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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1387
Issued: September 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2016 appellant, through counsel, timely appealed the March 22, 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 over the merits of the claim.3
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) (2014). 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 (2006). Demands for
payment of fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for
investigation.
2
3

5 U.S.C. § 8101 et seq.

The case record provided to the Board includes evidence received after OWCP issued its March 22, 2016
decision. The Board is precluded from considering evidence that was not in the case record at the time OWCP
rendered its final decision. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has greater than eight percent permanent impairment of
the left upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
Appellant, a 53-year-old mail handler, has an accepted occupational disease claim, File
No. xxxxxx161, for acquired trigger finger (right long finger) and right lateral epicondylitis,
which arose on or about July 1, 2011. Additionally, under File No. xxxxxx173, OWCP
previously accepted bilateral carpal tunnel syndrome, with a June 4, 2008 date of injury.4
Appellant underwent right and left carpal tunnel releases on March 3 and April 28, 2009,
respectively. She also had a right long finger trigger release on January 17, 2012, followed by a
repeat right carpal tunnel release on January 24, 2012.
A February 5, 2010 cervical magnetic resonance imaging (MRI) scan revealed mild
multi-level degenerative disc disease with superimposed disc protrusions at C2-3 and C3-4. To
date, OWCP has not accepted an employment-related cervical condition under the current
claim(s).
In July 2015, appellant filed a claim (Form CA-7) for a schedule award.
Dr. David Weiss, a Board-certified orthopedic surgeon, examined appellant on
October 17, 2013, and provided a May 15, 2014 bilateral upper extremity impairment rating. He
diagnosed cumulative and repetitive trauma disorder, bilateral carpal tunnel syndrome -- status
post bilateral carpal tunnel releases, recurrent right carpal tunnel syndrome, bilateral flexor
tenosynovitis -- status post bilateral forearm fasciotomy and flexor tenosynovectomy, chronic
right elbow medial and lateral epicondylitis, and right long finger stenosing tenosynovitis -status post trigger finger release. Dr. Weiss also diagnosed preexisting chronic cervical
strain/sprain, right cervical radiculopathy (C5-6), and protruding-type cervical disc herniation
(C3-4). He indicated that appellant had reached maximum medical improvement (MMI) as of
October 17, 2013.
With respect to appellant’s right upper extremity, Dr. Weiss found a combined nine
percent impairment under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (6th ed. 2009). This included seven percent
impairment for right wrist median nerve entrapment neuropathy.5 Dr. Weiss also found one
percent impairment due to a mild sensory deficit involving the right C7 nerve root.6

4

OWCP combined the two above-noted upper extremity claims and designated the July 1, 2011 injury claim, File
No. xxxxxx161, as the master file.
5

See Table 15-23, Entrapment/Compression Neuropathy Impairment, A.M.A., Guides 449 (6th ed. 2009).

6

See Proposed Table 1, Spinal Nerve Impairment: Upper Extremity Impairments, The Guides Newsletter
(July/August 2009).

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Additionally, he calculated one percent impairment for right elbow medial/lateral epicondylitis.7
As noted, appellant’s combined right upper extremity impairment was nine percent.8
Regarding appellant’s left upper extremity, Dr. Weiss found spinal nerve extremity
impairment involving the C5, C6, and C7 nerve roots.9 At C5, he found a moderate sensory
deficit (three percent).10 Dr. Weiss also found mild sensory deficits at C6 (two percent) and C7
(one percent).11 Additionally, he found eight percent impairment due to left carpal tunnel
syndrome.12 The combined left upper extremity impairment rating was 14 percent.13
In his May 15, 2014 report, Dr. Weiss referenced three electrodiagnostic studies
(EMG/NCV) dated June 4, 2008, December 17, 2009, and June 9, 2011. The latest June 2011
study revealed mild C5-6 radiculopathy on the right and moderate carpal tunnel syndrome,
bilaterally. Dr. Weiss’ physical examination included Semmes-Weinstein monofilament testing
that revealed diminished sensibility over the left C5, C6, and C7 dermatomes, as well as
diminished sensibility over the right C7 dermatome. Monofilament testing also revealed
diminished sensibility over the median nerve distribution of the left and right hands.
OWCP forwarded the case to its district medical adviser (DMA), Dr. Arnold T. Berman,
a Board-certified orthopedic surgeon. In an August 3, 2015 report, Dr. Berman found eight
percent impairment of the left upper extremity and nine percent impairment of the right upper
extremity. The DMA disagreed with Dr. Weiss’ inclusion of impairment due to cervical
radiculopathy. Dr. Berman, the DMA, noted that cervical radiculopathy was not an accepted
condition, and further explained that the EMG/NCV results and clinical evidence did not support
Dr. Weiss’ rating for cervical radiculopathy.14 Additionally, the DMA noted that Dr. Weiss had
not rated appellant for his right trigger finger condition.
The DMA essentially concurred with Dr. Weiss’ right upper extremity impairment
ratings for carpal tunnel syndrome (seven percent) and right elbow lateral epicondylitis (one
percent). However, he omitted Dr. Weiss’ one percent rating for a mild C7 sensory deficit, and
found an additional one percent upper extremity impairment for digital stenosing tenosynovitis

7

See Table 15-4, Elbow Regional Grid: Upper Extremity Impairments, A.M.A., Guides 399 (6th ed. 2009).

8

See Appendix A -- Combined Values Chart, A.M.A., Guides 604 (6th ed. 2009).

9

See Proposed Table 1, The Guides Newsletter (July/August 2009).

10

Id.

11

Id.

12

See Table 15-23, A.M.A., Guides 449 (6th ed. 2009).

