United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 17-0240
Issued: July 25, 2017

Case Submitted on the Record

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

JURISDICTION
On November 11, 2016 appellant, through counsel, filed a timely appeal from a
September 12, 2016 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 to consider 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 met her burden of proof to establish a recurrence of
disability commencing March 21, 2015, causally related to a January 14, 2009 employment
injury.
FACTUAL HISTORY
This matter has previously been before the Board.3 The facts and circumstances outlined
in the Board’s prior decision are incorporated herein by reference, the relevant facts are as
follows.
On January 14, 2009, appellant then a 40-year-old mail handler, filed traumatic injury
claim (Form CA-1) alleging that she injured her right leg and back when a coworker ran a power
jack into the side of a hand jack which struck her in the leg. She did not stop work.
Appellant was seen in an emergency room on January 15, 2009 by Dr. George Hobbib,
Board-certified in emergency medicine, for a right lower leg and low back injury. She had a
history of low back pain, lumbar degenerative disc disease, and a pinched nerve. Dr. Hobbib
diagnosed leg contusion and back pain. He released appellant to return to work the next day with
limited right leg use.
Appellant was treated by Dr. Lisa Affatato, a Board-certified internist, on February 11,
2009, who returned appellant to work with restrictions. In a duty status form dated August 20,
2010, Dr. Affatato diagnosed back pain, right leg and ankle contusion. She indicated that
appellant could return to work eight hours per day with restrictions.
On October 8, 2010 the employing establishment offered and appellant accepted a
modified assignment as a regular mail handler, 8:30 a.m. to 5:00 p.m., subject to the restrictions
set forth by Dr. Affatato.
The case was dormant until appellant submitted a May 1, 2012 attending physician’s
report (Form CA-2) from Dr. Affatato, who noted that appellant was hit on the right leg at work
on January 14, 2009. She diagnosed lumbar herniated disc by magnetic resonance imaging
(MRI) scan and noted by checking a box marked “yes” that appellant’s condition was caused or
aggravated by work activity. On March 21, 2013 appellant was treated for back and leg pain.
Dr. Affatato noted paralumbar tenderness and diagnosed lumbar disc disease and knee pain.
On March 29, 2013 appellant filed a claim for a recurrence of disability (Form CA-2)
alleging that on January 9, 2013 she had a recurrence of disability when she was, sitting and
standing at work which triggered a bad reaction in her back and legs. She noted developing a
herniated disc in her back and arthritis in her knee due to her work duties.
On March 21 2013 Dr. Affatato treated appellant for back and leg pain. Appellant
reported back pain after sitting for any brief period of time as well as swelling of the legs. She
3

Docket No. 14-1619 (issued January 26, 2014).

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ordered right knee x-rays and prescribed medication and physical therapy. Appellant submitted a
return to work slip from Dr. Affatato on April 4 and May 3, 2013, who indicated that appellant
was disabled from work due to arthritis of the spine and a right leg injury.
Dr. Affatato noted in a July 8, 2013 report that appellant’s first MRI scan in March 2009
revealed degenerative disc disease and a subsequent MRI scan in April 2012 revealed significant
changes at level L5-S1. She opined that the changes may partly be explained by repeated lifting
of 30 to 50 pounds over multiple years, but the changes were arthritic in nature and may also be
related to the aging process. Dr. Affatato noted that it was difficult to determine how much of
appellant’s symptoms were related to what occurred in 2009 since there were significant gaps
between visits, diagnostic study recommendations, and treatment.
On May 7, 2013 OWCP advised that appellant’s claim initially appeared to be a minor
injury that resulted in minimal or no lost time from work and limited medical expenses had been
administratively paid. It advised that it was reopening the matter since she had claimed a
recurrence of disability. OWCP informed appellant that her January 14, 2009 traumatic injury
claim had been accepted for contusions of the right lower leg and back.
On May 22, 2013 OWCP advised appellant that a new occupational disease claim was
administratively created using the Form CA-2a she had filed on March 29, 2013, with a date of
injury of January 9, 2013. On June 11, 2013 it assigned OWCP File No. xxxxxx808.
Appellant subsequently provided an October 22, 2012 lumbar spine MRI scan which
showed minimal grade retrolisthesis of L5 on S1 on a degenerative basis and small disc
herniations at L4-5 and L5-S1.
In a decision dated July 12, 2013, OWCP denied appellant’s occupational disease claim
in OWCP File No. xxxxxx808 because she failed to establish that her medical condition was
causally related to work events. On August 8, 2013 appellant requested an oral hearing which
was held before an OWCP hearing representative on January 23, 2014.
In an October 2, 2013 return to work slip, Dr. Affatato returned appellant to work-light
duty on October 5, 2013 with restrictions of sitting limited to 30 minutes, no lifting, standing
limited to 20 minutes, and 15 to 20 minutes of walking. In an undated report, she noted that as a
result of the January 2009 work accident appellant sustained leg and back pain. Dr. Affatato
advised that appellant’s back pain started in 2002 and her leg pain began after the 2009 accident.
On February 4, 2014 she opined that the January 2009 injury resulted in ongoing weakness, right
leg pain with presumed nerve injury based on appellant’s radicular symptoms, right ankle
tenosynovitis, and chronic pain and swelling.
On January 27 and 28, 2014 appellant was treated by Dr. Robert Rajczy, a podiatrist, for
pain on the inside of her foot and ankle. She reported having a 2009 injury at work where she
was hit with a power jack and was treated for back and leg pain. Dr. Rajczy diagnosed
tendinitis, nerve entrapment of the foot, and limb pain. He noted that right foot and ankle x-rays
revealed no arthritic or degenerative changes and no fractures or dislocations. Dr. Rajczy noted
evidence of pes planus foot type and dispensed an ankle brace.

