain in October 2007” which he attributed to “increased duties at work.” He
diagnosed an exacerbation of appellant’s prior employment injury and stated that there was “no
other explanation as to why he was working and doing reasonably well, enough so that he could
continue working, but then had a flare-up at work.” Dr. Sesi did not, however, provide medical
reasoning demonstrating that his conclusion reached regarding disability was sound, logical and
rational.9 A medical opinion attributing a condition to an employment injury because the
employee was asymptomatic before the injury but symptomatic after it is insufficient, without
supporting rationale, to establish causal relationship.10
On September 4, 2008 Dr. Rapp discussed appellant’s February 1, 1993 work injury and
resulting medical treatment. He noted that, in September 2007, appellant experienced increased
pain in his low back with numbness and tingling. Dr. Rapp interpreted a June 2008 MRI scan
study as suggesting a disc herniation and significant stenosis at L3-4 and slight stenosis at L2-3.
He attributed the findings on MRI scan study “more likely than not” to an aggravation of
appellant’s employment-related condition. Dr. Rapp’s opinion that appellant “more likely than
not” had sustained an aggravation of the accepted work injury is couched in speculative terms
and thus of diminished probative value.11 Further, he did not provide any rationale for his
causation finding. A mere conclusion without the necessary rationale explaining how and why
the physician believes that a claimant’s accepted exposure could result in a diagnosed condition
is not sufficient to meet a claimant’s burden of proof.12
Appellant has not submitted medical evidence sufficient to establish that the May 2, 2007
wage-earning capacity determination should be modified. He has not met his burden of proof.
CONCLUSION
The Board finds that appellant has not established that modification of the Office’s wageearning capacity determination is warranted.

8

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008) (finding that pain is a symptom, not a
compensable diagnosis); T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding causal relationship
which is unsupported by medical rationale).
9

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 4, 2007).

10

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

11

See T.M., supra note 8; D.D., 57 ECAB 734 (2006).

12

C.B., 60 ECAB ___ (Docket No. 08-2268, issued May 22, 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 9, 2009 and May 29, 2008 are affirmed.
Issued: December 17, 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

6


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

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

Docket No. 14-290
Issued: April 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 22, 2013 appellant filed a timely appeal from a July 30, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she was disabled
from December 5, 2011 to May 20, 2013.

1
2

5 U.S.C. § 8101 et seq.

Appellant requested oral argument. In a December 26, 2013 letter, the Clerk of the Board advised her to
confirm a continuing desire for oral argument in Washington, DC. No written response was received. The Board, in
its discretion, will decide the appeal on the record.

FACTUAL HISTORY
Appellant, a 43-year-old processing clerk, filed a claim for benefits on July 18, 2011,
alleging injury to her head and right thumb when a heavy metal door closed on her. OWCP
accepted the claim for right thumb sprain; concussive syndrome, without loss of consciousness;
nose contusion and headache.
Appellant initially sought treatment from Dr. John C. Witt, a Board-certified neurologist.
In a report dated August 4, 2011, Dr. Witt related that she had been struck on the head with a
metal gate on July 18, 2011. Appellant did not lose consciousness. A computerized tomography
(CT) scan of the head was normal. Appellant had a headache but no migraine symptoms.
Dr. Witt noted that appellant was to return to work that night and would return to the clinic in 10
weeks.
In a report dated January 9, 2012, Dr. Michael Edgeworth, a specialist in neurology,
stated that appellant was experiencing postconcussion headaches, blurred vision and dizziness.
He began treating her in September 2011 for headaches which began following a July 18, 2011
injury when she was struck by a metal gate. Dr. Edgeworth had appellant undergo a magnetic
resonance imaging (MRI) scan, the results of which were reported as normal. Appellant returned
to work but began to experience a worsening of her headaches shortly thereafter. Dr. Edgeworth
noted no new neurological deficits at the time of his examination.
Appellant submitted CA-7 claim forms requesting compensation for wage loss from
July 18, 2011 to May 20, 2013.
By letter to appellant dated June 5, 2013, OWCP requested additional factual and medical
evidence in support of her claim.
In a March 8, 2012 report, Dr. Edgeworth reviewed the history of injury and noted that
appellant still experienced chronic headaches. He prescribed medication which was helping her
as it produced a decrease in the severity and frequency of her headaches and she had returned to
part-time work. On July 2, 2012 Dr. Edgeworth reiterated his findings. He noted that appellant
was pleased with her improvement. There were no changes in her medication.
In a report dated January 21, 2013, Dr. Witt related that since appellant was seen in
August 2011 she complained of unremitting severe daily headaches and neck pain that prevented
her from working. On physical examination appellant had no acute distress or discomfort.
Dr. Witt assessed chronic daily headache with migrainous and analgesic rebound features. On
February 25, 2013 he related that appellant’s headaches had significantly improved, but that she
still had neck pain which she felt prevented her from working. On March 25, 2013 appellant
related that her neck pain was improved, but that physical therapy she received for the neck
aggravated her headaches. She also submitted a physical therapy report.
By decision dated July 30, 2013, OWCP denied appellant’s claim for wage loss for
intermittent dates from December 5, 2011 to May 20, 2013.