13

See Appendix A, A.M.A., Guides 604 (6th ed. 2009).

14

With respect to the EMG/NCV results, the DMA explained that the reported evidence of cervical radiculopathy
overlapped with the carpal tunnel syndrome, which required surgery. He indicated that there was no bona fide
evidence of cervical spine radiculopathy.

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(trigger digit).15 The combined right upper extremity impairment was nine percent. On the left
side, the DMA similarly concurred with Dr. Weiss’ eight percent rating for carpal tunnel
syndrome, however, he omitted Dr. Weiss’ ratings for spinal nerve extremity impairment
involving the C5, C6, and C7 nerve roots. Lastly, he accepted Dr. Weiss’ finding that appellant
had reached MMI on October 17, 2013.
On September 22, 2015 OWCP granted a schedule award for eight percent permanent
impairment of the left upper extremity and nine percent permanent impairment of the right upper
extremity. The award covered a period of 53.04 weeks from October 17, 2013 through
October 23, 2014. OWCP explained that it relied on the DMA’s findings, which differed to
some extent from Dr. Weiss’ May 15, 2014 impairment rating.
Counsel timely requested a hearing, which was held before an OWCP hearing
representative on January 14, 2016. At the hearing, he argued that impairment due to appellant’s
preexisting cervical condition should be taken into account when rating her upper extremities.
Counsel also took issue with the DMA’s assertion that there was inadequate clinical evidence to
support Dr. Weiss’ spinal nerve extremity impairment rating. He argued that OWCP should
have based the September 22, 2015 schedule award on the treating physician’s impairment
rating. Alternatively, counsel argued that OWCP should have declared a conflict in medical
opinion between Dr. Weiss and the DMA.
By decision dated March 22, 2016, the hearing representative affirmed the September 22,
2015 schedule award. While acknowledging that preexisting impairments should be taken into
account, the hearing representative accepted the DMA’s opinion over Dr. Weiss’ May 15, 2014
impairment rating.
LEGAL PRECEDENT
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.16 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”17 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.18

15

See Table 15-2, Digit Regional Grid, A.M.A., Guides 392 (6th ed. 2009). The DMA converted appellant’s six
percent digit (middle finger) impairment under Table 15-2 to a one percent upper extremity impairment. See Table
15-12, A.M.A., Guides 421 (6th ed. 2009).
16

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on
behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
17

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

18

Gary R. Sieber, 46 ECAB 215, 225 (1994).

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Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.19 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.20 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).21
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.22 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.23 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology
for rating spinal nerve extremity impairment.24 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
FECA-approved methodology is premised on evidence of radiculopathy affecting the upper
and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the procedure manual.25
When determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.26 Impairment ratings for schedule awards include those
conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.27 If the work-related injury has affected any residual usefulness in
whole or in part, a schedule award may be appropriate.28 There are no provisions for
apportionment under FECA.29 When the prior impairment is due to a previous work-related

19

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’
compensation. 5 U.S.C. § 8107(c)(1).
20

20 C.F.R. § 10.404.

21

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
22

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

23

Supra note 21 at Chapter 2.808.5c(3).

24

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).
25

See supra note 21 at Chapter 3.700, Exhibit 4.

26

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

27

Supra note 21 at Chapter 2.808.5d.

28

Id.

29

Id.

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injury and a schedule award has been granted for such prior impairment, the percentage already
paid is subtracted from the total percentage of impairment.30
ANALYSIS
Appellant’s physician, Dr. Weiss, found 14 percent permanent left upper extremity
impairment and nine percent permanent right upper extremity impairment. Both upper extremity
ratings included components for spinal nerve extremity impairment. On the right side, Dr. Weiss
found one percent impairment for a mild C7 sensory deficit. On the left, he found a combination
of impairments for sensory deficits involving the C5 (three percent), C6 (two percent), and C7
(one percent) nerve roots. However, the DMA excluded all spinal nerve extremity impairment
on the basis that appellant’s cervical spine radiculopathy was not an accepted condition.
Dr. Berman, the DMA, also questioned whether the objective studies and clinical evidence
supported Dr. Weiss’ finding of cervical radiculopathy.
As a preliminary matter, the Board notes that both Dr. Weiss and the DMA concurred
with respect to appellant’s right upper extremity impairment rating for carpal tunnel syndrome
(seven percent) and right elbow lateral epicondylitis (one percent). The two physicians similarly
concurred with regard to appellant’s left upper extremity impairment for carpal tunnel syndrome
(eight percent). On appeal, counsel did not challenge these aspects of the September 22, 2015
schedule award. Counsel also did not specifically challenge the DMA’s finding that appellant
was entitled to an additional one percent right upper extremity impairment for digital stenosing
tenosynovitis (middle/long trigger finger). In his brief on appeal, counsel argued that OWCP
should have accepted Dr. Weiss’ finding of spinal nerve extremity impairment due to sensory
deficits involving the C5 (three percent), C6 (two percent), and C7 (one percent) nerve roots.
According to counsel, OWCP should have found a combined 14 percent permanent left upper
extremity impairment.
The hearing representative correctly acknowledged that preexisting conditions should be
taken into account when determining the full extent of impairment of a scheduled member.31
However, in this instance Dr. Weiss’ left upper extremity rating for cervical nerve root
involvement is not fully supported by the record. He failed to explain how the underlying
findings supported his spinal nerve extremity impairment rating. Counsel noted that Dr. Weiss’
May 15, 2014 report included monofilament testing results that ostensibly support his findings
with respect to left-sided C5, C6, and C7 nerve root sensory deficits. However, Dr. Weiss did
not explain how the reported “diminished sensibility” over the left C5, C6, and C7 dermatomes
represented a moderate sensory deficit at C5 and mild sensory deficits at C6 and C7. He also
reviewed various EMG/NCV results. While he noted there was “positive” evidence of right
cervical radiculopathy at C5-6, Dr. Weiss did not identify any electrodiagnostic evidence of leftsided cervical radiculopathy. Accordingly, the Board finds that the record does not adequately
support Dr. Weiss’ additional six percent rating for spinal nerve extremity impairment. Thus,
appellant has no more than eight percent permanent impairment of the left upper extremity.