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In a March 24, 2014 decision, an OWCP hearing representative affirmed the July 12,
2013 decision, which denied appellant’s occupational disease claim. She also instructed OWCP
to administratively combine File Nos. xxxxxx313 and xxxxxx808 and to develop appellant’s
claim for a recurrence of disability. On April 2, 2014 OWCP administratively combined the two
claims. On August 26, 2014 appellant appealed the March 24, 2014 decision to the Board.4 The
Board affirmed the March 24, 2014 decision by decision dated August 26, 2014.
Appellant subsequently submitted reports from Dr. Eric Ratner, a Board-certified
anesthesiologist, dated July 2 and 9, August 6, and September 10, 2013, in which he
administered bilateral L3-4, L4-5, and L5-S1 intra articular facet joint injections. Dr. Ratner
diagnosed bilateral lumbar facet disease causing bilateral axial back pain and bilateral L5-S1
radiculitis. In his July 2, 2013 report, he noted that appellant presented with low back and lower
extremity pain. Dr. Ratner indicated that she injured her low back in 2008 and 2009 and was
diagnosed with a herniated disc in 2009. He noted that a lumbar MRI scan in 2009 revealed a
disc herniation at L5-S1 and a subsequent MRI scan in October 2012 showed disc herniation at
L4-5 and L5-S1 with facet inflammation from L3 to S1 bilaterally. Dr. Ratner diagnosed lumbar
facet inflammation from L3-S1 bilaterally and displaced disc at L4-5 and L5-S1 causing
discogenic and radiculitis. In July 30 to September 24, 2013 reports, he noted that the bilateral
lumbar facet injections provided 80 percent pain relief for a brief time. On October 7, 2014 and
January 13, 2015 Dr. Ratner noted that appellant underwent L5-S1 transforaminal epidural
injections for leg pain with some relief.
On March 24, 2015 appellant filed a claim for a recurrence of disability (Form CA-2a)
alleging a recurrence of disability for which she stopped work on March 21, 2015. The
employing establishment advised that she worked limited duty after the original injury.
Appellant submitted a March 24, 2015 note from Dr. Ratner who reported providing right L5-S1
transforaminal and caudal epidural steroid injections with good relief of pain.
On April 16, 2015 OWCP advised appellant of the type of evidence needed to establish
her recurrence claim. It particularly requested that she submit a physician’s reasoned opinion
addressing the relationship of her claimed recurrent condition and her original injury, along with
a description of her current symptoms, recent diagnostic studies, a current diagnosis description
of work duties she was unable to perform on the date of recurrence, and a recommended course
of treatment.
Appellant subsequently submitted a March 29, 2015 report from Dr. Ratner who
diagnosed degenerative disc disease and radiculopathy. Dr. Ratner noted that on March 10, 2015
she underwent right L5-S1 transforaminal and caudal epidural steroid injections with good pain
relief. Appellant reported that her condition worsened with prolonged sitting and walking.
Dr. Ratner noted no changes in her physical examination. Also submitted was a March 4, 2009
lumbar spine x-ray which revealed a small left paracentral disc herniation at L5-S1.
In a decision dated June 29, 2015, OWCP denied appellant’s claim for a recurrence of
disability commencing March 21, 2015.
4

Id.

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Appellant subsequently submitted a July 16, 2015 report from Dr. Ratner who treated her
for a displaced disc causing lower back pain and weakness. Dr. Ratner recommended a right L4
and L5 transforaminal injection and a caudal epidural steroid injection. He further indicated that
he would refer appellant for a functional capacity evaluation and therapy.
On August 14, 2015 appellant requested reconsideration. She submitted a March 20,
2015 e-mail from an employing establishment manager, E.A., to appellant’s supervisor, R.C.,
noting that appellant’s January 14, 2009 injury was the only claim open for medical benefits.
E.A. indicated that if appellant claimed limitations then she must provide a medical note with her
limitations as well as a request for light duty from a manager.
Appellant submitted a July 6, 2015 appeal from a May 19, 2015 decision from a state
unemployment compensation review board denying her claim for unemployment benefits. She
asserted that she worked as a limited-duty mail processor since the 2009 work injury until
March 21, 2015 when R.C. informed her that her compensation claim was closed. Appellant
contended that her 2009 claim was still open and her restrictions were still in place.
Appellant filed an Equal Employment Opportunity (EEO) complaint on August 5, 2015.
On June 16, 2015 E.A. responded to the EEO complaint and indicated that she had only one
claim that was open which occurred on January 14, 2009 and was accepted for medical benefits
for a lower leg and back injury. E.A. noted that appellant had no limitations and that there was
no duty status report (Form CA-17) in the record validating her restrictions. She advised that
appellant must submit medical documentation, listing her restrictions, along with a letter to the
plant manager requesting light duty. R.C. noted that, on June 17, 2015, several employees,
including appellant, whose claims were no longer open were requested to update their workers’
compensation paperwork or request light duty.
In a decision dated November 12, 2015, OWCP denied modification of the June 29, 2015
decision.
On June 14, 2016 appellant, through counsel, requested reconsideration. She submitted
additional evidence and asserted that the employing establishment did not have a limited-duty
job for her as the limited-duty position was withdrawn.
Appellant submitted May 12, 2015 transcript excerpts from testimony before an
unemployment compensation review board. R.C. testified that appellant’s last day of
employment was March 21, 2015 because her workers’ compensation claim was closed. He
indicated that on March 21, 2015 he informed her that her claim was closed and requested that
she provide updated medical evidence which demonstrated her claim was open or request light
duty through the plant manager. R.C. indicated that appellant did not request light duty from the
plant manager and did not provide medical information to OWCP. Appellant submitted a
portion of an August 19, 2015 decision from the Pennsylvania Unemployment Compensation
Board of Review which determined the employing establishment failed to offer her a limitedduty position, although the employing establishment was aware or should have been aware that
she had an open claim since 2009 due to work-related injuries.

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Appellant provided a March 31, 2016 report in which Dr. Ratner noted providing a right
L4-5 transforaminal epidural steroid injection. Dr. Ratner noted that she experienced myofascial
pain superimposed and secondary from the underlying disc and facet pathology which was
treated with compounded pain cream. In a follow-up assessment note dated March 31, 2016, he
diagnosed degenerative disc disease and radiculopathy. Dr. Ratner noted that on February 27,
2016 appellant had right L4-5 transforaminal and caudal epidural steroid injections with good
relief of pain. Appellant reported that her condition worsened with prolonged standing and
walking. Dr. Ratner noted no changes in her physical examination. In reports dated
December 30, 2014, March 10, June 27, and October 31, 2015, and February 27 and July 30,
2016, he performed bilateral L3-4, L4-5, L5-S1 intra articular facet joint injections. Dr. Ratner
diagnosed bilateral L4-5, L5-S1 radiculitis due to degenerative disc disease and displaced discs.
In a decision dated September 12, 2016, OWCP denied modification of its
November 12, 2015 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.5 A recurrence of disability
does not apply when a light-duty assignment is withdrawn for reasons of misconduct,
nonperformance of job duties, or other downsizing.6
OWCP procedures provide:
“It the employing [establishment] has withdrawn a limited[-]duty assignment
made specifically to accommodate the claimant’s condition due to the workrelated injury, and the withdrawal did not occur for cause, RIF, or closure of the
facility, the CE [claims examiner] need only establish continuing injury-related
disability for regular duty to accept the recurrence and begin payment of
compensation benefits.
“To do so, the CE will need to ensure that the file contains an accurate description
of the nature and extent of injury-related disability. It should be clear from the
medical evidence of record that the claimant continues to suffer residuals of work
injury that are disabling. If the evidence is insufficient, the CE will need to
request this information.”7
5

J.F., 58 ECAB 124 (2006).