2

LEGAL PRECEDENT
It is the employee’s burden of proof to establish disability during the period of time for
which wage-loss compensation is claimed. The term “disability” is defined by implementing
regulations as “the incapacity, because of an employment injury, to earn the wages the employee
was receiving at the time of injury. It may be partial or total.”3 The Board has long held that
whether a particular injury causes an employee disability for employment is a medical question
which must be resolved by probative medical evidence.
ANALYSIS
OWCP accepted the conditions of right thumb sprain; concussive syndrome, without loss
of consciousness; nose contusion and headache. Dr. Edgeworth stated in a January 9, 2012
report that he began treating appellant in September 2011 for headaches following the July 18,
2011 work injury.
Appellant experienced headaches, blurred vision, dizziness and
postconcussion syndrome. An MRI scan of her head showed normal results. On March 8, 2012
Dr. Edgeworth noted that he had prescribed medication which produced a decrease in the
severity and frequency of appellant’s headaches and she returned to part-time work. On July 2,
2012 Dr. Edgeworth reiterated his findings. He advised that appellant’s condition continued to
improve.
Dr. Edgeworth failed to provide an opinion addressing specifically whether appellant was
disabled for work due to the accepted conditions during the period December 5, 2011 through
May 20, 2013.4 While he documented that she experienced headaches he failed to discuss
whether she became disabled on intermittent duties. Dr. Edgeworth did not provide any work
restrictions or indicate that appellant was unable to perform the duties of her job as a clerk.
On January 21, 2013 Dr. Witt stated that appellant was having daily, severe headaches
and neck pain which prevented her from working. He discussed her medication that was initially
effective in reducing the severity of her headaches. Dr. Witt advised that an August 2011 CT
scan was negative and showed no abnormal or acute findings. He concluded that appellant had
migraine headaches, but noted that she was in no acute distress or discomfort. Dr. Witt did not
address any specific dates of disability due to her headaches or other residuals. He stated in his
March 25, 2013 report that appellant had recently been prescribed medication which had
substantially reduced the frequency and severity of her headaches. Dr. Witt’s reports, however,
did not provide a medical opinion on whether she became totally disabled from work due to her
accepted conditions. While he noted that appellant was not working, he did not provide medical
opinion to support dates of intermittent disability. Dr. Witt’s opinion is of further diminished
probative value because he did not treat her between August 2011 through January 2013. The
reports from him failed to establish that appellant was disabled for work during this period.

3

20 C.F.R. § 10.5(f).

4

William C. Thomas, 45 ECAB 591 (1994).

3

As noted, to establish entitlement to compensation, an employee must establish through
competent medical evidence that disability from work resulted from the employment injury.5
The Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify their disability and entitlement to
compensation.6 Appellant has the burden to establish disability for work based on rationalized
medical opinion evidence. There is no such evidence in this case. Drs. Edgeworth and Witt did
not offer sufficient opinion or supporting medical rationale regarding specific dates that appellant
was disabled for work.
OWCP also received physical therapy notes. However, records from a physical therapist
do not constitute competent medical opinion. A physical therapist is not a “physician” as defined
under FECA.7 Thus, the physical therapy records are of no probative medical value.
The Board notes that appellant would be entitled to compensation for a reasonable
amount of time, generally four hours, missed from work due to medical treatment or testing for
her employment-related condition.8 While appellant has not specifically claimed that she
sustained wage loss due to medical treatment, a supplemental rolls payment report dated July 30,
2013 substantiates that OWCP determined that she was entitled to wage loss for medical
appointments of four hours each on seven dates from January 9, 2012 until March 25, 2013.
Appellant has not established that she is entitled to additional wage-loss benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.9
CONCLUSION
The Board finds that appellant has not met her burden to establish that she was entitled to
compensation for wage loss from December 5, 2011 to May 20, 2013.

5

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

6

Paul E. Thams, 56 ECAB 503 (2005).

7

See David P. Sawchuk, 57 ECAB 316 (2006).

8

See G.S., Docket No. 11-949 (issued November 14, 2011).

9

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605, 10.607.

4

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, New York, NY, Employer
__________________________________________

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

Docket No. 16-0712
Issued: November 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 26, 2016 appellant filed a timely appeal of a January 20, 2016 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $19,366.70; (2) whether OWCP properly denied
waiver of recovery of the overpayment; and (3) whether OWCP properly required repayment of
the overpayment by deducting $700.00 from each of appellant’s continuing compensation
payments.
On appeal, appellant asks the Board to consider new evidence regarding her financial
situation. She notes that at the time of the prerecoupment hearing she was attending to her
1