30

Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

31

See supra note 27.

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CONCLUSION
The Board finds that appellant failed to establish that she has greater than eight percent
impairment of the left upper extremity, for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 6, 2017
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, JAMES GRIFFITH
STATION, Houston, TX, Employer
__________________________________________

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

Docket No. 09-448
Issued: October 23, 2009

Case Submitted on the Record

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

JURISDICTION
On December 4, 2008 appellant filed a timely appeal from the June 20, 2008 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of its
March 15, 2004 decision to rescind acceptance of her 2002 occupational injury claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to justify rescinding
acceptance of appellant’s December 13, 2002 occupational disease claim; and (2) whether
appellant has met her burden of proof to establish that she sustained a herniated disc injury on or
before November 7, 1994.
FACTUAL HISTORY
On February 20, 1992 appellant, then a 52-year-old rural route carrier, filed an
occupational disease claim alleging that she had degenerative disc disease due to her federal
employment. The Office accepted her claim for lumbar strain and temporary aggravation of

degenerative disc disease. Appellant returned to modified duty on November 23, 1992. On
May 6, 1994 the Office found that her actual earnings in that position fairly and reasonably
represented her wage-earning capacity.1
Appellant stopped work on November 8, 1994 and claimed a recurrence of total
disability. She attributed her disability to her accepted injury because of increasing pain
radiating down the right side of her leg with a burning sensation to her ankle. Appellant noted a
significant increase in back pain.
On November 8, 1994 Dr. Day P. McNeel, Jr., the treating neurosurgeon, found appellant
disabled for work:
“[Appellant] says that she just cannot work at the [employing establishment] any
more. She has to bend over, pick up packages off the ground, there is a lot of
bending, lifting. [Appellant] is having the same pain in the back, all down the
right leg. It is worse than ever. The more [appellant] does, the more it hurts and
it gets worse at work, even with [four] hours. It is simply impossible for her to go
on and I do think that she is permanent[ly] disabled from bending, lifting and
straining the back in any way, whether she has surgery or not and the way she
describes her work in the face of a known herniated disc and lumbar
radiculopathy, I think that she is disabled from the [employing establishment]
work as she describes it.”
The Office denied appellant’s recurrence claim because the medical evidence offered no
rationale to support that her employment injury had worsened to cause total disability.
On January 24, 2002 Dr. Frank M. Yatsu, a professor of neurology, responded to an
Office request for his medical opinion and reasons regarding appellant’s disability and causation.
He stated:
“I have been following [appellant] for approximately eight years since 1995, three
years following her first injury for an on-the-job injury working for the
[employing establishment]. At that time in 1992, as a result of employment
requiring lifting and other physical activity such as bending, she developed low
back pain which was originally treated by Dr. McNe[e]l who subsequently retired.
However, [appellant] again reinjured her back on November 7, 1994, which is the
target date of concern because since that time she had persistent and daily back
pain, which has required narcotics and muscle relaxants and other medication to
help alleviate symptoms but which has not been completely successful. As a
result of continuing pain and muscle spasm she retired in November 1994 because
of the severity of the pain and at that time you will note that she was required to
work four hours per day and was to have answered [tele]phones only but was in
fact required to do lifting and bending and the ergonomics of her desk required
adjustment which her husband helped with but which caused excessive strain on
her back.
1

OWCP File No. xxxxxx460.

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“These include having to reach, lift and bend etc., and because of continued
aggravation of the pain [appellant] could not tolerate the discomfort and therefore
quit at that point.… As a result of her severe low back pain with spasm and
limited movement plus weakness of the right leg, I had previously indicated that
[appellant] was totally disabled since the induced pain prevents her from carrying
out her activities of daily living and would prevent her from any kind of
meaningful work. In addition to total disability for work, her impairment rating
was placed at 32 percent.”
Dr. Yatsu related his findings and diagnosed low back syndrome, pain and muscle spasm
“induced from a regional injury on[-]the[-]job working at the [employing establishment] on
February 7, 1992 and reaggravated by on[-]the[-]job injury at the [employing establishment] on
November 7, 1994.” He added:
“As documented by her inability to work at what was to be a sedentary job for
four hours per day answering the [tele]phone but in fact required lifting, bending
and carrying packages etc., it is clear to me that [appellant] with her striking
neurological findings of low back syndrome is unable to work in a meaningful
way because of the fact that it aggravates the pain syndrome, which at best is not
well controlled with standard muscle relaxants and analgesics as noted above. On
the basis of [appellant’s] now [10]-year history of work-related injury and
persistent symptoms which are dramatically clear, I still believe that [she] is
totally disabled from meaningful work, particularly since she is unable to conduct
her activities of daily living and her impairment rating by the [American Medical
Association, Guides to the Evaluation of Permanent Impairment] standard for
impairment is 32 percent. It is my belief [that appellant] should be compensated
for the injury on the job and I would be willing to testify in this regard.”
On December 13, 2002 appellant filed an occupational disease claim alleging that her
herniated disc was a result of her federal employment. She first became aware of the condition
on November 7, 1994. Appellant noted that she previously filed a recurrence claim but should
have filed an occupational disease claim.
On March 12, 2003 the Office accepted appellant’s claim for displacement of lumbar
intervertebral disc.2 It consolidated her two case records. Appellant claimed compensation for
wage loss beginning November 8, 1994 to the present.
In a decision dated March 15, 2004, the Office rescinded its acceptance of appellant’s
December 13, 2002 lumber disc claim. It stated the basis for its decision: “Your claim was
accepted without the knowledge that you were not working at the time you filed your claim.”
The Office concluded: “The decision of March 13, [sic] 2003 is being rescinded due to the fact
you have not worked since 1994. Therefore, your condition could not have worsened due to
employment factors. This decision hereby denies your occupational disease claim and your
CA[-]7 [form] requesting compensation for the period of November 8, 1994 to present.”
2