6

20 C.F.R. § 10.5(x). See also Richard A. Neidert, 57 ECAB 474 (2006).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

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ANALYSIS
OWCP accepted that appellant sustained contusions of the right lower leg and back.
Appellant returned to a light-duty job and continued to work until March 21, 2015 when she
stopped work. On March 24, 2015 she filed a claim for a recurrence of disability, commencing
March 21, 2015. The Board finds that the medical record lacks a well-reasoned narrative from
appellant’s physicians relating appellant’s claimed recurrent disability to her accepted
employment injury.
Appellant submitted multiple reports from Dr. Ratner who provided treatment including
epidural steroid injections in her lumber spine. Dr. Ratner’s diagnoses included degenerative
disc disease, myofascial pain, and radiculopathy. He related that appellant’s condition worsened
with prolonged sitting and walking. However, Dr. Ratner did not specifically address whether
she had a recurrence of disability on or about March 21, 2015 causally related to the accepted
employment back and right lower leg contusions. He also did not explain how degenerative disc
disease, radiculopathy, displaced disc was causally related to the accepted conditions of
contusion of the back and right lower leg.8
Reports from Dr. Affatato dated July 8, 2013 and February 4, 2014 and Dr. Rajczy dated
January 27 and 28, 2014 do not establish the claimed recurrent condition since they predate the
time of the claimed recurrence on or about March 21, 2015 and thus, do not address the relevant
time period.
Other medical reports submitted by appellant, including reports of diagnostic testing,
failed to specifically address whether she sustained a recurrence of disability on or about
March 21, 2015 causally related to the January 14, 2009 work injury, nor did they note a
particular change in the nature of appellant’s physical condition, arising from the employment
injury that prevented her from performing her light-duty position. Therefore, the Board finds
that appellant has not met her burden of proof to establish disabling employment-related
residuals.
Appellant asserted that on March 21, 2015 the employing establishment withdrew her
limited-duty position. She contends that on March 21, 2015, R.C. incorrectly determined that
her claim was closed and he did not consider her 2009 work injury which was open for medical
benefits. However, the Board finds that appellant has not submitted sufficient medical evidence
to establish work-related disability, on or about March 21, 2015, causally related to her
January 14, 2009 work injury. The record indicates that OWCP and the employing
establishment sought updated medical evidence to support the need for continuing restrictions
due to the accepted work injury. It only stopped providing light duty when it did not receive any
updated medical evidence supporting a continuing need for light duty. The record does not

8

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, she bears the burden of proof to establish that the condition
is causally related to the employment injury).

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contain current medical records establishing ongoing restrictions as a result of appellant’s work
injury.9
Appellant did not otherwise submit medical evidence showing that she sustained a
recurrence of disability beginning on or about March 21, 2015 causally related to her January 14,
2009 work injury.10
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 that she
sustained a recurrence of disability causally related to her accepted condition.

9

See E.L., Docket No. 10-0196 (issued October 4, 2010) (the record contained no bridging medical evidence to
establish that appellant’s continuing need for light duty was necessitated by the accepted condition and not due to
other diagnosed conditions).
10

Appellant submitted a portion of a Pennsylvania, unemployment compensation review board decision.
However, the Board has held that the determination of an employee’s rights or remedies under other statutory
authority does not establish entitlement to benefits under FECA. See Beverly R. Jones, 55 ECAB 411 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the September 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 09-2158
Issued: April 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 26, 2009 appellant filed a timely appeal from the February 26, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury while in the performance of duty on
November 4, 2008.
FACTUAL HISTORY
On November 5, 2008 appellant, a 48-year-old electronics technician, filed a traumatic
injury claim alleging that he sustained injuries to his neck and back when the employment
vehicle in which he was a passenger was rear-ended by another motor vehicle. He missed no
time from work.

In a November 5, 2008 report (Form CA-16), Dr. Jason R. Koch, a chiropractor, stated
that the vehicle in which appellant was riding was hit from behind at a stoplight on the previous
day. He diagnosed cervical, thoracic and lumbar strains/sprains. Dr. Koch indicated by placing
a checkmark in the “yes” box that the injury was caused or aggravated by the employment
activity described.
In letters dated November 21, 2008, the Office informed appellant that the evidence of
record was insufficient to establish his claim. Appellant was advised to submit additional
evidence, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnose condition. The Office also
informed appellant that, because his chiropractor’s report did not diagnosed a spinal subluxation,
he could not be considered a physician under the Federal Employees’ Compensation Act and his
report had no medical value in establishing the traumatic injury claim.
Appellant submitted notes, disability slips and reports from Dr. Koch for the period
November 5 through 26, 2008. Dr. Koch reiterated his diagnoses of cervical, thoracic and
lumbar sprains/strains, and recommended chiropractic manipulation to remove fixations and to
improve neurophysiological function and biomechanics of the spine. He reported that appellant
had moderate spasms in the neck, mid- and lower back, and a “functionally short left leg while in
a prone position.” On November 26, 2008 Dr. Koch provided examination findings, which
reflected decreased range of motion in the thoracic and lumbar spines. None of his reports
documented any x-rays of appellant’s spine.
In a decision dated December 29, 2008, the Office denied appellant’s claim. It accepted
that the November 4, 2008 incident occurred as alleged; however, there was insufficient medical
evidence to relate appellant’s back condition to the motor vehicle accident.
On January 30, 2009 appellant requested reconsideration. In a January 23, 2009 report,
Dr. Richard A. Rydze, a Board-certified internist and an employing establishment medical
director, reviewed a history of the November 4, 2008 incident, appellant’s subsequent treatment
and diagnosis of acute cervical strain. He noted that appellant had an increase in neck pain that
he had not experienced before the incident. Based upon his review of the case record, Dr. Rydze
concurred with the chiropractic treatment given for appellant’s acute neck injury. He stated that
there was no need for an x-ray, as this was a muscular injury.
Appellant submitted a November 5, 2008 report (Form CA-20) from Dr. Koch reiterating
the information contained in his duty status report of the same date. On February 6, 2009
Dr. Koch described the history of appellant’s alleged injury and treatment. He stated that x-rays
were not necessary to diagnose cervical, thoracic and lumbar sprains/strains, and that it would
have been unethical for him to have ordered x-rays for the sole purpose of diagnosing a
subluxation. Appellant also submitted a November 4, 2008 illness and injury report.
By decision dated February 26, 2009, the Office denied modification of its December 29,
2008 decision, finding that Dr. Koch did not qualify as a physician under the Act. It found that
there was no probative medical evidence, which provided the diagnosis of a condition causally
related to the November 4, 2008 incident.

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LEGAL PRECEDENT
The Act provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.1 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and, generally, this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8

1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
3

Robert Broome, 55 ECAB 339 (2004).

4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Id.

8

20 C.F.R. § 10.303(a).

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is evidence that includes a physician’s rationalized opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Office accepted that the November 4, 2008 incident occurred as alleged. The issue,
therefore, is whether appellant has submitted sufficient medical evidence to establish that the
employment incident caused an injury. The medical evidence of record does not contain a
rationalized medical opinion from a qualified physician establishing that the work-related motor
vehicle accident caused or aggravated his claimed cervical condition. Therefore, appellant has
failed to satisfy his burden of proof.
Dr. Koch, a chiropractor, diagnosed cervical, thoracic and lumbar sprains/strains. He
opined that appellant’s injuries were caused by the November 4, 2008 accident. A chiropractor
is a physician as defined under the Act only where he diagnoses a spinal subluxation by x-ray.10
Dr. Koch did not diagnose a spinal subluxation or obtain an x-ray of appellant’s cervical spine.
Therefore, his reports do not constitute probative medical evidence. Acknowledging the absence
of x-rays, Dr. Koch opined that they were not necessary to determine whether appellant had
sustained the diagnosed sprains/strains. The Board notes, however, that the issue of his status as
a “physician” is determined by the terms of the Act. As Dr. Koch did not diagnose a spinal
subluxation as demonstrated by x-ray, as required by section 8101(2) of the Act, he is not a
physician and his reports have no probative value.
Dr. Rydze’s January 23, 2009 report is also insufficient to establish appellant’s claim. He
did not provide any examination findings. There is no evidence that Dr. Rydze examined
appellant at all. His concurrence with the chiropractor’s treatment was based solely upon his
review of the case record. Although Dr. Rydze indicated that appellant had an increase in neck
pain that he had not experienced before the incident, he did not provide any opinion explaining
how the diagnosed conditions were caused or aggravated by the November 4, 2008 incident.11

9

John W. Montoya, 54 ECAB 306 (2003).

