United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 14-1141
Issued: February 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 11, 2014 appellant, through counsel, filed a timely appeal from an October 28,
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.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal, appellant contended that the employing establishment violated her privacy
and Health Insurance Portability and Accountability Act (HIPAA) rights, engaged in negative
treatment toward her, and approached her with angry and intimidating remarks when no
witnesses were present.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 22, 2011 appellant, then a 49-year-old human resources specialist, filed a
traumatic injury claim alleging that on June 22, 2011 the human resources (HR) chief went to
appellant’s office and, in an intimidating manner, stood over her and advised that there were two
more openings for the HR conference but that she was sending the HR assistant, not appellant.
She also alleged that the HR chief personally invited coworkers to a staff meeting but ignored
her. Appellant stated that, on that date, she had feelings of frustration, severe anxiety,
embarrassment with distress, a racing heartbeat, and a feeling of fear. She also noted feelings of
nausea and vomiting, muscle tension, anxiety, and uncontrollable nervousness. The employing
establishment controverted the claim.
In multiple statements and documents, appellant listed factors that she alleged caused her
emotional condition. She alleged that the HR chief engaged in disparate treatment of her and
created a hostile work environment. Appellant contended that the HR chief approved an
extended lunch for other women in the office to attend a farewell luncheon for an HR assistant,
but appellant was not invited and the HR chief approved of this behavior. She alleged that she
was not allowed to attend a training conference that was important to the conduct of her job.
Appellant stated that when the HR chief informed her that she was not going to the conference,
she stood over her in an intimidating manner. She alleged that she was excluded from a staff
meeting until a coworker asked about why she was excluded. Appellant also noted that her name
was omitted on a routing slip that was sent to all other HR specialists and assistants. She alleged
that she had to endure bullying and harassment, such as comments as, “Who’s turn is it to watch
[appellant]?” Appellant contended that others with less seniority were assigned a private office
before her, which made it difficult for her to conduct confidential interviews. She alleged that on
one date she was called into the HR chief’s office three times in 30 minutes to discuss a leave
request. Appellant further alleged that the employing establishment violated her privacy and
HIPAA rights. She alleged that the HR chief recalled her disability retirement application after
her immediate supervisor approved and signed it, thereby maliciously and purposely delaying the
process. Appellant also alleged that the HR chief found her documentation insufficient to
provide support for her May 16, 2011 absence and request for continuation of pay. She noted a
severe lack of communication between the HR chief and herself. Appellant contended that, on
that date, she suffered a severe anxiety attack. She had uncontrollable crying spells, problems
breathing, was extremely nervous, and was shaking. Appellant also felt dizzy and faint. She
noted that she was afraid to go back to work and could not deal with the harassing, disparate, and
intimidating treatment from the HR chief.
In a March 25, 2011 statement, Alicia Williams, chief HR officer, stated that, while
copying appellant’s application package for disability retirement, her desk copier was out of ink,
so she printed the completed form on the main copy machine. When she went to the copier to
retrieve the documents, the form was not there. Ms. Williams discovered that another employee
had retrieved them and given them to appellant. She denied that she was looking to review
appellant’s medical documents, but stated that she was only trying to ensure that the forms were
completed correctly and appropriate attachments submitted. Ms. Williams also noted that she
had counseled appellant to not scan her medical documents in e-mails or have them sent by
facsimile (fax), but that on February 23, 2011, she picked up medical documentation off the floor
near the fax machine with regard to appellant.
2

In an August 8, 2011 letter, Sam Robertson, assistant HR officer for the employing
establishment, controverted the claim. He alleged that he was present at the June 13, 2011
meeting between appellant and Ms. Williams, and at no time did Ms. Williams stand over
appellant in an intimidating manner. Mr. Robertson did note that Ms. Williams informed
appellant about who was authorized to attend the HR conference in Orlando, and explained that
she authorized appellant to attend the Dallas conference in July 2011. He also attached a
summary of complaints made by appellant from July 2009 to June 2011 regarding administrative
matters. Mr. Robertson noted that with regard to the farewell luncheon, although Ms. Williams
did approve a request for certain employees to take an extended lunch, Ms. Williams did not
know who was invited, or not invited, to the luncheon, and the employees attending the luncheon
invited each other without input from her.
Appellant also submitted medical reports by Dr. Raul Jimenez, a Board-certified
psychiatrist, dated from June 6 to 24, 2011. After noting her prior treatment and problems with
her supervisor, Dr. Jimenez diagnosed severe major depressive disorder recurrent type and
generalized anxiety disorder.
By decision dated February 1, 2012, OWCP denied appellant’s claim as it found that she
had not established a compensable factor of employment.
On February 17, 2012 appellant requested an oral hearing before an OWCP hearing
representative. At the hearing held on June 5, 2012, she testified that she was intimidated by the
HR chief, Ms. Williams; that Ms. Williams violated HIPAA and her privacy; that Ms. Williams
did not put her on a routing slip, denied her training, delayed her return to work and would not
grant her request for a reasonable accommodation.
In support of her allegation that her medical records were accessed without her
authorization, appellant submitted a March 31, 2011 letter to her from Joan M. Ricard, a director
at the employing establishment, wherein she indicated that, after conducting a fact-finding
investigation, it was determined that appellant’s occupational health record was accessed without
her authorization on February 22 and 25, 2011, that the employing establishment implemented
appropriate measures to prevent this from happening again, and that it made apologies for any
inconvenience concerning this situation.
Following the hearing, the employing establishment responded to the hearing transcript
with comments. Mr. Robertson stated that appellant’s supervisor, Ms. Williams, had not
accessed appellant’s medical records, but had merely requested the dates of appellant medical
appointments to verify times when appellant was off work.
By decision dated August 23, 2012, an OWCP hearing representative noted that
appellant’s statements submitted prior to the hearing and her testimony during the hearing
demonstrated that her claim was for an occupational disease as the events occurred over more
than one day or work shift. The hearing representative found that appellant had established two
compensable factors of employment: (1) her medical records were reviewed without her
permission; and (2) the HR chief left appellant’s retirement papers exposed when they were sent
to the copy machine. However, she also found that appellant’s claim remained denied as the

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medical evidence did not connect appellant’s emotional condition to the established compensable
factors of employment.
By letter dated July 17, 2013, appellant requested reconsideration. She alleged that she
never received the denial notice from OWCP or the written record. Appellant reiterated her prior
arguments about factors that led to her emotional condition. She alleged that she was in constant
fear of losing her job. Appellant also noted that on July 17, 2012 she was escorted out of the
office despite having invoked Family and Medical Leave Act rights to care for her elderly
mother who had passed on July 1, 2012. She alleged that, upon returning to work, she had to
meet with the harassing official on July 17, 2012 and was handed termination papers. Appellant
also noted that she had a prior stress claim for a prior employer, and that her supervisor made
numerous comments about her prior claim.
Mr. Robertson responded for the employing establishment in a September 10, 2013 letter,
noting that appellant must have received the denial notice because she filed a request for an oral
hearing. He also alleged that no one at the employing establishment knew about appellant’s
prior claim for an emotional condition. The employing establishment noted that appellant
attended training in May 2011, and was approved for training in July 2011 but did not attend
because she was not at work from June 14, 2011 to February 2012. It contended that the
comment “it’s not my day to watch him/her” was made by one person to and about all staff in the
office, and not just appellant. Mr. Robertson noted that once appellant objected, these remarks
ceased. A fact-finding investigation found that the HR chief had nothing to do with these
remarks and that it was not a hostile work environment. The employing establishment noted that
appellant was not released to return to work from June 13, 2011 (the date of her alleged injury)
until February 2012. On January 25, 2012 the employing establishment received a fax from
Dr. Jimenez advising that appellant could return to work, and appellant returned to work on
February 27, 2012. On June 11, 2012 appellant was given a notice of proposed removal for
excessive absences, and was given until July 27, 2012 to submit a response. Dr. Jimenez noted
that appellant was separated from employment for the reason of disability retirement effective
August 10, 2012.
By decision dated October 28, 2013, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
an employee must submit the following: (1) medical evidence establishing that he or she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his or her condition; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to his or her emotional condition.
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 Workers’ compensation law does not apply
2