OWCP File No. xxxxxx255.

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The Office subsequently reviewed the merits of appellant’s claim on December 9, 2004,
February 27, 2006, February 6, 2007 and June 20, 2008. Each time it denied modification of its
prior decision.
In its February 6, 2007 decision, the Office stated that it had rescinded appellant’s
occupational disease claim because new evidence did not support that she sustained a new
occupational disease in November 1994: “You basically stopped work and reported to your
physician that you could no longer do your limited[-]duty work. There was no reasoned medical
opinion evidence or objective medical evidence to support an occupational disease claim or total
disability for work.”
In its June 20, 2008 decision, the Office found that Dr. Yatsu gave an inconsistent history
of appellant’s work duties when he stated on January 15, 2008: “As I have stated before, I
believe that her on[-]the[-]job injury has left [her] totally disabled so that she is unable to return
to her [employing establishment] work, which involves carrying mail, etc.” It noted that, in her
December 10, 2006 description of her duties, appellant did not list carrying mail.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 The Office may review an
award for or against payment of compensation at any time on its own motion or on application.4
The Board has upheld the Office’s authority to reopen a claim at any time on its own
motion and, where supported by the evidence, to set aside or modify a prior decision and issue a
new decision.5 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can be set aside only in the manner provided
by the compensation statute.6
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provisions, where there is good cause for so doing, such as mistake or fraud. It is well
established that once the Office accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where, as here, the Office later decides
that it erroneously accepted a claim. In establishing that, its prior acceptance was erroneous, the
Office is required to provide a clear explanation of the rationale for rescission.7

3

5 U.S.C. § 8102(a).

4

Id. at § 8128(a).

5

Eli Jacobs, 32 ECAB 1147 (1981).

6

Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).

7

Walter L. Jordan, 57 ECAB 218 (2005).

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ANALYSIS -- ISSUE 1
In its March 15, 2004 decision rescinding its acceptance of appellant’s December 13,
2002 occupational disease claim, the Office clearly stated the basis of its decision: “Your claim
was accepted without the knowledge that you were not working at the time you filed your
claim.” Because appellant had not worked since 1994, the Office concluded that her low back
condition could not have worsened due to employment factors.
This misrepresents the nature of appellant’s December 13, 2002 claim. Appellant did not
claim that her low back condition worsened after she stopped work on November 8, 1994. She
claimed a new injury on or about November 7, 1994 caused by exposure to employment factors
in her modified assignment. Appellant claimed that this new employment injury, diagnosed as a
herniated lumbar disc with radiculopathy, caused total disability for work beginning
November 8, 1994. So the fact that she did not return to work after 1994 is wholly irrelevant to
whether she reinjured her low back in the performance of duty prior to November 8, 1994. An
employment injury occurring prior to November 8, 1994 is not inconsistent with total disability
for work beginning that date.
Because the Office’s March 15, 2004 decision is not well rationalized, the Board finds
that the Office did not meet its burden of proof to justify rescinding its acceptance of appellant’s
December 13, 2002 occupational disease claim.
In its February 6, 2007 merit review of the case, the Office stated that it had rescinded its
acceptance of appellant’s occupational disease claim because new evidence did not support that
she sustained a new occupational disease in November 1994, because there was no reasoned
medical opinion evidence or objective medical evidence to support an occupational injury or
total disability for work. It appears the Office recognized the weakness of its decision after the
fact and attempted to rehabilitate the rescission by supplying more rationale.
The medical evidence of record does support appellant’s December 13, 2002
occupational disease claim. On November 8, 1994 Dr. McNeel, the treating neurosurgeon, cited
specific employment factors, such as bending over, picking up packages off the ground and
lifting, factors that caused appellant’s pain to become worse than ever. In the face of a known
herniated disc and lumbar radiculopathy, he took her off work. On January 24, 2002 Dr. Yatsu,
the neurology professor who took over appellant’s care after Dr. McNeel retired, noted that she
sustained an employment-related low back injury in 1992 but reinjured her back on or about
November 7, 1994 when she was required to lift, bend, reach and carry packages. He also
implicated the ergonomics of her desk, which he stated caused excessive strain on her back.
Dr. Yatsu reported that the continued aggravation of appellant’s poorly controlled pain syndrome
caused her to become totally disabled from any kind of meaningful work. The Office thereafter
accepted appellant’s claim.
The Office incorrectly stated in its February 6, 2007 decision, that there was no evidence
to support appellant’s new occupational disease claim. Different adjudicators may not agree on
whether the medical evidence was sufficient at the time of acceptance to carry appellant’s burden
of proof to establish a herniated disc injury on or about November 7, 1994. The Office’s
February 6, 2007 decision offered no substantive review of the medical evidence of record. With