10

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law. The term ‘physician’ includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the Secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).
11

John W. Montoya, 54 ECAB 306 (2003). See also A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB
313 (1999) (medical evidence which does not offer an opinion regarding the cause of an employee’s condition is of
limited probative value).

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For all of these reasons, his report is of limited probative value.12 The record does not contain a
rationalized opinion by a qualified physician supporting appellant’s contention that his condition
was causally related to the November 4, 2008 incident.
Appellant expressed his belief that his neck and back conditions resulted from the
accepted employment incident. The Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.13 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.14 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that his condition was caused by the work-related incident
is not determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report, which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how his claimed condition was caused or aggravated
by his employment, he has not met his burden of proof.
On appeal, appellant expressed confusion as to why his supervisor’s claim, filed for
injuries resulting from the accepted November 4, 2008 accident, was accepted by the Office,
when his own claim was rejected. As noted, the medical evidence of record is insufficient to
establish that he sustained an injury causally related to the accepted employment incident.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a traumatic injury on
November 4, 2008, as alleged.

12

For reasons stated above, Dr. Rydze’s opinion that an x-ray was unnecessary does not qualify Dr. Koch as a
physician under the Act.
13

See Joe T. Williams, 44 ECAB 518, 521 (1993).

14

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
TENNESSEE VALLEY AUTHORITY,
BELLEFONTE TRAINING CENTER,
Hollywood, AL, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1180
Issued: December 18, 2017

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 May 8, 2017 appellant, through counsel, filed a timely appeal from a March 15, 2017
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 met his burden of proof to modify a March 13, 2014 loss
of wage-earning capacity (LWEC) determination.
On appeal counsel asserts that, because the March 13, 2014 LWEC was based on a
temporary position created specifically for appellant and, as outlined by the Board in A.J.,3 it was
makeshift and temporary, such that the March 15, 2017 decision must be reversed.
FACTUAL HISTORY
On October 16, 2003 appellant, then a 34-year-old lineman apprentice trainee, injured his
right knee on October 15, 2003 while undergoing lineman training. He did not immediately stop
work. OWCP accepted right cruciate ligament sprain. Additional conditions of tear of right
medial meniscus and right lower leg primary osteoarthritis were also accepted.
On February 5, 2004 Dr. Kirk A. Fee, a Board-certified orthopedic surgeon, performed
right knee arthroscopic surgery.4 On March 11, 2008 he performed additional right knee surgery
due to degenerative arthrosis. Appellant returned to modified duty on April 3, 2008.5 Dr. Fee
performed right knee total arthroplasty on March 31, 2009. On June 1, 2009 appellant filed a
recurrence claim (Form CA-2a) and claims for compensation (Form CA-7) for compensation
beginning that day.6 He received the claimed compensation and was placed on the periodic
compensation rolls effective October 25, 2009.
In February 2010, appellant was referred for vocational rehabilitation services.
In a September 9, 2011 report, Dr. Fee advised that appellant had recovered appropriately
from his right total knee replacement. He provided permanent restrictions of no climbing,
squatting, or kneeling, with a 50-pound weight restriction.
On September 26, 2011 the employing establishment offered appellant a modified
position as a lineman apprentice, stating that it was a position for which it had a need. The offer
provided a list of physical requirements.7 Dr. Fee signed a release on September 28, 2011
indicating that appellant had the physical ability to perform the position. The offer indicated that
appellant would not violate any of his restrictions. It was in the employing establishment’s
Muscle Shoals, Alabama, facility, and his duties would include sorting and inventory of material,
3

Docket No. 10-0619 (issued June 29, 2010).

4

The record contains no claims for compensation at the time of this surgery. Appellant had left knee arthroscopic
surgery, done by Dr. Fee, on June 30, 2006. A notation in the record indicates that he has a compensable left knee
injury. Any claim regarding the left knee is not before the Board on this appeal.
5

Appellant took sick leave from March 10 to April 3, 2008.

6

Appellant did not claim compensation for the period March 31 to May 31, 2009.

7

The physical requirement noted standing for four hours daily, sitting, bending, and twisting for two hours daily,
walking, squatting, and kneeling for one hour, and no climbing, with a 10- to 20-pound lifting restriction.

2

working at a computer, and operating a forklift. The offer noted that appellant’s job as a lineman
apprentice gave him the knowledge needed to identify the types of material needed for
construction jobs. Appellant accepted the offer on September 30, 2011 and returned to work at
the Muscle Shoals facility on October 24, 2011.
In a March 14, 2012 report, Dr. Fee noted appellant’s return to work. He advised that
appellant could do intermittent sitting, walking, lifting, bending, and squatting with a lifting
requirement of 10 to 20 pounds. Dr. Fee added that appellant could not push or pull significant
weight, but could operate foot controls and operate a truck or tractor. He also advised that
appellant had 25 percent permanent impairment of the right leg due to a total knee replacement.8
By decision dated March 13, 2014, OWCP determined that appellant’s earnings in the
position of lineman-apprentice, effective October 25, 2011, fairly and reasonably represented his
wage-earning capacity. It noted that, since his current actual earnings were greater than his pay
rate when disability recurred on March 31, 2009, he had no LWEC.
On April 13, 2015 the employing establishment notified OWCP that appellant had been
terminated effective April 9, 2015. It attached April 9, 2015 correspondence sent to him
indicating that a March 4, 2015 notice of proposed action had been finalized.
On April 17, 2015 appellant filed a recurrence claim. He indicated that the recurrence
occurred on April 9, 2015 when management could no longer accommodate his restrictions.
Appellant noted restrictions of no kneeling, squatting, climbing, or walking on uneven ground,
and no prolonged standing, with a lifting restriction of 25 pounds. He described right and left
knee pain, muscle spasm in the right leg and lower back, and nerve damage. The employing
establishment indicated that on April 24, 2006 appellant also sustained an injury to his left knee,
and that his modified position had restrictions of no bending, squatting, or ladder or pole
climbing. Appellant also submitted claims for compensation beginning April 9, 2015.
By letter dated May 12, 2015, OWCP informed appellant that, as a formal LWEC was in
place, in order to establish his disability claim, he would need to meet one of the criteria for
modifying an LWEC. It described the criteria and advised him of the evidence he needed to
provide.
In a June 1, 2015 report, Dr. Fee noted appellant’s complaint of occasional laxity in his
right knee. Physical examination demonstrated full extension and flexion with no signs or
symptoms of problems or infections, and no gross ligamentous instability. Dr. Fee reviewed
right knee x-rays which showed good position of the total knee components with excellent
overall fixation. He diagnosed status post right total knee replacement and recommended
activity as tolerated. Dr. Fee recommended a functional capacity evaluation (FCE) to determine
appellant’s physical capabilities.
By decision dated June 16, 2015, OWCP found that appellant submitted insufficient
evidence establish a basis for modifying the March 23, 2014 LWEC.
8

Following review by its medical adviser who agreed with Dr. Fee’s impairment evaluation, by decision dated
April 24, 2012 OWCP granted appellant a schedule award for 25 percent permanent impairment of the right leg.