20 C.F.R. § 10.5(q).

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to each and every injury or illness that is somehow related to an employee’s employment.3
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage of workers’ compensation.4 Where
the disability results from an employee’s emotional reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the facts alleged or implicated by the employee did, in fact,
occur.9 Mere perceptions of harassment or discrimination are not compensable under FECA.10
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.11 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.12 Perceptions and feelings
alone are not compensable. To establish entitlement for benefits, a claimant must establish a
basis in fact for the claim by supporting his or her allegations with probative and reliable
evidence.13

3

L.D., 58 ECAB 344 (2007).

4

A.K., 58 ECAB 119 (2006).

5

5 U.S.C. §§ 8101-8193. Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
7

See William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

K.W., 59 ECAB 271 (2007).

10

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

11

J.F., 59 ECAB 331 (2008).

12

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005).

13

L.M., Docket No. 13-267 (issued November 15, 2013).

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In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.14 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.15 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, it must base its decision on an analysis of the
medical evidence.16
ANALYSIS
In the present case, appellant filed a claim for an emotional condition related to her
federal employment. She provided allegations of harassment, a hostile work environment,
improper actions by her supervisor, and improper exposure of personal documents. The initial
question presented is whether there are compensable work factors established by the evidence.
Appellant made allegations with regard to harassment and hostile work environment.
Mere perceptions of harassment, however, are not compensable under FECA.17 The Board finds
that appellant’s allegations of harassment are not supported by the record. There is no evidence
that appellant was discriminated against in being intentionally excluded from meetings or routing
slips or that the HR chief stood over her in an intimidating manner. Appellant alleged that the
HR chief allowed her colleagues to not invite her to a luncheon, but this was totally outside of
the HR’s chief’s knowledge, or for that matter, responsibilities. The fact that appellant may have
felt excluded from a farewell luncheon was not relevant to appellant’s employment. Although
there may have been a comment made with regard to “Whose turn is it to watch [appellant],” the
evidence indicates that the comment was made about many others and was not repeated after
appellant complained. There is no evidence that anyone at the employing establishment knew
about appellant’s prior claim for an emotional condition filed with regard to a prior employer.
Accordingly, appellant has not shown a compensable factor of employment with regard to
harassment or hostile work environment.
Appellant also contends that she suffered a compensable factor of employment with
regard to her supervisor’s actions and other administrative matters. The Board notes that a
supervisor must be allowed to perform their duties and at times employees will disagree with
their supervisor’s actions.18 The manner in which a supervisor exercises his or her discretion

14

D.L. 58 ECAB 217 (2006).

15

Supra note 9; David C. Lindsey, Jr., 56 ECAB 263 (2005).

16

Robert Breeden, 57 ECAB 622 (2006).

17

Supra note 9.

18

Supra note 13.

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falls outside of FECA’s coverage.19 Appellant contends that the administrative decisions as to
who should be authorized to attend a training conference, handling of leave requests, assignment
of office space, discussion with regard to appellant’s absences from work, or appellant’s
termination constitute compensable factors of employment. However, appellant has not shown
any error or abuse on the part of the employing establishment with regard to these administrative
matters.20 Mere disagreement or dislike of a supervisory or managerial action will not be
compensable absent evidence of error or abuse.21 Accordingly, appellant has not shown a
compensable factor with regard to these administrative matters.
OWCP found that appellant had established error or abuse by the employing
establishment with regard to two matters, i.e., that appellant’s medical records were reviewed
without her permission and that her retirement papers were exposed when they were sent to the
copy machine, retrieved by a coworker, and returned to her. Such administrative or personnel
matters, although generally related to the employee’s employment, are administrative functions
of the employer, not regular or specially assigned work duties of the employee, and are not
covered under FECA. However, the Board has held that, where the evidence establishes error or
abuse on the part of the employing establishment in what would otherwise be an administrative
matter, coverage will be afforded.22 In determining whether the employing establishment erred
or acted abusively, the Board has examined whether the employing establishment acted
reasonably.23 The Board finds that, although appellant did establish that these events occurred as
alleged, the employing establishment was not acting unreasonably when it reviewed appellant’s
medical records without her permission and when a coworker retrieved appellant’s retirement
papers from the copy machine and returned them to her. With regard to appellant’s allegation
that her medical records were accessed without her permission, there is no evidence that
appellant’s personal information was misused or stolen. The employee’s supervisor had a workrelated purpose for requesting the information because of a need to check the dates of appellant’s
medical appointments. There is no decision by any administrative body establishing a Privacy
Act violation. Finally, it was reasonable for the employing establishment to send the March 31,
2011 letter notifying appellant that her occupational health record had been accessed without her
authorization and that appropriate measures had been taken to prevent it from happening again.
With regard to appellant’s claim that her retirement papers were exposed at the copy
machine, the Board notes that appellant, a HR specialist who was responsible for handling
retirements, also printed her personal retirement papers on a shared printer where it was
reasonable for a coworker to pick them up and return them to appellant. Similar situations are
common and, without evidence of malice or misuse of appellant’s personal information, this
incident does not constitute error or abuse.

19

C.O., Docket No. 14-516 (issued June 5, 2014).

20

See R.C., Docket No. 13-1636 (issued June 16, 2014).

21

A.K., Docket No. 14-437 (issued June 9, 2014).

22

L.B., Docket No. 13-1582 (issued September 25, 2014).

23

L.Y., Docket No. 13-242 (issued August 20, 2013).

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Accordingly, the Board finds that appellant has not established a compensable factor of
employment. Since appellant has not established a compensable work factor, the Board need not
address the medical evidence.24
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 to 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 28, 2013 is affirmed, as modified.
Issued: February 27, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

24

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
TENNESSEE VALLEY AUTHORITY,
RACCOON MOUNTAIN PUMP STORAGE,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 07-783
Issued: August 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 29, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated September 15 and November 14, 2006 and a
nonmerit decision dated January 9, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied modification of appellant’s
May 15, 1979 wage-earning capacity determination; (2) whether the Office properly calculated
the amount of the overpayment due to forfeiture to be $51,828.22; (3) whether the Office
properly determined to recover the overpayment from appellant’s continuing compensation in
the amount of $200.00 every 28 days; and (4) whether the Branch of Hearings and Review
properly denied appellant’s request for an oral hearing.