5 U.S.C. § 8101 et seq.

husband’s health problems and failed to adequately address his medical bills. Appellant also
notes that, now that he has died, she had to discontinue carrying him as a dependent under
FECA, which resulted in decreased income under FECA.
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 decisions are herein incorporated herein by reference. The
relevant facts are as follows.
On June 13, 2007 OWCP accepted appellant’s October 16, 2000 claim for anxiety and
depressive disorder. Appellant received retroactive wage-loss compensation benefits from
April 24, 2001 and continuing on the periodic rolls. She completed regular EN1032 forms.
The Social Security Administration (SSA), in a form dated July 31, 2014, informed
OWCP of the amount of retirement benefits appellant received, with FERS and also the
hypothetical amount that she would have received without FERS, as of September 1, 2009.
By letter dated August 27, 2014, OWCP informed appellant that she received an
overpayment because she had received probative dual benefits under FECA and the SSA. It
noted that, for the period September 1, 2009 through August 23, 2014, she received dual
compensation in the amount of $19,366.70. OWCP calculated this overpayment as follows: for
the period September 1, 2009 through November 30, 2011, a period of 821 days, appellant
received an overpayment of $7,724.62; for the period December 1, 2011 through January 31,
2012, a period of 62 days, appellant received an overpayment of $604.40; for February 1,
through November 30, 2012, a period of 304 days, appellant received an overpayment of
$3,532.75; for the period December 1, 2012 through November 30, 2013, a period of 365 days,
appellant received an overpayment of $4,313.82; and for the period December 1, 2013 through
August 23, 2014, a period of 266 days, appellant received an overpayment in the amount of
$3,191.12. The total of these overpayments is $19,366.70.
On July 7, 2015 OWCP issued a preliminary determination that appellant had been
overpaid in the amount of $19,366.70 because she received dual benefits from OWCP and SSA
for the period September 1, 2009 through August 23, 2014, without FERS offset amount applied
to her OWCP benefits.3 It found that she was without fault in creating the overpayment.
2

Docket No. 02-1239 (issued January 16, 2003) (the Board remanded the case as appellant had submitted
sufficient evidence to raise an uncontroverted inference of causal relationship in appellant’s claim for an emotional
condition and therefore OWCP was required to further develop the case record); Docket No. 08-1689 (issued
June 19, 2009) (the Board found that OWCP failed to meet its burden of terminating appellant’s medical and
disability benefits as of May 31, 2002).
3

The Board notes that the cover letter to this determination and the January 20, 2016 decision, contained a
typographical error by noting the start date of the overpayment as September 1, 2011. The accompanying
memorandum explaining how the overpayment was calculated noted the correct date of September 1, 2009 and
explained to appellant how the different periods of overpayment were calculated. As such the typographic error is
harmless error. The Board further notes that although OWCP calculated $19,366.70 the sum total of the
overpayments is actually $19,366.71.

2

Appellant was afforded 30 days to respond to the preliminary determination of an overpayment
and to provide financial information.
By letter dated July 14, 2015, appellant, through counsel, requested a prerecoupment
hearing before an OWCP hearing representative.
On October 16, 2015 appellant completed the financial forms. The prerecoupment
hearing was conducted by telephone on November 2, 2015. Appellant alleged that she was
without fault in the creation of the overpayment. She noted that her husband had at least 67
strokes and she had been dealing with his health issues. Appellant noted that they had many
medical bills, but did not have secondary insurance to cover beyond Medicare coverage. At the
hearing, she discussed her financial forms in detail. Appellant noted that the monthly income
from SSA was $1,383.90 for her husband and $1,160.30 for herself. She noted that she received
$2,079.00 every 28 days under FECA. Appellant noted that they received $1,400.00 monthly in
rental income. With regard to expenses, she noted that mortgage was $952.72 monthly (which
included property tax), food was $450.00 per month, and clothing was $75.00 per month.
Appellant noted utilities of $832.00 monthly for the multiple properties and $1,818.00 for
miscellaneous household expenses, medical, dental, automobile, and other transportation costs.
She noted that she paid $80.00 to $100.00 a month on her American Express Card, $100.00 on
Home Depot, and $50.00 to $100.00 on Sam’s Club. Appellant paid a mortgage on her one
rental property of $944.64 and for her second rental property $512.55 in a home equity loan. In
a supplemental statement, she noted that her monthly expenses including mortgage for her
primary residence, with taxes was $925.72, electricity was $202.00, gas was $90.00, house
telephone/wireless/cable was $283.00, and water was $60.00.
Regarding assets, appellant testified that she owned two rental properties valued at
$80,000.00 and $125,000.00, she had cash on hand of less than $200.00, $19,000.00 in a
checking account, and $376.00 in savings.
By decision dated January 20, 2016, OWCP finalized the determination that appellant
received an overpayment of compensation in the amount of $19,366.70. It also determined that
although she was not at fault in the creation of the overpayment, she was not entitled to a waiver
of recovery of the overpayment as repayment would not defeat the purpose of FECA or be
against equity and good conscience. Finally, the hearing representative related that the
overpayment would be collected by deducting $700.00 from each of appellant’s continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.4

4

5 U.S.C. § 8129(a).

3

Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.5
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.6 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.7
ANALYSIS -- ISSUE 1
Appellant received both wage-loss compensation under FECA and SSA retirement
benefits from September 1, 2009 through August 23, 2014. As previously noted, the portion of
the SSA benefits she received as a federal employee as part of her FERS retirement package
concurrently with the benefits she received under FECA is a prohibited dual benefit.8 OWCP
requested and SSA provided information regarding appellant’s applicable SSA rates and their
effective dates. Based on these rates, it determined that the prohibited dual benefits she received
from September 1, 2009 through August 23, 2014 created an overpayment of compensation in
the amount of $19,366.70.9
The Board has reviewed OWCP’s calculations of benefits received for the period
September 1, 2009 through August 23, 2014 and finds that OWCP properly determined that
appellant received dual benefits totaling $19,366.70 for this period, thus creating an overpayment
of compensation in that amount.