3

Appellant, through counsel, timely requested a hearing before a representative of
OWCP’s Branch of Hearings and Review. In support of the request, counsel forwarded an
October 16, 2014 letter in which the employing establishment notified appellant that there were
no reasonable accommodations available that would allow him to perform the essential functions
of the duties of lineman apprentice. It noted that it had reviewed the position description and
essential functions of the position, as well as appellant’s current condition, the current work
available, and the business needs of the organization.
A July 15, 2015 FCE, signed by Dr. Fee on July 23, 2015, demonstrated that appellant
had difficulty completing or was unable to complete tasks requiring squatting, climbing,
kneeling, and unilateral stance due to decreased strength and stability about the knees and
subjective complaints of bilateral knee pain. He was assessed at a medium job level with a
lifting ability of 50 pounds floor to waist and right and left carrying of 50 pounds.
At the hearing, held on February 16, 2016, appellant testified that his last day at work
was in September 2014 and that he was paid through April 9, 2015. He indicated that, following
the termination, he worked briefly as a forklift operator until the job ended. Counsel, citing the
Board’s decision in A.J.,9 argued that the modified job appellant returned to in 2011 was
erroneous and, therefore, the March 13, 2014 decision should be modified. He maintained that
the job was makeshift and temporary because it was crafted to meet appellant’s specific
restrictions and was available only as long as the employing establishment could accommodate
him.
By decision dated April 27, 2016, an OWCP hearing representative set aside the June 16,
2015 decision. She noted that, although appellant returned to a job in October 2011 which had
an official title and formal position description, he did have strict restrictions. On remand,
OWCP was to obtain additional information from the employing establishment as to whether the
position on which the March 13, 2014 LWEC was based was a classified, permanent position, to
be followed by a de novo decision.
On May 26, 2016 OWCP asked the employing establishment to comment regarding the
2011 job offer, specifically inquiring if the position was based on a classified, permanent, actual
position and, if so, to provide an SF-50 or other documentation to verify this fact.
In a response dated May 31, 2016, the employing establishment replied in the affirmative
that the position offered was permanent and that it was a bona fide position. A copy of the
September 28, 2011 job description with attachments was included.
By decision dated June 13, 2016, OWCP denied modification of the March 13, 2014
LWEC decision. It found that, following review of the additional evidence submitted by the
employing establishment, appellant did not meet any of the criteria for modifying a formal
LWEC.
Appellant, through counsel, timely requested a hearing with OWCP’s Branch of Hearings
and Review. At the hearing, held on February 8, 2017, counsel reiterated that the modified job
9

Supra note 3.

4

appellant returned to in 2011 was erroneous because it was makeshift and, therefore, the
March 13, 2014 decision should be modified. He maintained that the job was makeshift because
it was crafted to meet appellant’s specific restrictions and was available only as long as the
employing establishment could accommodate appellant, again referencing the Board’s decision
A.J.10
On March 13, 2017 OWCP’s hearing representative telephoned the employing
establishment which verified that the position appellant returned to was a permanent, regular
position, noting that the job was still being performed at the employing establishment.
By decision dated March 15, 2017, OWCP’s hearing representative found that appellant
did not meet his burden of proof to modify the March 13, 2014 LWEC determination. He noted
that the evidence of record did not establish that appellant had experienced a material change in
the nature and extent of the employment-related condition or had been retrained or otherwise
vocationally rehabilitated. The hearing representative also found that the evidence of record
failed to support that the March 13, 2014 LWEC was erroneous. He affirmed the June 13, 2016
decision.
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. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.11
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.12 OWCP
procedures at section 2.1501 contain provisions regarding the modification of a formal LWEC.13
The relevant part provides that a formal LWEC will be modified when: (1) the original rating
was in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has
been vocationally rehabilitated.14
As the Board explained in A.J.,15 a position that is considered an odd-lot or makeshift
position designed for a claimant’s particular needs is not appropriate for a wage-earning capacity
determination. In that case, the Board discussed several factors that may support a finding that
an offered position is makeshift in nature. These factors include: (1) the position did not have
10

Id.

11

Katherine T. Kreger, 55 ECAB 633 (2004).

12

Sue A. Sedgwick, 45 ECAB 211 (1993).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
14

Id. at § 2.1501.3(a).

15

Supra note 3.

5

an official title or formal position description; (2) there were strict limitations, such as fivepound lifting and no casing of mail, which indicated the claimant would not be able to secure a
position in the community-at-large with such limited duties; (3) the claimant did not perform any
meaningful tasks in the position; and (4) the job appeared to be temporary in nature.16
The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify the March 13,
2014 LWEC determination. In that decision, OWCP found that his earnings as a linemanapprentice, effective October 25, 2011, fairly and reasonably represented his wage-earning
capacity. It noted that, since his current actual earnings were greater than his pay rate when
disability recurred on March 31, 2009, he had no LWEC.
On April 17, 2015 appellant filed a recurrence claim (Form CA-2a). He indicated that
the recurrence occurred on April 9, 2015 when management could no longer accommodate his
restrictions.
As a formal wage-earning capacity was in effect at the time of the claimed recurrence of
total disability, appellant must show a basis for modification of that decision to be entitled to
wage-loss compensation. He did not allege that the employment-related condition had materially
changed or that he was retrained or otherwise vocationally rehabilitated. Rather, counsel, citing
the Board’s case A.J., asserted that, because the March 13, 2014 LWEC was based on a
temporary position created specifically for appellant, it was a makeshift position and, therefore,
the March 15, 2017 decision was erroneous and must be reversed.
The Board finds no evidence in this case that the modified lineman apprentice position
was makeshift pursuant to the relevant factors outlined in A.J. regarding a makeshift position.
As to the first factor, the job offered appellant had an official title and a detailed job description.
Although the job duties were modified to meet his physical restrictions,18 the job description also
included a list of the duties that he would perform and indicated that the employing
establishment had a need for the position, and his job as a lineman apprentice gave him the
knowledge needed to identify the types of material needed for construction jobs. On May 31,
2016 the employing establishment affirmatively indicated that the position offered was
permanent, and certified that it was a bona fide position.

16

Id.

17

Jennifer Atkerson, 55 ECAB 317 (2004).

18

The job offer indicated that appellant would sort and inventory material, would work at a computer, and would
operate a forklift. Dr. Fee noted on September 28, 2011 that appellant had the physical ability to perform the
position.

6

As to the second A.J. factor, while the position provided restrictions of limited walking,
squatting, and kneeling, and no climbing, with a 10- to 20-pound lifting restriction,19 as noted,20
the duties of the position were those that would be available in a local job market. Moreover, at
the hearing, appellant testified that following his termination he had worked briefly as a forklift
operator and only stopped because that job ended.
There is also no evidence that appellant performed tasks which were not meaningful in
the modified position. On March 13, 2017 the employing establishment verified that the position
he returned to was a permanent, regular position, noting that the job was still being performed at
the employing establishment.
As to counsel’s argument that the job was temporary, appellant performed the position
for three years and the job is still being performed at the employing establishment.
As the record supports that OWCP followed proper procedures, the Board finds that the
March 13, 2014 LWEC was proper.21 There is, therefore, no basis to support that it should be
modified.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly denied modification of appellant’s wage-earning
capacity determination.