5

respect to rescission of acceptance the Office should not attempt to second guess the prior
adjudicating official’s assessment of the medical evidence.8
Because the Office did not meet its burden of proof to justify rescinding acceptance of
appellant’s December 13, 2002 occupational disease claim, the Board will reverse the Office’s
June 20, 2008 merit decision. The Board’s disposition of the first issue on appeal renders the
second issue moot.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to rescind acceptance of
appellant’s December 13, 2002 occupational disease claim.
ORDER
IT IS HEREBY ORDERED THAT the June 20, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8

Delphia Y. Jackson, 55 ECAB 373, 377 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 10-2134
Issued: July 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 4, 2010 appellant filed a timely appeal from the May 14, 2010 merit decision
of the Office of Workers’ Compensation Programs denying entitlement to continuation of pay
(COP) and the July 7, 2010 nonmerit decision denying his request for merit review. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant’s employment injury was properly designated as an
occupational disease, thereby precluding entitlement to COP; and (2) whether the Office
properly refused to reopen his case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 3, 2009 appellant, then a 55-year-old maintenance mechanic, filed an
occupational disease claim alleging that he sustained a strained back muscle as a result of
employment activities. He stated: “I work as an equipment mechanic requiring me to bend,
stretch, strain, grunt and groan while performing maintenance on the machines. I had just
completed the majority of that day’s assignments when I began to ache.”
Appellant noted that he first became aware of his condition on October 22, 2009 and first
realized the condition was related to his employment on October 27, 2009. He stopped work on
October 28, 2009 and returned to work on November 3, 2009.
In an accompanying statement, appellant indicated that he strained his back “while
performing my assigned duties on October 26/27, 2009.” His duties, which included vac-n-go,
replacing numerous belts and cleaning large machines, required him to bend often.
Appellant submitted an October 29, 2009 disability slip, bearing an illegible signature
and an undated prescription receipt from Walgreen’s drug store.
Appellant also filed a Form CA-1 for a traumatic injury on November 3, 2009, claiming
that he strained his back on October 27, 2009 at 4:00 a.m. The CA-1 form reflects that he did
not give notice of the clamed injury to his supervisor until November 3, 2009.
On November 12, 2009 the Office informed appellant that he submitted insufficient
evidence to establish his claim and requested a description of the employment-related activities
he believed contributed to his condition, as well as an explanation of how often and for how long
he performed such activities. In addition, it requested that he submit a medical report from a
treating physician, discussing his symptoms, examination results, diagnosis and providing an
opinion regarding the cause of his medical condition.
In a November 2, 2009 injury report, Dr. Michael D’Amico, Board-certified in the field
of family medicine, diagnosed “thoracic strain, resolving.” He noted that appellant had a history
of low back pain and identified October 26, 2009 as the date of injury.
The record contains an October 27, 2009 disability slip from Dr. Gina Buono, Boardcertified in the field of occupational medicine, reflecting that appellant could return to work on
October 28, 2009 in a sedentary position. On November 2, 2009 Dr. D’Amico stated that he
strained his back while at work; the approximate date his condition commenced was October 27,
2009; and he was incapacitated from October 27 through November 2, 2009.
On November 4, 2009 Larry Berg of the employing establishment related appellant’s
report of the claimed injury. On October 27, 2009 appellant allegedly reached over the feeder
section to close a cover and strained his back. Mr. Berg noted that appellant did not report the
claimed strain until November 4, 2009. A separate incident report dated November 4, 2009
reflected that appellant strained his back while reaching over the feeder section of a cancelling
machine.

2

A November 5, 2009 report from Dr. D’Amico reflected that he and Dr. Buono had seen
appellant on November 2 and October 27, 2009 respectively for a work-related back injury. On
November 2, 2009 appellant informed Dr. D’Amico that, after performing his usual job
functions, his mid-back began to hurt during his work shift on October 26, 2009 and gradually
worsened the following day. Dr. D’Amico diagnosed back strain on that date and recommended
restrictions. He stated: “Both physicians believe the injury was caused by work functions based
on the job responsibilities and type of injury.”
On December 30, 2009 Mr. Berg stated that appellant had decided to withdraw his
occupational disease claim so that the Office could develop a claim for COP for his October 27,
2009 injury.
On January 26, 2010 the Office accepted appellant’s claim for “[sprain of the back,
lumbar region], 8472 resolved by November 3, 2009.” It informed him that the claim was
accepted as an occupational disease claim based on Dr. D’Amico’s statement that he “began to
hurt on October 26, 2009” and the fact that he failed to establish a specific event that caused his
diagnosed condition.
By decision dated February 9, 2010, the Office denied appellant’s claim for COP, finding
that he had not alleged a traumatic injury.
On February 27, 2010 appellant requested reconsideration. He stated that he originally
submitted a Form CA-1, together with a physician’s statement. A day or two later, appellant was
directed to submit a Form CA-2 in order to negate the CA-1 form and obtain COP.
On October 27, 2009 appellant told Dr. Buono that he had been working at the employing
establishment for years, changing bits and working on the processing machine. On October 26,
2009 he related that he was kneeling on the machine to stub the belts and had an increase in low
back pain at work after he completed changing belts. Appellant informed Dr. Buono that he
“had a back injury last year.”
By decision dated May 14, 2010, the Office denied modification of its prior decision,
finding that appellant sustained a low back strain due to factors of employment over a period of
more than one work shift.
On May 20, 2009 appellant requested reconsideration, contending that his injury occurred
during one work shift. He stated that his work shift consisted of eight and a half hours (10:00
p.m. to 6:30 a.m.) Appellant’s injury allegedly occurred during his work shift beginning at 10:00
p.m. on Tuesday, October 26, 2009 and ending at 6:30 a.m. on Wednesday, October 27, 2009.
As his pain continued through that morning, he went to Urgent Care and saw Dr. Buono around
3:00 p.m. that afternoon. Appellant contended that when Dr. D’Amico stated that his injury
occurred during his October 26, 2009 work shift, it was the same work shift as that of
October 27, 2009.
Appellant submitted a May 19, 2009 letter from Tour I shift manager, J.A. Frett, who
corroborated appellant’s statement that his 40-hour shift commences at 10:00 p.m. on a Monday
evening and ends at 6:30 a.m. on a Saturday morning. Mr. Frett noted that appellant did not
work on either his Sunday or Monday off-days of October 25 or 26, 2009 and injured himself
3