FACTUAL HISTORY
This is the sixth appeal in this case.1 On August 12, 1974 appellant, then an electrician,
sustained back and neck strains as well as aggravation of degenerative disc disease after the truck
he was riding in hit a pothole and he was thrown against the truck bed. The Office entered
appellant on the periodic rolls on January 26, 1976. By decision dated May 15, 1979, it reduced
his compensation benefits based on a finding that he could work as a television service and
repairman. Appellant completed CA-1032 forms reporting his earnings for the previous
15 months to the Office on December 12, 1986, February 5, 1987 and September 24, 1988
indicating that he was neither employed nor self-employed during these periods.
By decision dated May 27, 1994, the Office found an overpayment of compensation in
the amount of $131,710.51 occurred because appellant failed to report or underreported his
earnings on CA-1032 forms for the periods May 8, 1978 to November 5, 1984 and from July 5,
1986 through September 24, 1988. It stated that appellant was at fault in the creation of the
overpayment because he failed to report or knowingly underreported his earnings from his
employment. Further, the Office stated that the sum of $1,000.00 would be withheld from
appellant’s continuing compensation effective May 29, 1994. By order remanding case dated
October 23, 1996, the Board set aside the Office’s February 18, 1994 decision and remanded the
case for further action because the record was incomplete.2 The Board remanded the case to the
Office for reconstruction and proper assemblage of the record, to be followed by an appropriate
decision.
By decision dated July 29, 1997, the Branch of Hearings and Review finalized a
preliminary determination of an overpayment in the amount of $152,887.41. The Office stated
that, due to the new finding of overpayment, the continuing offset to appellant’s regular
compensation would be stopped. Further, it considered appellant’s request that he should be
repaid the money already withheld but stated that, in view of the Office issuing a preliminary
determination of an even larger debt than had initially been determined, it would be
inappropriate to repay funds to him which had already been withheld. The Office stated,
“Should our findings that you forfeited your right to compensation and therefore received an
overpayment be reversed on appeal, the Office will repay the funds already withheld.”
Appellant appealed the July 29, 1997 decision of the Branch of Hearings and Review,
which made findings regarding forfeiture, overpayment and recovery. The Board reviewed this
decision in its November 29, 1999 decision3 and affirmed the finding that appellant had forfeited
his compensation during 1986 and 1987 based on his testimony at his September 24, 1991 oral
hearing. Appellant had testified that he had earnings totaling $17,000.00 during the years 1986
1

The Board set forth the entire extensive procedural history of this case in the most recent merit decision dated
November 29, 1999. Docket No. 97-2760 (issued November 29, 1999). The prior Board decisions include: Docket
No. 92-1298 (issued August 24, 1992); Docket No. 93-1551 (issued August 30, 1993); Docket No. 94-1787 (issued
October 23, 1986); Docket No. 97-2369 (issued June 23, 1999); and Docket No. 97-2760 (issued
November 29, 1999).
2

Docket No. 94-1787 see supra note 1.

3

Docket No. 97-2760 see supra note 1.

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and 1987 which he failed to report. The Board found that appellant had received an
overpayment during the years 1986 and 1987 due to forfeiture, that he was at fault in the creation
of this overpayment and that this overpayment was not subject to waiver. The Board remanded
the case for the Office to determine the amount of the overpayment for 1986 and 1987. The facts
and the circumstances of the case as set out in the Board’s prior decisions are adopted herein by
reference.
In a letter dated March 18, 1999, appellant requested full disability compensation noting
that his attending physician found that he was totally disabled. His attending physician,
Dr. Grafton H. Thurman, a Board-certified internist, opined beginning in 1993 that appellant was
totally disabled due to degenerative disc disease and severe rheumatoid arthritis due to his
accepted employment injuries. The Office informed appellant of the requirements for modifying
an existing wage-earning capacity determination on April 2, 1999. In a April 12, 1999 note,
Dr. Thurman stated that appellant’s condition had not changed since 1999. He reported on
April 27, 1999 that, due to active inflammatory rheumatoid arthritis in the knees and low back
degenerative disc disease, appellant was totally disabled as an electrician and television service
and repairman. Dr. Thurman noted that appellant sustained a severe injury to his left knee on
October 30, 1998. He completed a report on June 23, 1999 and stated that appellant’s
rheumatoid arthritis had severely aggravated his cervical spine degenerative arthritis and his
lumbar disc disease. Dr. Thurman opined that appellant’s conditions prohibited him from
performing the lifting and walking required from a television repairman or electrician technician.
By decision dated August 6, 1999, the Office denied modification of appellant’s wage-earning
capacity decision.
Appellant requested an oral hearing addressing this issue on
September 7, 1999. He testified at the oral hearing on June 28, 2006, that he worked full time in
1977 and 1978. Appellant noted that he also worked as an electrician wiring houses, but that he
was currently totally disabled. Following the oral hearing, he submitted a report dated July 24,
2006 from Dr. Thurman, who noted that appellant exhibited paraspinous muscle spasm and
decreased range of motion in his cervical and lumbar spine. Dr. Thurman stated, “[Appellant’s]
rheumatoid arthritis has severely aggravated his preexisting whiplash induced cervical spine
degenerative arthritis and his preexisting lumbar disc disease with low back pain. The
aggravation has worsened his neck and low back disease on a permanent basis to the degree that
he can no longer do the lifting and ambulation required to be a TV repairman or electrical
technician.”
By decision dated September 15, 2006, the hearing representative found that appellant’s
rheumatoid arthritis was not an accepted employment-related condition, that he had not argued
that the original determination was wrong and that he had not established a material change in
the nature and extent of his injury-related condition.
The record contains the documentation of the payments made by the Office to appellant
from September 12, 1985 through September 24, 1988 in the amount of $51,828.22.
In a preliminary determination of overpayment dated September 26, 2006, the Office
found that appellant had received an overpayment in the amount of $51,828.22 as he knowingly
failed to report his earnings on CA-1032 forms covering the period September 12, 1985 through
September 24, 1988. It determined that appellant received $51,828.22 in compensation benefits
from the period September 12, 1985 through September 24, 1988 and that due to the finding of

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forfeiture this entire amount was an overpayment. The Office allowed appellant 30 days for a
response or to request a prerecoupment hearing. Appellant did not respond. By decision dated
November 14, 2006, the Office finalized the preliminary determination of overpayment in the
amount of $51,828.22. It stated:
“The sum of $200.00 will be withheld from your continuing compensation
payments effective December 23, 2006. $107.70 was deducted from your
compensation checks in error for the period October 2 through
November 25, 2005. The total compensation withheld in error in the amount of
$1,650.50 has been applied towards the balance of your outstanding debt.
Therefore, your outstanding overpayment debt is $50,177.72.”
Appellant requested an oral hearing on December 7, 2006 and indicated that he disagreed
with the overpayment decision. By decision dated January 9, 2007, the Branch of Hearings and
Review denied appellant’s request for an oral hearing noting that he did not request a
prerecoupment hearing and that a final decision concerning an overpayment was not subject to
review except by the Board.
On appeal, before the Board, appellant noted that the Office had withheld $1,000.00 per
month from his continuing compensation payments beginning in May 1994 and that his
overpayment amount had not been reduced by this recovery nor had he been repaid this amount.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original rating was in error, there is a material
change in the nature and extent of the injury-related condition or that the employee has been
retrained or otherwise vocationally rehabilitated. The burden of proof is on the party attempting
to show a modification of the wage-earning capacity.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for back and neck strains as well as aggravation of
degenerative disc disease. On May 15, 1979 it reduced appellant’s compensation benefits based
on his ability to earn wages as a television service and repairman. Appellant alleged that he was
totally disabled on March 18, 1999 and requested modification of his wage-earning capacity
determination. He did not argue that the original determination was in error or that he had been
vocationally rehabilitated. Instead appellant alleged that his work-related condition had
worsened. In support of his claim, he submitted a series of reports from his physician,
Dr. Thurman, a Board-certified internist, who stated that appellant became totally disabled in
1993 due to his severe rheumatoid arthritis. Dr. Thurman stated that this condition aggravated
appellant’s cervical spine degenerative arthritis and his lumbar disc disease and that he was not
capable of performing the lifting and walking required by either his date-of-injury position or the
selected wage-earning capacity position.
4

Harley Sims, Jr., 56 ECAB 320, 323-24 (2005).