19

Supra note 7.

20

Supra note 18.

21

See A.D., Docket No. 14-0253 (issued June 6, 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2017
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Johnston, IA, Employer
__________________________________________

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Appearances:
Benjamin Hayek, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1022
Issued: October 24, 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 April 19, 2018 appellant, through counsel, filed a timely appeal from a January 9, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from the last merit decision, dated May 8, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3 the Board lacks jurisdiction to review the merits of the 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 OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 23, 2017 appellant, then a 55-year-old supervisory information technology
specialist, filed a traumatic injury claim (Form CA-1) alleging that on January 10, 2017 he slipped
on ice and fell down three stairs walking out of the front of his office building.3 He related that at
the time of his fall he was wearing a back brace because he was recovering from two previous
back surgeries. Appellant stopped work on January 11, 2017 and did not return. The employing
establishment did not controvert the claim and completed and signed an authorization for
examination and/or treatment (Form CA-16) on January 18, 2017.
In the attending physician’s portion of the January 18, 2017 authorization for examination
and/or treatment (Form CA-16), Dr. David Hatfield, a Board-certified orthopedic surgeon,
provided a history of appellant falling on ice at work on January 10, 2017. He found muscle
soreness and spasm after the fall and advised that x-rays revealed abnormal findings. Dr. Hatfield
also noted that appellant had undergone back surgery on April 26 and November 22 and 29, 2016.
He checked a box marked “yes” that the condition was caused or aggravated by employment and
found that appellant was totally disabled.
Dr. Hatfield, in a January 18, 2017 report, noted that appellant related that he was doing
well following a November 2016 anterior posterior decompression and fusion at L5-S1 until he
fell down approximately four stairs leaving work on January 10, 2017. He noted that x-rays did
not show loosening or changes in the hardware. Dr. Hatfield opined that appellant might have
“some disruption in healing” and listed work restrictions.
On January 19, 2017 Dr. Hatfield indicated that appellant should work part time for an
additional four weeks due to his January 10, 2017 fall. He submitted form reports on February 14
and 27, 2017 providing work restrictions. In a February 28, 2017 attending physician’s report,
(Form CA-20), Dr. Hatfield diagnosed low back pain after lumbar surgery and checked a box
marked “yes” that the condition was caused or aggravated by the described employment activity
of appellant falling on ice on January 10, 2017. He provided as a rationale that appellant’s back
pain increased instead of improving.4 In a February 28, 2017 chart note, Dr. Hatfield advised that
appellant’s “back certainly got aggravated with this fall at work and we need to continue to allow
time to heal.”5
By decision dated May 8, 2017, OWCP denied appellant’s traumatic injury claim. It found
that he had not submitted medical evidence sufficient to establish that he sustained a diagnosed
3

Appellant submitted a statement from a witness who saw him fall.

4

Dr. Hatfield provided similar findings in an April 5, 2017 CA-20 form.

5
On April 3, 2017 Dr. Hatfield noted that appellant’s condition was improving though he had a “setback with his
fall including the right thigh and groin symptoms.”

2

condition as a result of the accepted work incident. OWCP determined that Dr. Hatfield diagnosed
pain rather than a specific medical condition caused or aggravated by the accepted January 10,
2017 employment incident.
On May 24, 2017 Dr. Hatfield advised that appellant underwent an anterior and posterior
decompression and fusion at L5-S1 in November 2016. He noted that the circumstances of the
January 10, 2017 fall were not in doubt and related, “As [appellant] was progressing well until the
fall as described, would have not yet had a solid fusion, and had a distinct setback following the
fall, I would relate his delay in healing and slowed progress to the fall as described.”
In a July 19, 2017 report, Dr. Hatfield related that appellant had a previous back surgery in
November 2016 and fell on ice on January 10, 2017. He ordered a bone growth stimulator after
the fall due to the “potential disruption in fusion mass.” Dr. Hatfield related, “Given [appellant’s]
fall and potential delay in healing as above return to work was delayed in order to maximize
healing.”
Dr. Hatfield, on September 6, 2017, again discussed appellant’s history of back surgery
and his January 10, 2017 fall on ice leaving work, noting that he spoke with him on the telephone
the day of his injury. He evaluated appellant on January 18, 2017 for possible disruption of the
hardware and fusion due to the fall. Dr. Hatfield advised:
“No gross radiographic changes were appreciated on imaging at that time.
However, [appellant’s] instrumented lumbar fusion was distinctly aggravated….
Note original diagnosis of lumbar fusion was not altered by the fall. However, the
fall did directly result in a marked setback and aggravation in his findings and
progress. Thus, in an attempt to lessen the impact of such fall, a bone growth
stimulator was ordered. Further, recovery period was extended with [a] lengthened
time from of bracing and delayed return to work activities.”
Dr. Hatfield questioned the denial of appellant’s claim given the “magnitude of his surgery
and the magnitude of his fall….”
Appellant, on October 24, 2017, requested reconsideration. He related that he had worked
with his supervisor and his physician to have his claim approved.
By decision dated January 9, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to section 8128(a). It found that he had not raised a relevant
legal argument nor showed that OWCP erroneously applied or interpreted a specific point of law.
Further, OWCP found that the evidence submitted “is cumulative and substantially similar to
evidence already contained in the case record.” It explained that Dr. Hatfield’s reports did not
contain a diagnosis of a medical condition causally related to the employment incident.
On appeal, appellant contends that it is undisputed that he had spinal surgeries on
November 22 and 29, 2016 and that his recovery from the surgery was aggravated by his
January 10, 2017 fall. He questions why OWCP has not accepted the medical evidence from
Dr. Hatfield, noting that OWCP appears to require a claimant to have a new diagnosis rather than
showing an exacerbation of a preexisting condition.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.7
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.8 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.9 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that appellant has not established that OWCP erroneously applied or
interpreted a specific point of law or raised a relevant legal argument not previously considered.
Appellant did, however, submit pertinent new and relevant evidence not previously considered.
The Board thus finds that OWCP improperly denied his request for reconsideration of the merits
of his claim.
In support of his request for reconsideration, appellant submitted new medical reports from
Dr. Hatfield. On May 24, 2017 Dr. Hatfield advised that appellant had a delay in healing due to
his January 10, 2017 fall, noting that he had undergone a lumbar fusion in November 2016. In a
report dated July 19, 2017, he again noted that the fall had potentially delayed appellant’s healing
and advised that he ordered a bone growth stimulator to avoid a possible fusion mass disruption.
On September 6, 2017 Dr. Hatfield related that appellant had sustained an aggravation of his
lumbar fusion due to his fall which delayed his recovery and resumption of employment. He
provided a diagnosis of an aggravation of a healing lumbar fusion causally related to the accepted