sometime during his service-day of Tuesday, October 27, 2009. Appellant was absent on his
Wednesday service-day and reported to work on his Thursday service-day of October 29, 2009.
Due to the restrictions by his physician, he was not able to perform his duties and was directed to
stay on sick leave. Appellant returned to full duty on November 3, 2009 with no restrictions.
Appellant submitted copies of Dr. D’Amico’s October 29, 2009 disability slip and
November 5, 2009 letter and Dr. Buono’s October 27, 2009 disability slip.
In a decision dated July 7, 2010, the Office denied appellant’s request for reconsideration
on the grounds that the evidence submitted did not warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 A traumatic injury means a condition of the
body caused by a specific event or incident or a series of events or incidents, within a single
workday or shift.3 Such condition must be caused by external force, including stress or strain,
which is identifiable as to time and place of occurrence and member or function of body.4
For most employees who sustain a traumatic injury, the Act provides that the employer
must continue the employee’s regular pay during any periods of resulting disability, up to a
maximum of 45 calendar days.5 This is called COP. The employer, not the Office, is
responsible for providing COP.6 Unlike wage-loss benefits, COP is subject to taxes and all other
payroll deductions that are made from an employee’s regular income.7 To be eligible for COP, a
person must have a traumatic injury, as defined under 20 C.F.R. § 10.5(ee), which is job related
and the cause of the disability and/or the cause of the lost time due to the need for medical
examination and treatment.8 Additionally, a person must file Form CA-1 within 30 days of the
date of the injury and begin losing time from work due to the traumatic injury within 45 days of
the injury.9 An employer is not required to pay COP when the disability was not caused by a
traumatic injury.10

2

20 C.F.R. § 10.5(q) (2009).

3

Id. at § 10.5(ee).

4

Id.

5

5 U.S.C. § 8118(a), (b) (2006); 20 C.F.R. § 10.200(a).

6

Id. However, the Office has the exclusive authority to determine questions of entitlement and all other issues
relating to COP. Id. at § 10.200(b).
7

Id.

8

Id. at § 10.205(a).

9

Id.

10

Id. at § 10.220(a).

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ANALYSIS -- ISSUE 1
The Board finds that appellant’s employment injury was properly designated as an
occupational disease, thereby precluding entitlement to COP.
In his Form CA-2, appellant noted that he first became aware of his condition on
October 22, 2009 and first realized the condition was related to his employment on
October 27, 2009. His work activities as an equipment mechanic required him to bend, stretch,
strain, grunt and groan while performing maintenance on the machines and noted that he began
to ache after completing the majority of his assignments on that day. Appellant informed
Dr. D’Amico that, after performing his usual job functions, his mid-back began to hurt during his
work shift on October 26, 2009 and gradually worsened the following day. He has described a
condition that was produced by the work environment over a period longer than a single
workday or shift. Therefore, appellant’s injury meets the definition of an occupational illness.11
Subsequent to the filing of his occupational disease claim, appellant filed a Form CA-1,
alleging that he sustained a traumatic injury on October 27, 2009. The evidence of record,
however, does not establish that he sustained a traumatic injury on that date. Appellant’s
presentation of the facts is not supported by the evidence of record and does not establish his
allegation that a specific event occurred which caused an injury on the date in question.12
Moreover, there are inconsistencies in the evidence which cast serious doubt on the validity of
his traumatic injury claim.
Appellant initially reported on his November 3, 2009 CA-1 form that he strained his back
on October 27, 2009 at 4:00 a.m. He provided no detailed account of the incident, as required in
a traumatic injury claim.
Appellant told Dr. D’Amico that he “began to hurt on
October 26, 2009.” The mere fact, however, that his back began to ache on October 26 or 27,
2009 does not establish that his accepted condition was due to employment factors occurring on
that particular day. Appellant subsequently informed his supervisor that on October 27, 2009 he
reached over the feeder section to close a cover and strained his back. He told Dr. Buono that he
was kneeling on a machine to stub the belts and had an increase in low back pain at work after he
completed changing belts. Appellant’s allegations are vague and do not relate with specificity
the circumstances or the exact and immediate consequences of the injury (e.g., whether he fell,
whether he was unable to continue working and whether he cried out). Moreover, the allegations
are inconsistent, both as to the specific events claimed to have occurred on October 27, 2009 and
as to the true nature of the claim.
Appellant’s subsequent course of action also fails to support his claim. Most notably, the
record reflects that he attempted to withdraw his occupational disease claim for the purpose of
obtaining COP through his traumatic injury claim. The Board notes that the mere withdrawal of
his occupational disease claim does not, in and of itself, change the nature of the claim. The
issue for determination is whether appellant’s condition was produced by the work environment