5

Id. at § 8116(d). See D.S., Docket No. 12-689 (issued October 10, 2012); G.B., Docket No. 11-1568 (issued
February 15, 2012); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000.4(e)(2) (February 1995); Chapter 2.1000.11 (February 1995). OWCP does not require an election
between FECA benefits and SSA benefits except when they are attributable to the employee’s federal service. See
also R.C., Docket No. 09-2131 (issued April 2, 2010).
7

FECA Bulletin No. 97-09 (issued February 3, 1997).

8

See P.G., Docket No. 13-589 (issued July 9, 2013); id.

9

See C.N., Docket No. 16-0134 (issued March 8, 2016).

4

LEGAL PRECEDENT -- ISSUE 2
If OWCP finds that the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of
FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.10
Recovery will defeat the purpose of FECA if both: (a) the individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, and mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first
$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from
recoupment as a necessary emergency resource. If an individual has current income or assets in
excess of the allowable amount, a reasonable repayment schedule can be established over a
reasonable, specified period of time. It is the individual’s burden to submit evidence to show
that recovery of the overpayment would cause the degree of financial hardship sufficient to
justify waiver.11 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.12
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.13 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right, or changes his or her position for the
worse.14
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience.15

10

20 C.F.R. § 10.434. See 5 U.S.C. § 8129(b).

11

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004). See Miguel A. Muniz, 54 ECAB 217 (2002); id. at §§ 10.436 and 10.437.
12

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

13

20 C.F.R. § 10.437(a).

14

Id. at § 10.437(b).

15

Id.

5

The hearing representative determined that appellant’s income exceeded her debt by
$727.20 per month. He noted that she had income of approximately $6,022.20 per month
($2,543.20 SSA benefits, $2,079.00 in FECA benefits, and $1,400.00 rental income). The
hearing representative listed appellant’s expenses as $5,295.00 per month, which included
$2,120.00 for rent/mortgage including property taxes; $450.00 for food; $75.00 for clothing;
$832.00 for utilities; and other expenses of $1,818.00 (appellant had large medical expenses due
to her husband having numerous strokes). As this leaves her with a surplus of $727.20, the
Board finds that she is not entitled to waiver of recovery of the overpayment as she did not need
substantially all of her income to meet current ordinary and necessary expenses.16 The Board
also notes that appellant’s assets, which include $19,000.00 in a checking account, exceed the
resource base.17
The Board therefore finds that OWCP properly concluded that recovery of the
overpayment would not cause financial hardship to appellant and thus defeat the purpose of
FECA. Moreover, as appellant made no argument that she gave up a valuable right or changed
her position for the worse in reliance on the overpaid compensation, OWCP properly determined
that recovery would not be against equity and good conscience. OWCP properly denied waiver
of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize hardship.18
ANALYSIS -- ISSUE 3
The hearing representative required repayment of the $19,366.70 overpayment by
deducting $700.00 from appellant’s continuing compensation payments every four weeks. The
Board finds that OWCP abused its discretion in setting the amount of recovery of the
overpayment because there was no discussion of the relevant factors found in section 10.441 of
the implementing federal regulations nor did the hearing representative apply the factors to her
specific financial circumstances.19 The hearing representative simply declared, after denying

16

See R.M., Docket No. 07-1066 (issued February 6, 2009).

17

Supra note 11.

18

The Board has jurisdiction to review the issue of recovery of an overpayment in those cases where OWCP
seeks recovery from continuing compensation benefits. See Desiderio Martinez, 55 ECAB 245, 251 (2004); see
also J.M., Docket No. 10-1913 (issued July 11, 2011).
19

Id. See also L.M., Docket No. 12-405 (issued October 1, 2012).

6

waiver of recovery of the overpayment, that OWCP should commence deduction from
appellant’s continuing payments in the amount of $700.00.20
The Board will set aside the January 20, 2016 finding with respect to the issue of
recovery only. On remand, OWCP should evaluate the factors under section 10.441 and provide
justification for determining the recovery amount.
Following any necessary further
development, it shall issue a de novo decision on that aspect of appellant’s claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $19,366.70 and properly denied waiver of recovery of the
overpayment. However, the Board finds that OWCP abused its discretion with regard to
determining the amount of recovery.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 20, 2016 is affirmed in part and set aside in part and
remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: November 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

The Board notes that it cannot consider any new financial information submitted by appellant after the
January 20, 2016 decision, as the Board’s review is limited to evidence in the case record at the time OWCP made
the decision over which the Board has jurisdiction. See 20 C.F.R. § 501.2(c)(1).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Anniston, AL, Employer
__________________________________________

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Appearances:

Docket No. 13-316
Issued: June 20, 2013

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On November 26, 2012 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ (OWCP) decisions dated September 6 and November 1, 2012.
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.
ISSUES
The issues are: (1) whether appellant has a ratable hearing loss warranting a schedule
award; (2) whether OWCP properly exercised its discretion in denying hearing aids; and
(3) whether its refusal to reopen appellant’s case for further consideration of the merits pursuant
to 5 U.S.C. § 8128(a) constituted an abuse of discretion.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 61-year-old machinist
supervisor, filed an occupational disease claim on September 10, 2008, alleging that he sustained
a bilateral hearing loss caused by factors of his federal employment. He was exposed to noise
generated by punch and hydraulic presses, stud lathes, impact wrenches, air chisels and grinders,
chipping hammers, crane horns and ventilation fans. Appellant submitted several audiograms
which showed varying degrees of hearing loss.
OWCP referred appellant for a second opinion examination to Dr. Robert Hurlbutt, a
Board-certified otolaryngologist. In a January 9, 2009 report, Dr. Hurlbutt found that appellant
did not have a ratable hearing loss. He reviewed the statement of accepted facts and
administered audiometric testing. Dr. Hurlbutt opined that, although appellant was intermittently
exposed to hazardous noise in the course of his federal employment, the exposure was
insufficient to cause hearing loss.
By decision dated January 26, 2009, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that he sustained a work-related hearing loss. By decision
dated November 18, 2009, it modified the January 26, 2009 decision to find the medical
evidence sufficient to establish that appellant sustained work-related bilateral sensorineural
hearing loss. OWCP denied a schedule award on the grounds that he did not sustain a ratable
impairment. In a nonmerit decision dated January 27, 2010, it denied appellant’s request for
reconsideration. By decision dated September 23, 2010, OWCP denied modification of the
November 18, 2009 decision. In a decision dated September 23, 2010, it denied modification of
the November 18, 2009 decision. By decision dated September 23, 2011,2 the Board affirmed
the September 23, 2010 OWCP decision. The facts of this case as set forth in the Board’s
September 23, 2011 decision are incorporated by reference.
On December 15, 2011 appellant submitted several audiograms, which showed varying
degrees of hearing loss. In a September 28, 2011 report, Dr. J. Scott Robertson, a Boardcertified otolaryngologist, provided a September 28, 2011 audiogram and opined that appellant
had a bilateral sensorineural hearing loss. He recommended hearing aids. Appellant submitted
additional audiograms which were previously submitted to OWCP.
In order to determine whether appellant had any ratable impairment OWCP referred him
for a second opinion examination with Dr. Dennis G. Pappas, a Board-certified otolaryngologist.
In a January 23, 2012 report, Dr. Pappas found that appellant had no ratable hearing loss. An
audiogram dated January 23, 2012, with an attached calibration certificate, showed hearing
levels of 10, 10, 20 and 60 decibels (dB) on the right at 500, 1,000, 2,000 and 3,000 hertz (Hz),
respectively and 15, 15, 20 and 50 dB on the left. Based on the audiogram results, appellant had
a nonratable hearing loss pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (sixth edition). He diagnosed bilateral,
progressive sensorineural hearing loss compatible with noise exposure. Dr. Pappas stated that
appellant’s workplace exposure was of sufficient intensity and duration to have caused and/or
2

Docket No. 11-290 (issued September 23, 2010).

2

aggravated noise-induced hearing loss. He stated that appellant had a moderate to moderately
severe high frequency loss in either ear and recommended hearing protection and hearing aids.
In a February 2, 2012 report, an OWCP medical adviser reviewed the results of the
January 23, 2012 audiogram. He determined that appellant had a nonratable work-related
bilateral hearing loss. The medical adviser checked a box indicating that appellant would not
benefit from hearing amplification.
By decision dated February 7, 2012, OWCP found that appellant was not entitled to a
schedule award because the medical evidence established that his bilateral hearing loss was
nonratable. It also found that he did not require the use of hearing aids.
By letter dated March 12, 2012, appellant requested an oral hearing, which was held on
June 11, 2012. At the hearing, he contended that he was entitled to be reimbursed for purchasing
hearing aids, given that Dr. Pappas and other physicians had recommended that he needed them
to enhance his hearing. Appellant testified regarding the difficulties he had in hearing
conversations.
By decision dated September 6, 2012, an OWCP hearing representative affirmed the
February 7, 2012 decision. She found that Dr. Robertson’s September 28, 2011 report was of
reduced probative value because he did not address whether appellant had been exposed to noise
within the previous 16 hours, as required by the Federal (FECA) Procedure Manual, Part 3 -Medical, Hearing Loss, Exhibit 4 (August 2011).3
By letter received by OWCP on October 9, 2012, appellant requested reconsideration.
He resubmitted Dr. Robertson’s September 28, 2011 report. Appellant also submitted a letter
from Jennifer Smith, the audiologist, who performed the September 28, 2011 audiogram for
Dr. Robertson. Ms. Smith stated:
“[Appellant] has requested that his audiological work up from September 28,
2011 be resubmitted to your office with the required information listed in your
report. It was stated that the time and previous exposure to noise was not
indicated on his last report. Our EHR system maintains this information and on
September 28, 2011 audiological testing was completed on [appellant] at 11:00
a.m. and at the time of testing [appellant] reported no significant history of noise
exposure for at least several months. It has been noted in several reports that
[appellant] did suffer from noise[-]induced hearing loss as mentioned in the
current report being used from Dr. Pappas’ office; however[,] the degree of loss
did not meet the standards for compensation. The visit on September 28, 2011
indicates a mild[-]to[-]severe sensorineural hearing loss for both the left and right
ears. According to the A.M.A., Guides this loss yields a hearing impairment of
9.38 percent in the right ear and 1.88 percent in the left ear resulting in a binaural
loss of 18.78 percent. Please take this audiometric data into consideration when
reviewing [appellant’s] case.”
3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Hearing Loss, Chapter 3.600.8 Exhibit 4 (August 2011);
Janice M. Hatcher, 55 ECAB 155 (2003).