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

4

January 10, 2017 employment incident.11 Prior to the submission of the September 6, 2017 report,
appellant had not submitted medical evidence providing a definite diagnosis. Dr. Hatfield’s report
directly addressed the basis upon which OWCP denied appellant’s claim as it provided a diagnosed
condition and discussed its relationship to the employment injury.12
The Board thus finds that OWCP improperly refused to reopen appellant’s case for further
review of the merits, as the evidence he submitted in support of his reconsideration request is
relevant and pertinent new evidence not previously considered.13 Reopening a claim for merit
review does not require a claimant to submit all evidence that may be necessary to discharge his
burden of proof.14 If OWCP should determine that the new evidence submitted lacks probative
value, it may deny modification of the prior decision, but only after the case has been reviewed on
the merits.15
As appellant has submitted pertinent new and relevant evidence not previously considered
by OWCP, he is entitled to a review of the merits of his claim under section 10.606(b)(3) of
OWCP’s regulations.16 The case will be remanded to OWCP to conduct an appropriate merit
review of the claim. Following this and such other development as deemed necessary, it shall
issue an appropriate merit decision on the claim.17
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

The July 19 and September 6, 2017 reports from Dr. Hatfield indicated that they were “[c]omposed by the
[physician], signed by his secretary to expedite mailing.” The reports are not signed. See Y.S., Docket No. 16-0882
(issued August 19, 2016) in which the Board found that reports printed on a physician’s letterhead and which contained
a signature line with his printed name were sufficient to constitute competent medical evidence.
11

12

See M.C., Docket No. 17-1983 (issued August 17, 2018).

13

Id. at § 10.606(b)(3); see also G.G., Docket No. 17-1666 (issued August 21, 2018).

14

See S.H., Docket No. 17-1101 (issued August 3, 2017); Helen E. Tschantz, 39 ECAB 1382 (1988).

15

See Dennis J. Lasanen, 41 ECAB 933 (1990).

16

See L.K., Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued July 6, 2016).

17

Although the Board does not have jurisdiction over the merits of appellant’s claim, it should be noted that
appellant submitted a Form CA-16 executed by the employing establishment on January 18, 2017. Where an
employing establishment properly executes a Form CA-16 authorizing medical treatment related to a claim for a work
injury, the form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of
the examination/treatment regardless of the action taken on the claim. See N.B., Docket No. 17-0927 (issued April 18,
2018); Tracy P.Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is
limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

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ORDER
IT IS HEREBY ORDERED THAT the January 9, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 24, 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

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

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Appearances:
Coby Jones, for the appellant
Office of Solicitor, for the Director

Docket No. 12-89
Issued: August 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 24, 2011 appellant filed a timely appeal from an August 26, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) affirming the termination of her
compensation and medical benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.2

1
2

5 U.S.C. § 8101 et seq.

By letter dated March 2, 2012, appellant, through her representative, requested an oral argument before the
Board. Pursuant to the Board’s regulations, a request for oral argument must be made no later than 60 days after the
filing of the appeal. 20 C.F.R. § 501.5(b). As appellant filed her request for an oral argument on March 2, 2012, it
is denied as untimely as the request was made more than 60 days after October 24, 2011, the date she filed her
appeal. The case will proceed as submitted on the record.

ISSUE
The issue is whether OWCP properly terminated appellant’s compensation and medical
benefits effective January 25, 2011 on the grounds that her work-related injury ceased without
residuals.
On appeal, appellant contends that the impartial medical examiners were not given an
accurate statement of the accepted facts or all appropriate medical test results and that she was
not provided vocational rehabilitation.
FACTUAL HISTORY
This case has previously been before the Board. The facts as set forth in the Board’s
prior decisions are hereby incorporated by reference.3
Appellant received treatment from Dr. Samuel J. Chmell, a Board-certified orthopedic
surgeon. In a July 29, 2010 report, Dr. Chmell listed his diagnosis as lumbar disc herniation. He
placed restrictions on appellant, but stated that she could return to work within these restrictions
but needed to remain cautious.
On July 22, 2010 OWCP referred appellant to Dr. James P. Elmes, a Board-certified
orthopedic surgeon, for a second opinion examination. In an August 27, 2010 report, Dr. Elmes
reviewed appellant’s medical records and the results of his examination. He diagnosed:
(1) nonspecific low back pain; (2) right lumbar radiculopathy by electromyogram (EMG) study
of March 21, 2007; (3) small central herniated lumbar disc at L5 by computerized tomography
(CT) myelogram on January 29, 2002; (4) mild L5-S1 facet arthropathy; (5) nonspecific right
knee pain; (6) nonspecific pain cleft left foot; (7) bilateral mild hallux valgus with bunions.
Dr. Elmes concluded that appellant was unable to perform her preinjury work. He did not find a
causal relationship between appellant’s employment-related injury and her current diagnoses.
Dr. Elmes noted that appellant’s main current complaint was low back pain radiating to the right
leg, and there were no positive physical examination findings of tendinitis or strains of either
foot or ankle, no right-sided tarsal tunnel syndrome, or any Morton’s neuroma of the right foot.
He noted that the EMG on December 17, 1999 showed radiculopathy of three nerve roots (right
L3, L4 and L5). Dr. Elmes noted that the EMG of March 21, 2007 showed only right L5
radiculopathy. He concluded that the radiculopathy was improving, since only one nerve root
was involved compared to three nerve roots in December 1999. Dr. Elmes concluded that since
the radiculopathy was improving and she stopped working in 2001, appellant’s work caused a
temporary aggravation which ceased to be an aggravating factor when she stopped work in 2001.
He also noted that appellant had no objective physical findings of spasm, atrophy or neurological
3

Docket No. 09-1835 (issued June 21, 2010) (the Board found that OWCP improperly suspended appellant’s
compensation benefits as it failed to give her proper notice); Docket No. 09-278 (issued September 22, 2009) (the
Board founds that OWCP properly denied appellant’s request for reconsideration and also properly denied
appellant’s request for review of the written record as she had previously requested reconsideration). On April 5,
2000 appellant filed an occupational disease claim alleging that as a result of her federal duties as a letter carrier, she
sustained, from lumbar radiculopathy, pain in her right leg and right foot and arthropathy on the right side at L4
and L5. Appellant stopped work on January 22, 2001. OWCP accepted her claim for lumbar radiculopathy
radiating to the right leg.