11

20 C.F.R. § 10.5(q) (2009).

12

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

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over a period longer than a single workday or shift13 or whether it is a condition caused by a
specific event or incident or a series of events or incidents, within a single workday or shift.14
Appellant also provided no statements to corroborate his claim from anyone who either
witnessed or to whom he immediately reported, the incident. In fact, the record reflects that he
did not report the incident to his supervisor until at least November 3, 2009. Thus, appellant did
not submit sufficient evidence to establish that he actually experienced an employment incident
at the time, place and in the manner alleged or that the alleged incident caused his condition.
The Board finds that the Office properly determined that appellant’s claim was more
appropriately classified as an occupational disease rather than a traumatic injury. Therefore, as
appellant’s claimed disability was not caused by a traumatic injury, he is not entitled to COP.15
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,16 the Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.17 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.18 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.19 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.20
ANALYSIS -- ISSUE 2
The Office found that appellant’s employment injury was properly characterized as an
occupational disease and as such, he was not entitled to COP. Appellant requested
reconsideration of the May 14, 2010 decision.

13

20 C.F.R. § 10.5(q) (2009).

14

Id. at § 10.5(ee).

15

Id. at § 10.220(a).

16

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at anytime on her own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

20

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring the Office to reopen the case for review of the merits of the
claim. In his May 20, 2010 application for reconsideration, appellant did not show that the
Office erroneously applied or interpreted a specific point of law. He did not identify a specific
point of law or show that it was erroneously applied or interpreted. Appellant did not advance a
new and relevant legal argument. His argument was that his injury occurred during one work
shift. A claimant may be entitled to a merit review by submitting new and relevant evidence.
The Board finds that appellant did submit new and relevant evidence in this case.
Appellant submitted a May 19, 2009 letter from Tour I shift manager, Mr. Frett, who
corroborated appellant’s statement that his 40-hour shift commenced at 10:00 p.m. on a Monday
evening and ends at 6:30 a.m. on a Saturday morning. Mr. Frett noted that appellant did not
work on either his Sunday or Monday off-days of October 25 or 26, 2009 and injured himself
sometime during his service-day of Tuesday, October 27, 2009. This letter constitutes new and
relevant evidence not previously considered by the Office. The requirement for reopening a
claim for merit review does not include the requirement that a claimant shall submit all evidence
necessary to discharge his burden of proof nor does it need to be dispositive. The claimant need
only submit evidence that is relevant and pertinent and not previously considered. As Mr. Frett’s
letter is relevant to whether appellant sustained an injury on October 27, 2010 and has not been
previously considered, the Office should have reviewed appellant’s case on the merits.
The Board finds that appellant’s request for reconsideration satisfies the third standard for
obtaining merit review.21 Therefore, the case will be remanded to the Office for a merit
review.22
CONCLUSION
The Board finds that the Office properly characterized appellant’s employment injury as
an occupational disease. Consequently, appellant is not entitled to COP. The Board further finds
that the Office improperly refused to reopen his case for further review of the merits pursuant to
5 U.S.C. § 8128(a).

21

20 C.F.R. § 10.606(b)(2).

22

Appellant also submitted evidence previously of record, including copies of Dr. D’Amico’s October 29, 2009
disability slip and November 5, 2009 letter and Dr. Buono’s October 27, 2009 disability slip. The Board has long
held that the submission of evidence which repeats or duplicates evidence already in the record does not constitute a
basis for reopening a case. D.K., 59 ECAB 141 (2007).

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ORDER
IT IS HEREBY ORDERED THAT and May 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed. It is further ordered that its July 7, 2010 decision
is set aside and remanded for action consistent with this decision.
Issued: July 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wisconsin Rapids, WI, Employer
__________________________________________

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

Docket No. 08-225
Issued: May 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 30, 2007 appellant filed a timely appeal from an October 17, 2007 decision
of the Office of Workers’ Compensation Programs, adjudicating her claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a one percent impairment of her left lower
extremity.
FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated August 17, 2007, the Board
remanded the case for further development of the medical evidence. The facts of this case, as set
forth in the prior decision, are herein incorporated by reference.
1

See Docket No. 07-1060 (issued August 17, 2007).

On March 12, 2003 appellant, then a 46-year-old letter carrier, sustained a work-related
left foot strain when she slipped on ice and her foot “came down hard.” The Office subsequently
accepted an April 1, 2004 recurrence of disability. On December 22, 2004 appellant filed a
claim for a schedule award. Dr. Douglas P. Galuk found that appellant had a three percent
impairment of her left lower extremity. Dr. Benjamin P. Crane, an Office medical adviser, found
that appellant had a one percent left lower extremity impairment for sensory deficit. By decision
dated August 14, 2006, the Office granted appellant a schedule award for 2.88 weeks from
October 1 to 21, 2004 for a one percent impairment of her left lower extremity, based on
Dr. Crane’s report. On January 5, 2007 the Office affirmed the August 14, 2006 decision.
Following remand of the case by the Board on August 17, 2007, the Office found a
conflict in the medical evidence between Dr. Galuk and Dr. Crane. It referred appellant, together
with a statement of accepted facts, a list of questions and the case record, to Dr. Stephen E.
Barron, a Board-certified orthopedic surgeon.
In a report dated October 11, 2007, Dr. Barron reviewed the medical history and provided
findings on physical examination. He indicated that he was asked to provide an opinion
regarding the impact of “an alleged March 12, 2003 work-related injury.” Dr. Barron stated:
“On examination, [appellant] is 5 feet 3 inches and weighs 130 pounds. She
walks without a limp. [Appellant] walks on her heels and toes well. There is
mild flattening of both arches. I performed an active range of motion of her left
foot. There is 25 degrees of dorsiflexion, 35 degrees of plantar flexion and 30
degrees of inversion and eversion. There is excellent subtalar motion. Sensory
examination in both lower extremities is normal. All the various motor groups in
the lower extremities were tested, and she has excellent strength. Reflexes in the
knee and ankles are +2/+2 and equal bilaterally. There are no areas of acute
tenderness. There is no swelling. There is no evidence of spasm.”
***
“In my opinion, [appellant] reached maximum medical improvement as of
October 1, 2004.
“[Appellant] has no objective findings on her examination. She has a full active
range of motion of her left foot. [Appellant] has a negative neurologic
examination. There is no swelling. There is no spasm. In my opinion, she has no
permanent impairment.
“[Appellant’s] subjective complaints at this time are pain three to four days a
week in her left foot. There is occasional swelling. Her symptoms are aggravated
by twisting motion and too much walking, as well as crawling.”
***
“[Appellant] has no permanent disability, based on the A.M.A., [Guides, 5th ed.]
without objective findings.”