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Appellant has not demonstrated a material change in the nature and extent of his accepted
employment-related condition. In support of his claim of total disability commencing March 18,
1999, he asserted that there had been a change in the nature and extent of the injury-related
condition from one of partial disability to total disability. The medical evidence submitted by
appellant, however, establishes that his total disability is related to his rheumatoid arthritis and
not due to his federal employment.
The Board finds that the medical evidence from Dr. Thurman establishes that appellant’s
physical worsening from partial to total disability was due his condition of rheumatoid arthritis.
The fact that appellant’s condition worsened to total disability, however, is not sufficient for him
to meet his burden of proof to establish entitlement to additional compensation from the Office
for total disability. He must show that the material change in his condition constituted a natural
consequence arising from his former federal employment.
It is an accepted principle of workers’ compensation law and the Board has so recognized
that, when the primary injury is shown to have arisen out of and in the course of employment,
every natural consequence that flows from the injury is deemed to arise out of the employment,
unless it is the result of an independent intervening cause which is attributable to the employee’s
own intentional conduct.5 As is noted by Professor Larson in his treatise: “[O]nce the workconnected character of any injury, such as a back injury, has been established, the subsequent
progression of that condition remains compensable so long as the worsening is not shown to
have been produced by an independent nonindustrial cause.”6
The reports of Dr. Thurman state that appellant’s change in his back condition was not
due to the natural progression of his accepted employment-related injury for which he had been
found to be partially disabled with a wage-earning capacity based on his ability to perform work
as a television service and repairman. Rather, the medical reports establish that his back
condition worsened due to his nonemployment-related rheumatoid arthritis. This evidence
clearly establishes that appellant’s progression from partial disability to a total disability for
work had no relationship to residuals of his accepted employment-related injury. The Board
finds that appellant’s rheumatoid arthritis constitute an independent intervening cause for his
increased disability and worsening back condition. Therefore, appellant’s total disability for
work as of March 1999 was due to a subsequent nonemployment injury and is not compensable
beyond his wage-earning capacity as established in 1979.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of the Office’s implementing regulation provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,

5

A. Larson, The Law of Workers’ Compensation § 13.00 (2000); Dana Bruce, 44 ECAB 132, 145 (1992).

6

Id. at § 13.11(a).

5

omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [the Office] shall recover any
compensation already paid for the period of the forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”7
If a Form CA-1032 is improperly completed resulting in a finding of forfeiture, the Board
has found that the period of forfeiture is the entire 15-month period covered by the form in
question.8
ANALYSIS -- ISSUE 2
In the November 29, 1999 decision,9 the Board found that appellant received an
overpayment of compensation for the years 1986 and 1987 because he forfeited his
compensation during this period. The Board further found that appellant was at fault in the
creation of the overpayment and that therefore this overpayment was not subject to waiver. The
issue before the Office on remand from the Board’s November 29, 1999 decision was the amount
of the overpayment for the years 1986 and 1987.
The Office properly found that appellant signed CA-1032 forms on December 12, 1986,
February 5, 1987 and September 24, 1988, which failed to report his earnings in 1986 and 1987.
As noted above, appellant is responsible for repaying the compensation received during the
entire 15-month period covered by each of these forms, from September 12, 1985 through
September 24, 1988. The Office calculated the amount of compensation received by appellant
during this period to be $51,828.22. As the entire amount of compensation received from
September 12, 1985 through September 24, 1988 is an overpayment, the Board finds that the
Office adequately calculated and explained the amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The method by which the Office may recover overpayments is defined by regulation.
The applicable regulations, 20 C.F.R. § 10.441(a) provides as follows:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or attention is called to the
same. If no refund is made [the Office] 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 any hardship.”
7

20 C.F.R. § 10.529.

8

Ronald E. Ogden, 56 ECAB 278, 285 (2005).

9

Docket No. 97-2760 see supra note 1.

6

ANALYSIS -- ISSUE 3
The Board finds that the Office has not properly considered the facts of this case in
determining appellant’s repayment schedule in order to minimize hardship. The Office has
previously recovered from appellant’s compensation benefits $1,000.00 per month beginning in
May 1994 as noted in the May 27, 1994 and July 29, 1997 decisions of the Office. In the
November 14, 2006 decision, it did not consider this sum which had already been collected from
appellant in calculating the rate of his recovery, but did include a much lesser sum erroneously
collected of $1,650.50. On remand, the Office should determine the exact amount previously
collected from appellant beginning in 1994 and reduce his current overpayment by this amount
before determining an appropriate recovery schedule in order to minimize any hardship on him
in repaying his remaining overpayment of $50, 177.72.
LEGAL PRECEDENT -- ISSUE 4
Section 10.440(b) of the Office’s regulations provides that the only review of a final
decision concerning an overpayment is to the Board. The provisions of 5 U.S.C. § 8124(b)
(concerning hearings) and 5 U.S.C. § 8128(a) (concerning reconsiderations) do not apply to such
a decision.10 The Board has found that the implementation of this regulation is a proper exercise
of the Director’s discretion and that a claimant has no further right to review by the Office once a
final decision on the issue of overpayment has been issued.11
ANALYSIS -- ISSUE 4
The Office issued a final overpayment decision in this case on November 14, 2006.
Appellant requested an oral hearing regarding his overpayment on December 7, 2006. By
decision dated January 9, 2007, the Branch of Hearings and Review denied appellant’s request
for an oral hearing on the grounds that the only review of the November 14, 2006 decision was
by the Board. As noted above, this decision is in accordance with the Office’s regulations and
the findings of the Board. As appellant was not entitled to an oral hearing following the final
overpayment decision of November 14, 2006, the Branch of Hearings and Review properly
denied his request on January 9, 2007.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for modification of
his 1979 wage-earning capacity determination. The Board further finds that the Office properly
calculated the amount of the overpayment for the years 1986 and 1987 as $51.828.22. The
Board further finds that the Office must consider amounts previously collected from appellant in
determining his recovery schedule in order to reduce hardship on appellant. Additionally, the
Board finds that the Branch of Hearings and Review properly denied appellant’s request for an
oral hearing.

10

20 C.F.R. § 10.440(b). See also Jan K. Fitzgerald, 51 ECAB 659 (2000).

11

Charles E. Nance, 54 ECAB 447 (2003); Philip G. Feland, 48 ECAB 485 (1997).