3

Appellant also submitted a September 10, 2012 letter from Colonel Cedric McCord, the
employing establishment’s medical director; a September 10, 2012 audiogram report; a
September 17, 2012 audiogram report and a September 18, 2012 report from Dr. Paul V.
Stephens, Board-certified in otolaryngology, who stated that appellant had a mild-to-moderately
severe bilateral sensorineural hearing loss and attached a September 18, 2012 which documented
the hearing loss. Dr. Mitchell advised that the pattern of hearing loss appeared to be consistent
with exposure to noise.
By decision dated November 1, 2012, OWCP denied appellant’s application for review
on the grounds that it did not raise any substantive legal questions or include new and relevant
evidence sufficient to require it to review its prior decision. It advised him that, as he had
presented new evidence of continued noise exposure, he should file a new occupational disease
claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA4 and its implementing regulations5 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged.8 Then, the fence of 25 dB is deducted. The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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

4

5 U.S.C. § 8107.

5

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

6

Id.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Special Determinations, Chapter 3.700(4)(b)
(January 2010).
8

Id.

9

Id.

4

six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.11
The requirements of the evidence to be used in evaluating occupational hearing loss
claims require that the employee should undergo audiological evaluation and otological
examination; that the audiological testing precede the otologic examination; that the audiological
evaluation and otologic examination be performed by different individuals as a method of
evaluating the reliability of the findings; that the clinical audiologist and otolaryngologist be
certified; that all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the American Speech and Hearing Association that the
audiometric test results include both bone conduction and pure-tone air conduction thresholds;
speech reception thresholds and monaural discrimination scores; and that the otolaryngologist’s
report include the date and hour of examination; date and hour of the employee’s last exposure to
loud noise; a rationalized medical opinion regarding the relationship.12
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a bilateral hearing loss due to noise exposure
from his federal employment.13 The issue is whether he sustained a ratable impairment in
accordance with the A.M.A., Guides.
Dr. Pappas, a second opinion physician, provided a February 2, 2012 audiogram, with the
requisite certification information and a calibration certificate, showing hearing levels of 5, 5, 10
and 25 dB on the right at 500, 1,000, 2,000 and 3,000 Hz, respectively, to find an average of
11.25. The average of 11.25 dB, reduced by 25 dB (the first 25 dB are discounted as discussed
above) to total 0 dB. With regard to the left ear, the audiogram showed hearing levels of 5, 5, 5
and 25 dB on the left at 500, 1,000, 2,000 and 3,000 Hz, respectively, averaged 10 dB. The
average of 10 dB, reduced by 25 dB (the first 25 dB are discounted), equals 0 dB. Based on this
test, Dr. Pappas determined that appellant did not sustain a ratable hearing loss.14 The Board
finds that he properly applied the A.M.A., Guides to the February 2, 2012 audiogram to
determine that appellant did not sustain a ratable hearing loss for schedule award purposes.15
Dr. Pappas provided a thorough examination and a reasoned opinion explaining how the
findings on examination and testing did not result in a ratable hearing loss. The Board finds that

10

Id.

11

See Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision) Docket No.
01-1570 (issued August 13, 2002).
12

See Joshua Holmes, 42 ECAB 231 (1990).

13

Frantz Ghassan, 57 ECAB 349 (2006); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Award and Permanent Disability Claims, Chapter 2.808.6(d) (August 2002).
14

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

15

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

5

Dr. Pappas’ report represents the weight of medical evidence at the time of OWCP’s February 7,
2012 decision.
OWCP’s medical adviser properly applied the applicable standards of the A.M.A.,
Guides, to determine that appellant did not have a ratable hearing loss. The Board will affirm the
September 6, 2012 decision of OWCP’s hearing representative.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 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.16 Following medical evaluation of a claim, if the hearing loss is
determined to be nonratable for schedule award purposes, other benefits such as hearing aids
may still be payable if any employment-related hearing loss exists.17
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision as to whether appellant
requires hearing aids. OWCP accepted that appellant sustained a work-related hearing loss,
albeit nonratable. Dr. Robertson, an attending physician, and Dr. Pappas recommended hearing
aids for appellant. At the hearing held on June 11, 2012, appellant testified regarding the
difficulties he encountered in hearing normal conversations. The medical adviser checked a box
indicating that appellant did not require the use of hearing aids. OWCP relied on this
recommendation to deny hearing aids in its February 7 and September 6, 2012 decisions. As
noted above, the only restriction on OWCP’s authority to authorize medical treatment is one of
reasonableness. OWCP should have requested that the medical adviser further address why
hearing aids should not be authorized, since they were recommended by both Dr. Robertson and
Dr. Pappas. On remand, it shall clarify this issue.
LEGAL PRECEDENT -- ISSUE 3
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by OWCP; or by submitting
relevant and pertinent evidence not previously considered by OWCP.18 Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.19 When a claimant fails to meet one of the above standards, it is a

16

5 U.S.C. § 8103.

17

R.R., Docket No. 12-1840 (issued February 14, 2013); see F.D., Docket No. 10-1175 (issued January 4, 2011).