2

change on prior evaluations or on his evaluation. Dr. Elmes noted that appellant took no current
pain medication and that neither the CT myelogram or lumbar magnetic resonance imaging
(MRI) scan studies established any right L5 nerve impingement. He found that appellant could
return to work at light duty.
On September 27, 2010 OWCP referred appellant to Dr. G. Klaud Miller, a Boardcertified orthopedic surgeon, to resolve a conflict in medical opinion between Dr. Chmell and
Dr. Elmes with regard to whether appellant had disabling residuals of her accepted lumbar
radiculopathy and the extent of any work restrictions related thereto. The statement of accepted
facts accompanying the referral discussed the history of appellant’s injury. It contained a
discussion of appellant’s medical history, both work related and other. The statement noted that
appellant stopped work at the employing establishment on January 22, 2001 and returned to
work in the private sector as a part-time substitute teacher beginning December 2007. It noted
that the claim had been accepted for lumbar radiculopathy radiating in her right leg and
discussed the duties of her employment as a letter carrier.
In an August 2, 2010 electrodiagnosis report received by OWCP on October 6, 2010,
Dr. Jose L. Medina, a Board-certified neurologist, noted intermittent spontaneous potentials and
excessive long duration polyphasic potentials in the radicular distribution of the right lumbar five
root. He stated that these findings were consistent with moderate, active, ongoing right L5
radiculopathy. Dr. Medina noted, “This study shows no worsening.”
In a November 4, 2010 report, Dr. Chmell opined that appellant continued to suffer from
the effects of her March 1, 1998 work injury to her low back. He noted that he recently
reevaluated her on November 4, 2010 and that she continued to experience low back pain which
radiates down her leg. Dr. Chmell noted that appellant has had these complaints since her
March 1, 1999 work injury. He stated that appellant’s physical examination demonstrated
muscle spasm and tenderness in the low back area, right side greater than left, with positive
straight leg raising of the right leg, which has been a continued finding since her work injury.
Dr. Chmell opined that this was entirely consistent with her accepted work-related diagnosis of
lumbosacal neuritis. He stated that in essence appellant has an L4-5 disc herniation compressing
the right L5 nerve root from her work injury and this continues to afford her problems that are
confirmed by her objective findings on examination and especially by the EMG/NCV study.
Dr. Chmell stated that these problem/conditions/symptoms are not related causally to anything
other than her work activities.
In a November 22, 2010 report, Dr. Miller discussed appellant’s medical history and
conducted an examination. He stated that any connection between appellant’s current condition
and the accident in question assumed that there was an initial connection to the accident in
question. Dr. Miller stated that appellant’s entire medical course has been essentially laughable,
as it was a classic case of one physician who was completely and unequivocally inconsistent
with every other physician. He stated that Dr. Chmell took appellant’s complaints and assumed
a causal connection, exaggerated and inflated the physical findings and did not note any of the
inconsistencies. Dr. Miller noted that the prior impartial medical examiners noted few
abnormalities and consistently refuted Dr. Chmell’s findings of atrophy, reflex changes and
sensory losses. He stated that the EMGs which Dr. Chmell found as being abnormal were in fact
nerve conduction velocities and essentially proved that there were no radicular problems.

3

Dr. Miller noted that appellant’s examination was essentially normal, with no objective evidence
to support her complaints. He opined that there was no impairment related to her alleged work
injuries and found that appellant was capable of returning to full duty without any physical
limitations. Dr. Miller stated that any impairment appellant had was due to her age-related
degenerative changes.
On November 23, 2010 OWCP issued a notice of proposed termination of compensation
and medical treatment.
In a December 22, 2010 report, Dr. Chmell stated that Dr. Miller misconstrued his
medical reports. He contended that Dr. Miller ridiculed his findings based upon his claim that all
of the other physicians did not support anything wrong and concluded that she did not have a
back injury. Dr. Chmell noted that Dr. Miller ignored the second opinion physician Dr. Elmes
who stated that appellant could have sustained an aggravation of an underlying condition of
degenerative disc disease. He noted that appellant was not asymptomatic and that he never
stated that she was totally disabled as Dr. Miller claimed.
OWCP asked Dr. Miller to respond to Dr. Chmell’s concerns and to review additional
evidence. In a response dated January 24, 2011, Dr. Miller reviewed the additional evidence and
concluded that the completely contradicted Dr. Chmell’s assertions. He noted that the most
recent MRI scan completely repudiates Dr. Chmells’ statement regarding the severity of
appellant’s current impairment. Dr. Miller noted that appellant was resistant to completing
various necessary forms regarding her case.
On January 25, 2011 OWCP terminated appellant’s medical and wage-loss benefits
effective that date.
On January 31, 2011 appellant requested a telephonic hearing before an OWCP hearing
representative. At the hearing held on June 7, 2011 she discussed her work limitations, the lack
of vocational rehabilitation and her work history.
By decision dated August 26, 2011, the hearing representative affirmed the January 25,
2011 decision terminating appellant’s compensation and medical benefits.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5

4

C.R., Docket No. 11-1445 (issued January 26, 2012); Bernadine P. Taylor, 54 ECAB 342 (2003).

5

Id.

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The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.7
Section 8123(a) of FECA provides in pertinent part: If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.8 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.9
ANALYSIS
OWCP accepted appellant’s claim for lumbar radiculopathy. However, it terminated her
medical and compensation benefits effective January 25, 2011 as it found that her accepted
employment-related condition had resolved. The Board finds that OWCP properly terminated
appellant’s compensation and medical benefits.
Dr. Chmell, appellant’s treating orthopedic surgeon, opined that appellant continued to
suffer residuals from her accepted employment injury. Dr. Elmes, the second opinion physician,
disagreed and concluded that appellant sustained a work-related aggravation of her
radiculopathy, which ceased to be an aggravating factor when she stopped work at the employing
establishment in 2001. In order to resolve this conflict, appellant was referred to Dr. Miller for
an impartial medical examination. The Board finds that the special weight of the medical
evidence is represented by the thorough, well-rationalized opinion of Dr. Miller, the impartial
medical specialist selected to resolve the conflict in the medical opinion.10 Dr. Miller opined that
any impairment appellant had at this time was solely due to her age-related degenerative
changes. The Board has carefully reviewed the opinion of Dr. Miller and finds that it has
reliability, probative value and convincing quality with respect to whether appellant continues to
suffer residuals from her accepted condition. Dr. Miller based his opinion on a thorough review
of appellant’s medical and employment history and his physical examination. He noted that
appellant’s examination was essentially normal, there were no objective findings to support
appellant’s statements and that her neurological examination was completely negative.
Dr. Miller concluded that there is absolutely no medical connection between her initially
accepted medical conditions and her current status.
6

Roger P. Payne, 55 ECAB 535 (2004).

7

Pamela K. Guesford, 53 ECAB 726 (2002).

8

5 U.S.C. § 8123(a).

9

L.S., Docket No. 12-139 (issued June 6, 2012); see also Jack R. Smith, 41 ECAB 691, 701 (1990); James P.
Roberts, 31 ECAB 1010, 1021 (1980).
10

Id.

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With regard to appellant’s contentions on appeal, appellant correctly noted that Dr. Miller
did not consider the August 2, 2010 electrodiagnosis report. In the report, however, Dr. Medina
noted that the study showed no worsening. Accordingly, any failure to consider this report is
harmless. The Board finds that the statement of accepted facts adequately discussed appellant’s
medical and employment history and properly presented the case for the impartial medical
examiner. As the issue before the Board is whether OWCP properly terminated benefits, the
issue of vocational rehabilitation is not on appeal in this decision. Accordingly, OWCP properly
terminated appellant’s medical and compensation benefits.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and medical
benefits effective January 25, 2011 on the grounds that her work-related injury ceased without
residuals.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 26, 2011 is affirmed.
Issued: August 10, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1090
Issued: March 21, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 12, 2021 appellant through counsel, filed a timely appeal from a July 1, 2021,
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1090.
In a letter dated March 8, 2022, appellant, through counsel requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal
is granted. The appeal docketed as No. 21-1090 is dismissed.
Issued: March 21, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2