7

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2007 and September 15, 2006
decision of the Office of Workers’ Compensation Programs are affirmed. The November 14,
2006 decision is affirmed in part and remanded for further action consistent with this decision of
the Board.
Issued: August 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Folsom, LA, Employer
__________________________________________

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

Docket No. 15-1012
Issued: September 1, 2015

Case Submitted on the Record

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

JURISDICTION
On March 31, 2015 appellant, through counsel, filed a timely appeal from a February 18,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On August 26, 2013 appellant, then a 32-year-old rural carrier, filed an occupational
disease claim. She claimed that picking up tubs and trays of mail caused a strain. Appellant

1

5 U.S.C. § 8101 et seq.

advised that she became aware of her condition on May 21, 2013.
August 26, 2013.

She stopped work on

By letter dated September 20, 2013, OWCP notified appellant that evidence was
insufficient to establish the claim. Appellant was instructed to return a questionnaire establishing
the factual element of her claim and advised of the type of medical evidence needed.
In an August 26, 2013 statement, appellant’s postmaster advised that appellant informed
him that she injured her right arm on May 21, 2013 while pulling, opening, and closing
mailboxes. The statement noted that appellant did not earlier report this May 21, 2013 injury.
However, she reported a May 18, 2013 injury where she shoved her shoulder into a lock door but
declined to file a claim or seek medical attention. An attached May 20, 2013 statement from the
postmaster advised that appellant informed him that she was injured when she hit her shoulder
on a door at work on May 18, 2013. Appellant was asked if she wanted to file a claim and seek
medical attention, but she declined.
On August 26, 2013 appellant advised that on May 21, 2013 she began to feel pain in her
right arm while pulling on mailboxes during her delivery route. She noted that the pain shot
from her elbow to her shoulder and into her lower neck. Appellant stated that her physician told
her to take a week off from work at that time. She related that initially she seemed fine and
returned to work, but on August 22, 2013 her symptoms returned while picking up tubs and trays
of mail.
Medical evidence submitted included a May 21, 2013 report from Dr. Joseph Perdigao, a
Board-certified diagnostic radiologist. He advised that a cervical spine x-ray revealed no acute
fracture, dislocation, significant degenerative disc disease, or degenerative joint disease.
Dr. Perdigao noted that there was minimal age-related posterior spondylosis in the cervical spine.
Appellant also submitted a May 21, 2013 report signed by a family nurse practitioner.
In an October 1, 2013 report, Dr. Herbert Reiss Plauche, a Board-certified orthopedic
surgeon, advised that appellant sustained a work-related injury to her right elbow on
May 21, 2013. He noted that appellant reached out to the right side, pulled on a mailbox door,
and felt a pop in her elbow. Appellant returned to work and, after two or three days, had
recurrent elbow pain. She tried to work the next several months but developed elbow soreness
with some radiating numbness down the right forearm and into the hand. Appellant also had
shoulder pain in the upper trapezial area which she attributed to change in activity level and
alteration in her use. Dr. Plauche advised that appellant had been off work since August. On
examination he found tenderness in the trapezial area and anterior elbow at the radial head, no
palpable spasm, full cervical flexion and extension, mild diminished sensibility in the median
and ulnar distribution, and minimal Tinel’s at both the elbow medially and at the carpal canal.
Dr. Plauche assessed right elbow pain with some numbness in the fingertips. He opined that the
shoulder symptoms were likely muscular in nature and related to appellant’s modification of
work activities and home duties.
By decision dated October 25, 2013, OWCP denied the claim because medical evidence
did not establish that a condition was diagnosed in connection with the alleged work events.

2

Appellant’s counsel requested an oral telephone hearing which took place on
May 19, 2014. He detailed the medical evidence submitted and reiterated that appellant’s
physician opined that her condition was work related.
Prior to the hearing, appellant submitted additional medical evidence. On November 12,
2013 Dr. Plauche advised that appellant complained of pain in the elbow radiating up to the
upper arm, shoulder, and neck down to the hand. He noted that she attributed her symptoms to
repetition and overuse of the right arm and that she had been off work since August 2013.
Dr. Plauche advised that appellant sorted and delivered mail and that on one occasion she
reached out to open a mailbox and pulled a stuck door resulting in a sharp pain in the posterior
elbow. On examination he found posterior and medial elbow tenderness, good cervical range of
motion, tenderness along the left lateral neck, no gross paraspinous spasm, negative Spurling’s
test, and no full elbow and shoulder motion. Dr. Plauche assessed right posterior olecranon
tenderness, medial elbow tenderness, and pain with radiation discomfort in the upper lower arm.
He recommended that appellant undergo a course of occupational therapy.
In a November 6, 2013 report, Dr. Paul Mclean Jackson, a Board-certified diagnostic
radiologist, advised that the magnetic resonance imagining (MRI) scan of the right elbow
revealed mild tendinosis of the common extensor tendon origin at the lateral epicondyle. He also
noted that appellant had a suspected small accessory muscle within the posterior aspect of the
cubital tunnel which could result in impingement of the descending ulnar nerve. In a
November 6, 2013 report, Dr. Jigar Patel, Board certified in diagnostic radiology, advised that a
right shoulder MRI scan revealed no acute abnormality and mild early acromioclavicular joint
degenerative changes.
In a January 29, 2014 disability status report, Dr. Plauche advised that appellant was
unable to return to work for the next 30 days. In a February 18, 2014 report, he advised that she
had an overuse work-related injury on August 22, 2013 and reiterated the findings of earlier
diagnostic testing. Dr. Plauche noted that appellant was being treated with physical therapy and
recommended a functional capacity evaluation to find a more appropriate line of work as
appellant believed her repetitive duties contributed to her condition.
In a January 30, 2014 report, Dr. Jackson advised that a cervical spine MRI scan revealed
slight straightening and kyphotic curvature of the cervical spinal column, shallow central
subligamentous disc protrusion at C6-7, no significant spinal canal narrowing, foraminal
narrowing, nerve root contact, or impingement at any level.
Appellant submitted a March 13, 2014 functional capacity evaluation from a physical
therapist who indicated that she could work full-time work in a light-duty capacity.
By decision dated July 8, 2014, the hearing representative affirmed the October 25, 2013
decision because the medical evidence was not sufficient to establish that elbow tendinosis, right
shoulder degenerative changes, and cervical disc protrusion was caused by work factors.
In an August 14, 2014 report, Dr. Plauche advised that appellant related that she had an
over-use injury in May 2013 and was later reinjured in August 2013. He stated that he did not
have any evidence to dispute her claim that her symptoms developed through her repetitive use