18

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

19

Howard A. Williams, 45 ECAB 853 (1994).

6

matter of discretion on the part of OWCP whether to reopen a case for further consideration
under section 8128(a) of FECA.20
ANALYSIS -- ISSUE 3
The Board has reviewed the case record and finds that OWCP’s refusal to reopen
appellant’s case for further consideration of the merits pursuant to 5 U.S.C. § 8128(a),
constituted an abuse of discretion.
The Board notes that if a claim for hearing loss is accepted as causally related and the
issue is one of ratability for a schedule award, an audiogram prepared by an audiologist may
determine the percentage of hearing loss if the audiogram is accompanied by a physician’s
opinion certifying that the audiogram as accurate and that the audiologist properly determined
the percentage of appellant’s hearing loss by utilizing the approved standardized procedures.21
In support of his reconsideration request, appellant submitted the October 9, 2012 letter
from Ms. Smith, the audiologist, who performed the September 28, 2011 audiogram for
Dr. Robertson. Ms. Smith noted that OWCP had found Dr. Robertson’s report deficient because
the time and previous exposure to noise was not indicated on his report. She stated that her
office records reflected that the September 28, 2011 testing was completed at 11:00 a.m. and, at
the time of testing, appellant reported no significant history of noise exposure for at least several
months. The Board finds that this letter constitutes relevant and pertinent evidence not
previously considered by OWCP in regard to the issue of whether the September 28, 2011
audiogram was valid and shows a ratable hearing loss. Therefore, its refusal to reopen
appellant’s case for further consideration of the merits of his claim constituted an abuse of
discretion.22 The Board will set aside the November 1, 2012 decision and remand the case for a
review of the merits of appellant’s claim.
CONCLUSION
The Board affirms the September 6, 2012 OWCP decision finding that appellant did not
establish a ratable hearing loss warranting a schedule award. The Board finds that the issue of
whether hearing aids should be authorized requires further development. The Board finds that
OWCP abused its discretion by refusing to reopen appellant’s case for further consideration of
the merits.

20

Joseph W. Baxter, 36 ECAB 228, 231 (1994).

21

Joshua A. Holmes, 42 ECAB 231, 236 (1990); Rubel Garcia, 33 ECAB 1171 (1982).

22

Carol Cherry (Donald Cherry), 47 ECAB 658 (1996).

7

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed. The November 1, 2012 nonmerit decision is set
aside and remanded for further consideration of the merits of the claim, to be followed by an
appropriate decision.
Issued: June 20, 2013
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 17-1339
Issued: August 21, 2018

Case Submitted on the Record

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

JURISDICTION
On June 1, 2017 appellant filed a timely appeal from a December 22, 2016 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 established more than four percent monaural (left ear)
hearing loss, for which he previously received a schedule award.
FACTUAL HISTORY
On April 15, 2014 appellant, a 64-year-old customs and border protection officer, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to exposure to
1

5 U.S.C. § 8101 et seq.

high noise levels while in the performance of his federal duties. He stated that in his career serving
at an airport in San Antonio, Texas from November 1979 until his retirement and in a collateral
duty as a firearms instructor from 1986 to 2009, he was exposed to the noise from thousands of
commercial and private aircraft. Appellant retired on December 11, 2011.
In an April 24, 2014 letter, OWCP notified appellant of the deficiencies of his claim and
afforded him 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted a May 6, 2014 narrative statement reiterating his
employment history.
OWCP referred appellant and a statement of accepted facts to Dr. William Carl Smith, a
Board-certified otolaryngologist, for a second opinion evaluation. Dr. Smith performed an
otologic evaluation of appellant on January 7, 2015 and audiometric testing was obtained on his
behalf. Testing at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed
the following: right ear 10, 5, 10, and 65 decibels; left ear 10, 5, 35, and 60 decibels. Dr. Smith
determined that appellant sustained binaural hearing loss due to his exposure to noise in the
workplace. He recommended hearing aid amplification.
On August 27, 2014 an OWCP medical adviser, Dr. Ronald H. Blum, a Board-certified
internist, reviewed Dr. Smith’s report and the audiometric testing of January 7, 2015. He
concluded that, in accordance with the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment, (A.M.A., Guides),2 appellant had 3.75 percent
monaural hearing impairment in the left ear, 0 percent monaural hearing impairment in the right
ear, and 0.6 percent binaural hearing impairment. Dr. Blum recommended hearing aids and noted
that the date of maximum medical improvement was January 7, 2015, the date of Dr. Smith’s
second opinion examination and report.
By decision dated January 14, 2015, OWCP accepted that appellant sustained bilateral
hearing loss due to noise exposure. It further found that appellant was entitled to hearing aids.
On August 3, 2015 OWCP authorized appellant’s request for binaural hearing aids.
On August 13, 2015 appellant filed a claim for a schedule award (Form CA-7).
By decision dated January 26, 2016, OWCP granted appellant a schedule award for four
percent monaural (left ear) hearing loss, entitling appellant to two weeks of compensation. The
period of the award ran from January 7 to 21, 2015. OWCP explained that it had rounded
Dr. Blum’s 3.75 percent loss rating up to 4 percent in accordance with FECA policy,3 which paid
claims for a schedule award in whole percentages.
On February 19, 2016 appellant requested an oral hearing by a representative of OWCP’s
Branch of Hearings and Review. He submitted an audiogram dated July 2, 2015 and a May 25,
2

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

3
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (January 2010)
(results should be rounded down for figures less than .5 and up for .5 and over).

2

2012 report from Dr. Benjamin D. Webb, a Board-certified otolaryngologist, who diagnosed
chronic pharyngitis and checked boxes indicating that appellant had otalgia, tinnitus, and
sensorineural hearing loss.
A telephonic hearing was held before an OWCP hearing representative on October 7, 2016.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
Subsequently, appellant resubmitted the May 25, 2012 from Dr. Webb and an audiogram
dated July 15, 2016 from Dr. Stephen J. Talley, a Board-certified otolaryngologist. Testing at the
frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed the following: right
ear 15, 10, 35, and n/a decibels; left ear 5, 10, 15, and n/a decibels. Appellant argued at the hearing
that this new diagnostic testing, along with his diagnosis of tinnitus, established entitlement to a
total schedule award for 14 percent bilateral hearing impairment based upon his own calculations
from his review of the medical records.
By decision dated December 22, 2016, OWCP affirmed its prior decision finding that the
additional medical evidence received was insufficient to establish more than four percent monaural
(left ear) hearing loss, for which he previously received a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA 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 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 (6th
ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has concurred
in such adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 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 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

4

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

3

amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.5
ANALYSIS
The Board finds that appellant has not established more than four percent monaural (left
ear) hearing loss, for which he previously received a schedule award.
OWCP’s medical adviser, Dr. Blum, reviewed the report of Dr. Smith, to whom OWCP
referred appellant for an otologic examination and audiological evaluation. Dr. Smith determined
that appellant sustained binaural hearing loss due to his exposure to noise in the workplace.
Dr. Blum concluded that appellant had four percent monaural (left ear) hearing loss. He properly
applied OWCP’s standardized procedures to Dr. Smith’s January 7, 2015 audiogram which
recorded frequency levels at the 500, 1,000, 2,000, and 3,000 cycles per second levels and revealed
decibel losses of 10, 5, 10, and 65 respectively in the right ear for a total decibel loss of 90 on the
right. Dr. Blum then followed established procedures and divided this total by 4 which resulted in
an average loss of 22.5 decibels and subtracted the fence of 25 decibels to equal 0 decibels. He
then multiplied this by the established factor of 1.5 to result in 0 percent monaural hearing loss for
the right ear. Dr. Blum then properly followed the same procedure on the left, noting that the test
results for the left ear at the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second revealed
decibel losses of 10, 5, 35, and 60 decibels respectively, for a total of 110 decibels. He divided
this by 4, for an average hearing loss of 27.5 decibels, subtracted the fence of 25 decibels to equal
2.5 decibels, and multiplied this by the established factor of 1.5, for a 3.75 percent monaural
hearing loss for the left ear. The report therefore established that, after rounding up,6 appellant
was entitled to a schedule award for four percent monaural (left ear) hearing loss.7
A schedule award provides for payment of compensation for a specific number of weeks
as prescribed by the statute.8 With regard to appellant’s contention that he was entitled to a
schedule award for greater than 4 percent monaural hearing loss, section 8107(c)(13)(B) provides
that for 100 percent loss of hearing of one ear, a claimant is entitled to 52 weeks’ compensation.9
As appellant sustained four percent monaural hearing loss, he is entitled to two weeks’
compensation, which is what OWCP awarded.10

5

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
6

The Board notes OWCP’s policy to round the calculated percentage of impairment to the nearest whole number.
See J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See also Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (January 2010).
7

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

8

5 U.S.C. § 8107.

9

5 U.S.C. § 8107(c)(13)(B).

10

OWCP correctly calculated that four percent of 52 weeks equals 2 weeks.

4

The Board finds that there is no current medical evidence of record supporting a ratable
hearing loss greater than the four percent monaural hearing loss previously awarded. It is
appellant’s burden of proof to submit evidence of additional hearing loss under OWCP’s
standardized procedures for rating hearing impairment.11 He has failed to submit such evidence
in support of his claim. Appellant also contends on appeal that OWCP failed to consider his
tinnitus condition in its schedule award decision. Regarding tinnitus, the A.M.A., Guides allows
for compensation of up to five percent for tinnitus in the presence of measurable hearing loss if
the tinnitus impacts the ability to perform activities of daily living.12 Although Dr. Webb
diagnosed tinnitus, OWCP has not accepted tinnitus as an employment-related condition in this
case.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established more than four percent monaural (left
ear) hearing loss, for which he previously received a schedule award.

11

See J.B., Docket No. 15-1474 (issued March 4, 2016).

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

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ORDER
IT IS HEREBY ORDERED THAT the December 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2018
Washington, DC

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

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

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

6