3

at work and opined that her symptoms were likely due to the type of work she did. Dr. Plauche
noted that appellant’s position included a lot of repetitive lifting. He advised that his report was
in support of appellant obtaining workers’ compensation benefits so that she could obtain
medical treatment and return to her previous position or to receive vocational training to obtain
another position.
By letter dated October 1, 2014, appellant, through counsel, requested reconsideration.
Dr. Scott Sondes, a Board-certified physiatrist, on August 18, 2014, advised that
appellant was injured in May 2013 while lifting bins at work and later reinjured in August 2013.
On examination he noted trigger point palpation in the splenius cervicis and positive Spurling’s
test.
Dr. Sondes assessed cervical herniated nucleus pulposus, cervical radiculopathy,
cervicalgia, neuropathy, neuralgia, and spinal enthesopathy. In a September 22, 2014 disability
status report, he noted treating appellant for cervical radiculopathy and advised that she was
unable to return to work. On October 13, 2014 Dr. Sondes advised that appellant continued to
complain of headaches, severe neck and shoulder spasms, and pain in the right arm. He noted
that she underwent trigger point injections to help with her symptoms. Dr. Sondes opined that
given her job and injury, her condition appeared to be work related beyond reasonable medical
certainty.
In a November 12, 2014 report, Dr. Sondes advised that appellant complained of neck
pain as a result of lifting bins full of mail in May 2013. He reiterated her treatment history and
opined that given the nature of her injury and symptoms, her condition was caused and worsened
by work-related duties beyond a reasonable degree of medical certainty. Dr. Sondes stated that
he had no doubt in his mind of this causation.
By decision dated February 18, 2015, OWCP denied modification of its July 8, 2014
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 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.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, 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 claimant.5
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.6
ANALYSIS
Appellant claimed that she began experiencing right elbow and shoulder pain as a result
of pulling on mailboxes and picking up tubs and trays of mail. There is no dispute that she
opened and closed mailboxes and lifted mail as a part of her job. However, the Board finds that
medical evidence of record is insufficient to establish that the medical conditions were causally
related to the accepted work events.
In his October 1, 2013 report, Dr. Plauche advised that appellant sustained a work-related
injury to her right elbow on May 21, 2013 when she pulled on a mailbox door, and felt a pop in
her elbow. He opined that the shoulder symptoms were likely muscular in nature and related to
appellant’s modification of work activities. This report is insufficient to discharge appellant’s
burden of proof because Dr. Plauche did not clearly explain why particular work duties caused or
contributed to a diagnosed condition. On November 12, 2013 Dr. Plauche noted that appellant
attributed her symptoms to repetition and overuse of the right arm. He advised that she sorted
and delivered mail and that on one occasion she reached out to open a mailbox and pulled a stuck
door resulting in a sharp pain in the posterior elbow. Dr. Plauche stated that appellant attributed
her condition to repetition and overuse of the arm but he did not offer his own opinion as to the
cause of her condition. The Board has held that a physician’s opinion regarding causal
relationship that appears to be primarily based on appellant’s own representations rather than on
objective medical findings is of limited probative value.7 In his February 18, 2014 report,
Dr. Plauche advised that appellant had an overuse work-related injury on August 22, 2013. He
opined that her symptoms were likely due to the type of work she did and noted that her position
included a lot of repetitive lifting. Dr. Plauche’s use of the word “likely” makes his opinion
speculative. The Board has held that medical opinions which are speculative or equivocal are of
4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.J., 59 ECAB 408 (2008); supra note 3.

6

James Mack, 43 ECAB 321 (1991).

7

C.M., Docket No. 14-88 (issued April 18, 2014).

5

diminished probative value.8 In none of his reports did Dr. Plauche provide medical reasoning to
explain how particular work factors caused or contributed to a diagnosed medical condition.
These reports are insufficient to establish appellant’s claim.
In his November 12, 2014 report, Dr. Sondes advised that appellant complained of neck
pain as a result of lifting bins full of mail in May 2013. He opined that given the nature of her
injury and symptoms, appellant’s condition was caused and worsened by her work-related duties
beyond a reasonable degree of medical certainty. Dr. Sondes stated that he had no doubt in his
mind of this causation. This report is insufficient to discharge appellant’s burden of proof
because Dr. Sondes does not provide medical rationale to explain how lifting mail caused or
aggravated appellant’s cervical herniated nucleus pulposus, cervical radiculopathy, cervicalgia,
neuropathy, neuralgia, and spinal enthesopathy. Dr. Sondes’ August 18, 2014 report advised that
appellant was injured in May 2013 while lifting bins at work and later reinjured in August 2013.
On October 13, 2014, Dr. Sondes noted appellant’s continuing symptoms and opined that given
her job and injury, her condition appeared to be work related beyond reasonable medical
certainty. These reports are of limited probative value as Dr. Sondes does not provide medical
rationale to explain his opinion on causation.
Multiple diagnostic and disability status reports were submitted. However, they are
insufficient to discharge appellant’s burden of proof as they do not offer a physician’s opinion on
causal relationship.9
OWCP also received evidence from a nurse practitioner and a physical therapist.
However, physical therapists and nurse practitioners are not physicians as defined under the
FECA.10 Thus, these reports have no probative medical value and are insufficient to discharge
appellant’s burden of proof.
Consequently, appellant has submitted insufficient medical evidence to establish her
claim. As noted, causal relationship is a medical question that must be established by probative
medical opinion from a physician.11 The physician must accurately describe appellant’s work
duties and medically explain the pathophysiological process by which these duties would have

8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
9

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship).
10

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See Charley V.B. Harley, 2 ECAB 208, 211
(1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
11

See supra note 5.

6

caused or aggravated his condition.12 Because appellant has not provided such medical opinion
evidence in this case, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
caused by work-related events.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2015 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: September 1, 2015
Washington, DC

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

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

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

12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Leesburg, VA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1384
Issued: February 21, 2019

Case Submitted on the Record

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

JURISDICTION
On July 2, 2018 appellant, through counsel, filed a timely appeal from a June 28, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated August 22, 2017, which became final after 30 days of
issuance and is not subject to further review.2 As there was no merit decision by OWCP within
180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation

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
20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018); T.B., Docket No. 15-0001 (issued
July 1, 2015); C.M., Docket No. 15-0471 (issued April 27, 2015); D.A., Docket No. 08-1217 (issued October 6, 2008).

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior decisions are incorporated herein by reference. The relevant facts are as follows.
On August 28, 1987 appellant, then a 35-year-old air traffic controller, filed an
occupational disease claim (Form CA-2) alleging intermittent respiratory and cardiac problems,
anxiety, chronic fatigue, depression, intermittent muscular problems, and temporomandibular joint
(TMJ) dysfunction. By decision dated April 23, 1992, OWCP accepted her claim for anxiety
disorder, fatigue, aggravation of asthma, and fibromyositis. It authorized payment of wage-loss
compensation and medical benefits on May 23, 1994.
On December 17, 2012 OWCP referred appellant, a list of questions, and a statement of
accepted facts (SOAF) for a second opinion evaluation with Dr. Anjali Pathak, a Board-certified
psychiatrist. In her January 28, 2013 report, Dr. Pathak diagnosed anxiety disorder, conversion
disorder/somatization disorder, and dependent personality disorder. She opined that appellant’s
anxiety disorder was causally related to her federal employment. Dr. Pathak found that appellant’s
symptoms of anxiety were chronic and pervasive and likely to interfere with her ability to work at
the employing establishment. She concluded that appellant was not currently a candidate for
vocational rehabilitation.
On March 27, 2013 OWCP requested clarification from Dr. Pathak to further explain her
findings. In an April 23, 2013 report, Dr. Pathak opined that appellant’s symptoms of anxiety
including feelings of apprehension, irritability, and labiality of affect, as well as nightmares and
flashbacks, were directly related to her work. She reviewed appellant’s post-employment activities
including running for political office and traveling abroad. Dr. Pathak opined that appellant was
not totally disabled and could work for an agency not related to the employing establishment. She
determined that appellant could participate in vocational rehabilitation and that there were no
psychiatric work restrictions other than not working for the employing establishment.
On March 10, 2014 Dr. Leonard J. Hertzberg, a Board-certified psychiatrist, diagnosed
anxiety disorder. He opined that appellant continued to be disabled from working at the employing

3

5 U.S.C. § 8101 et seq.

4
Docket No. 16-1198 (issued August 22, 2017), petition for recon. denied, Docket No. 16-1198 (issued May 17,
2018); Docket No. 18-0038 (issued January 4, 2019).

2

establishment. Dr. Hertzberg noted, “It is not envisioned that [appellant] will be fit to work in any
capacity and her status is regarded as permanent.”
In a letter dated January 27, 2015, OWCP proposed to reduce appellant’s compensation
benefits as she was no longer totally disabled and had the capacity to earn wages as a customer
service representative at the rate of $431.60 per week. It relied on Dr. Pathak’s April 23, 2013
report and afforded appellant 30 days to respond.
By decision dated January 8, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective January 8, 2015 for the conditions of aggravation of asthma, fatigue,
and fibromyositis. It noted that she was entitled to continued medical benefits and wage-loss
compensation as a result of her anxiety disorder.
By decision dated March 2, 2015, OWCP reduced appellant’s loss of wage-earning
capacity (LWEC) benefits, effective March 8, 2015, based on her capacity to earn wages as a
customer service representative. It based her work restrictions on those set forth in the April 23,
2013 report of Dr. Pathak. On March 30, 2015 counsel requested a review of the written record
from OWCP’s Branch of Hearings and Review of the wage-earning capacity determination. By
decision dated December 14, 2015, OWCP’s hearing representative found that the March 2, 2015
wage-earning capacity determination was appropriate and that appellant had not established that
the decision should be modified.
On January 5, 2016 appellant, through counsel, requested reconsideration of OWCP’s
January 8, 2015 decision terminating appellant’s wage-loss compensation and medical benefits for
fatigue, aggravation of asthma, and fibromyositis. By decision dated January 27, 2016, OWCP
denied modification of its January 8, 2015 termination decision.
On May 16, 2016 counsel appealed the December 14, 2015 LWEC decision to the Board,
contending that Dr. Pathak’s reports were stale and that the SOAF provided her was inaccurate.
On January 25, 2017 appellant, through counsel, requested reconsideration of the
January 27, 2016 termination decision on January 25, 2017. By decision dated April 12, 2017,
OWCP denied modification of the January 27, 2016 termination decision.5
On May 8, 2017 OWCP referred appellant for an additional second opinion evaluation with
Dr. Pathak. On June 15, 2017 Dr. Pathak completed a report reviewing appellant’s history of
injury. She found that appellant exhibited a mildly depressed mood, and that she reported
symptoms of anxiety with triggers such as meeting people who work for the employing
establishment and sexual harassment claims in the news. Dr. Pathak diagnosed anxiety disorder.
She found that appellant was not currently disabled from a psychiatric standpoint from performing
the duties of her date-of-injury job. Dr. Pathak also found that the anxiety appellant experienced
5

On October 5, 2017 counsel appealed the April 12, 2017 decision to the Board. In its January 4, 2019 decision,
the Board found that OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical
benefits for the accepted conditions of aggravation of asthma, fatigue, and fibromyositis, effective January 8, 2015.
The Board further found that she had not established continuing employment-related disability or residuals due to the
accepted physical conditions after January 8, 2015. Docket No. 18-0038 (issued January 4, 2019).

3

was chronic and would not resolve completely. She concluded that appellant’s accepted condition
of anxiety state had not resolved due to her ongoing OWCP claim. Dr. Pathak noted, “This
perpetuates the memory of the harassment she received while employed at the [employing
establishment].”
In its August 22, 2017 decision,6 the Board found that OWCP had met its burden of proof
to reduce appellant’s monetary benefits effective March 8, 2015 based on her capacity to earn
wages in the constructed position of customer service representative based on Dr. Pathak’s
April 23, 2013 report.
On November 16, 2017 OWCP requested a supplemental report from Dr. Pathak.
Dr. Pathak responded on December 7, 2017 and opined that appellant was not currently disabled
from a psychiatric standpoint other than her inability to work at the employing establishment. She
noted that appellant currently experienced anxiety symptoms when exposed to triggers that remind
her of the employment-related sexual harassment. Dr. Pathak found, “She may not be able to
return to work as an air traffic controller from a psychiatric standpoint.” She noted that appellant
could return to work for any employer not related to the employing establishment.
On June 11, 2018 appellant, through counsel, requested reconsideration of the March 2,
2015 LWEC determination. She again contended that Dr. Pathak’s opinion was stale and based
on an improper SOAF. Appellant also submitted a March 22, 2018 report from Dr. Hertzberg.
Dr. Hertzberg examined appellant and diagnosed anxiety disorder. He noted that appellant’s
symptoms were exacerbated by discussion of her employing establishment workplace stressors.
Dr. Hertzberg opined that appellant was permanently disabled and unable to work with or without
accommodation. He concluded that appellant’s present permanent psychiatric disability was a
direct result of her work-related injury.
By decision dated June 28, 2018, OWCP denied appellant’s June 11, 2018 reconsideration
request. It found that the arguments submitted in support of the June 11, 2018 reconsideration
request were repetitious. OWCP further found that Dr. Hertzberg’s March 22, 2018 report was
not relevant as he had not discussed appellant’s ability to work during 2015 when the LWEC
determination was issued.
LEGAL PRECEDENT
A LWEC 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.7 As a
general rule, once a LWEC of an injured employee is determined, it remains undisturbed regardless
of actual earnings or lack of earnings until properly modified.8 A formal LWEC determination
will be modified when: (1) the original rating was in error; (2) the claimant’s medical condition

6

Supra note 4.

7

K.K., Docket No. 17-0242 (issued May 9, 2017).

8

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

4

has materially changed; or (3) the claimant has been vocationally rehabilitated.9 The burden of
proof is on the party attempting to show that modification of the LWEC determination is
appropriate.10 Any request for modification should be reviewed carefully by OWCP to determine
whether the claimant is seeking a reconsideration of a recently issued LWEC determination or
requesting modification of the LWEC determination.11 There is no time limit for a claimant to
submit a request for modification of a LWEC determination.12
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.13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or 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.14
A request for reconsideration must be received by OWCP within one year of the last merit
decision.15 If OWCP chooses to grant reconsideration, it reopens and reviews the case on its
merits.16 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.17
ANALYSIS
The Board finds that this case is not in posture for decision.

9

E.H., Docket No. 17-0963 (issued August 24, 2018).

10

Supra note 7.

11

Supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning
Capacity Decisions, Chapter 2.1501.4(a) (June 2013).
12

A.G., Docket No. 14-1347 (issued December 9, 2014).

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b)(3); see also H.W., Docket No. 18-1175 (issued December 6 , 2018); L.S., Docket No. 180811 (issued November 13, 2018).
15

Id. at § 10.607(a); see also 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.
16

Id. at § 10.608(b).

17

Id.; H.W., supra note 14.

5

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
that was previously consideration in the August 22, 2017 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.18
Following the Board’s August 22, 2017 decision, appellant filed a request for
reconsideration on June 11, 2018 and repeated her previous arguments made before the Board
regarding Dr. Pathak’s April 23, 2013 report. She also submitted medical evidence from
Dr. Hertzberg dated March 22, 2018.
Although appellant requested reconsideration, as noted above, when the underlying issue
is LWEC, an initial question is whether the claimant has submitted an application for
reconsideration of a recent LWEC determination or has requested modification of LWEC
determination.19 This requires that OWCP conduct a limited review of the evidence or argument
submitted to determine if the claimant is alleging either that the original determination was in error
or that her injury-related condition had worsened.20 While appellant, through counsel, resubmitted
arguments regarding the original LWEC determination which had previously been reviewed by
the Board,21 she also submitted new medical evidence from Dr. Hertzberg. The Board has held
that, when an LWEC has been issued and appellant submits evidence with respect to one of the
criteria for modification, OWCP must evaluate the evidence to determine if modification of the
LWEC is warranted.22 In this case, Dr. Hertzberg supported that appellant was totally disabled on
March 22, 2018 due to her accepted employment injuries. Therefore, appellant has submitted
medical evidence with respect to one of the criteria for an LWEC modification in asserting that
her injury-related condition had worsened.23
The Board finds that OWCP should have adjudicated appellant’s June 11, 2018 request as
a request for modification of the March 2, 2015 LWEC determination. This adjudication should
have included a merit review of the evidence submitted in support of the request.24 The Board
will, therefore, remand the case to OWCP for proper adjudication, to be followed by an appropriate
merit decision to preserve her appeal rights.

18

J.L., Docket No. 17-1460 (issued December 21, 2018).

19

B.R., Docket No. 17-0635 (issued August 2, 2017).

20

Supra note 11 at Chapter 2.1501.4(b).

21

These repetitious arguments alone would not warrant treating her request as a request for modification of the
LWEC. See H.W., supra note 14; G.A., Docket No. 14-1505 (issued November 5, 2014) (repetitious evidence and
arguments should be evaluated under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(3) rather than as a request for
modification of an LWEC).
22

Supra note 9.

23

Id.

24

Id.

6

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with decision of the Board.
Issued: February 21, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
La Puente, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-11
Issued: March 10, 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 September 30, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ May 16 and June 24, 2008 decisions that denied his claim. 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 met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty on March 26, 2008.
FACTUAL HISTORY
On April 1, 2008 appellant, then a 59-year-old letter carrier, filed a traumatic injury claim
alleging that on March 26, 2008 he sustained a possible cartilage tear to his right knee joint when
a dog ran towards him while he was delivering mail to a house. He did not stop work. Appellant
explained that he was delivering mail to a house when the garage door opened and a dog ran out
towards him. He ran back to his vehicle without being attacked and was able to finish his route
and return to the post office. The employing establishment controverted the claim.

In an April 1, 2008 duty status report, Dr. Herve Dumont, a Board-certified surgeon,
noted that appellant was injured while quickly walking back to his truck. He stated that
appellant’s account of the injury did not correspond to the one given by the employing
establishment, which stated that appellant sustained a right knee injury when a dog came out of a
garage while he was delivering mail. Dr. Dumont diagnosed a right knee condition and noted
that appellant could perform full duty. In an April 3, 2008 report, he stated that appellant
explained that he had been attacked by a dog while working and had injured his right knee
getting away. Appellant complained of right knee pain. Dr. Dumont noted right lateral knee
tenderness and no swelling. He diagnosed sprain, strain of the knee and indicated that appellant
could perform regular work. Dr. Dumont concluded that his findings were not consistent with
appellant’s account of the injury and noted the incident was nonindustrial.
In an April 16, 2008 letter, the Office advised appellant of the factual and medical
evidence needed to establish his claim and provided him 30 days to submit additional
information. It requested a physician’s report describing any preexisting right knee conditions as
well as treatment sought for the present right knee condition. Appellant submitted an April 23,
2008 work restriction form of Dr. Lincoln Yee, a Board-certified orthopedic surgeon, who
advised no prolonged standing, walking or squatting.
In a May 16, 2008 decision, the Office denied appellant’s claim finding the medical
evidence insufficient to establish that his right knee injury was related to the March 26, 2008
work incident.
On May 27, 2008 appellant requested reconsideration. He submitted a May 7, 2008
medical report of Dr. Yee who noted that he reported that he twisted his right knee and
developed right knee pain after turning and running from a dog that was charging after him on
March 26, 2008. Appellant complained of posterolateral knee joint pain and intermittent
popping and catching. Dr. Yee noted appellant’s history of right knee arthroscopy in 2000 and
right knee injuries on January 27, 1999 and June 29, 2000. In the “causation” section of the
report, he noted preexisting mild degenerative changes that needed to be considered. Dr. Yee
diagnosed mild effusion of the right knee and advised a repeated magnetic resonance imaging
(MRI) scan of the right knee to rule out a lateral meniscus tear. He concluded that appellant’s
complaints were consistent with the March 26, 2008 mechanism of injury, “in the absence of any
history of trauma and noted complaints.” Dr. Yee also noted that appellant was able to continue
his usual activities.
In a June 24, 2008 decision, the Office denied modification of the May 16, 2008 decision
finding that the medical evidence lacked medical reasoning to support causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing 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 filed
within the applicable time limitation; that an injury was sustained while in the performance of
1

5 U.S.C. §§ 8101-8193.

2

duty as alleged and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “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, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
The record supports that appellant was delivering mail on March 26, 2008 when a dog
chased after him causing him to turn and run to his vehicle. However, he has not submitted
sufficient medical evidence to establish that this incident caused his diagnosed right knee
condition.
On May 7, 2008 Dr. Yee provided a history of appellant’s work injury as well as a past
medical history describing his previous arthroscopic surgery and injuries to his right knee. He
noted that appellant had preexisting mild degenerative changes needing consideration. Dr. Yee
concluded that appellant’s right knee injury was consistent with the March 26, 2008 mechanism
of injury, in the absence of any history of trauma and noted complaints. However, in that same
report, he notes a history of trauma with references to appellant’s prior right knee injuries and
arthroscopy as well as his disclaimer that appellant had preexisting degenerative changes.
Although Dr. Yee provided some support for causal relationship between appellant’s right knee
condition and the March 26, 2008 work incident, his report does not adequately explain the basis
for his stated conclusion. The weight of medical evidence is determined by its reliability, its
probative value and its convincing quality. The factors that comprise the evaluation of medical
evidence include the opportunity for and the thoroughness of physical examination, the accuracy
2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

and completeness of the physician’s knowledge of the facts and medical history, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.
The opinion of a physician must be of reasonable medical certainty and must be supported by
medical rationale explaining causal relationship.5 The need for medical reasoning in support of
Dr. Yee’s opinion on causal relationship is important since Dr. Yee’s report confirmed that
appellant had previous injuries to the right knee.
Moreover, Dr. Dumont, in his April 3, 2008 form report, opined that appellant’s
condition was nonindustrial. He further noted that appellant could resume his regular work.
The other medical reports of record do not specifically support that the March 26, 2008
work incident caused or aggravated a diagnosed medical condition. Consequently, appellant has
not submitted sufficient medical evidence to establish a causal relationship between his right
knee condition and the March 26, 2008 work incident.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a traumatic injury on March 26, 2008 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated June 24 and May 16, 2008 are affirmed.
Issued: March 10, 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
5

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

4