2

By decision dated October 17, 2007, the Office found that appellant had no more than a
one percent impairment of her left lower extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (the A.M.A.,
Guides).3
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.4
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.5 The diagnosis based method may
be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.6 The functional method is used for conditions when anatomic changes are
difficult to categorize, or when functional implications have been documented, and includes
range of motion, gait derangement and muscle strength.7 The evaluating physician must
determine which method best describes the impairment of a specific individual based on patient
history and physical examination.8 When uncertain about which method to use, the evaluator
should calculate the impairment using different alternatives and choose the method or
combination of methods that gives the most clinically accurate impairment rating.9 If more than
one method can be used, the method that provides the higher impairment rating should be
adopted.10
Section 8123(a) of the Act provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001).
4

A.M.A., Guides 525.

5

Id.

6

Id.

7

Id. at 525, Table 17-1.

8

Id. at 548, 555.

9

Id. at 526.

10

Id. at 527, 555.

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shall appoint a third physician who shall make an examination.11 Where a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on a proper factual and medical background, must be
given special weight.12
ANALYSIS
Due to the conflict in the medical opinion evidence between Dr. Galuk and Dr. Crane as
to the permanent impairment of appellant’s left lower extremity, the Office properly referred
appellant to Dr. Barron for an independent medical examination.
The Board finds that Dr. Barron’s evaluation of appellant’s left foot impairment is not
sufficient to resolve the conflict. Dr. Barron indicated that he was asked to provide an opinion
regarding the impact of an “alleged” March 12, 2003 work-related injury. However, appellant
has an accepted March 12, 2003 injury, a left foot strain.13 In this regard, Dr. Barron’s report is
not based on a complete and accurate factual and medical background. He did not provide all the
range of motion measurements required in the A.M.A., Guides for determination of foot
impairment. Dr. Barron provided measurements for dorsiflexion, plantar flexion and inversion
and eversion. However, he did not provide measurements for varus and valgus positions,14 or
range of motion measurements for the toes.15 Additionally, the record shows that the file was not
routed to an Office medical adviser following Dr. Barron’s impairment evaluation as required by
Office procedures.16
There is no medical evidence of record with a complete physical description of
appellant’s left lower extremity condition and a thorough discussion of her impairment with
reference to applicable tables in the fifth edition of the A.M.A., Guides. Although the claimant
has the burden of establishing entitlement to compensation, the Office shares responsibility in the
development of the evidence.17 On remand, the Office should prepare an amended statement of
accepted facts to include the accepted condition. The Office should refer appellant for a
reexamination by Dr. Barron as he needs to make additional findings on physical examination.
11

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
12

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

13

The Board notes that the statement of accepted facts does not state that a left foot strain is an accepted injury in
this case.
14

See A.M.A., Guides 537, Table 17-13.

15

See id. at 537, Table 17-14; see also Figure 17-6 at page 536.

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures provide that, after all necessary medical evidence has been
obtained, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale for the
percentage of impairment, especially when there is more than one evaluation of the impairment present).
17

Willie James Clark, 39 ECAB 1311 (1988).

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The Office should ask Dr. Barron to consider whether appellant has impairment due to pain or
sensory loss in light of her statement that she experienced pain three to four days a week with
occasional swelling. Dr. Barron’s report should refer to the appropriate tables or figures in the
fifth edition of the A.M.A., Guides. After the Office has obtained a thorough medical report
regarding appellant’s left foot impairment, the Office should provide the file to an Office
medical adviser for a final determination of her entitlement to a schedule award for her left lower
extremity.
CONCLUSION
The Board finds that this case is not in posture for a decision due to the unresolved
conflict in the medical opinion evidence. On remand, the Office should prepare an amended
statement of accepted facts. The Office should refer appellant for a reexamination by
Dr. Barron. After such further development as it deems necessary, the Office shall issue an
appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2007 is set aside and the case is remanded for further
action consistent with this decision.
Issued: May 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 14-1892
Issued: February 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 28, 2014 appellant, through counsel, filed a timely appeal from a June 23,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has established more than eight percent right upper
extremity permanent impairment, for which he received a schedule award.
On appeal appellant’s attorney asserts that a conflict in medical evidence has been
created between appellant’s physician and OWCP referral physician.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 28, 2009 appellant, then a 54-year-old mail handler/equipment operator,
filed an occupational disease claim alleging that employment duties caused a trigger finger and
acute pain in thumbs and index fingers of both hands.2 On November 3, 2009 OWCP accepted
trigger finger, index, acquired, right. On December 16, 2009 appellant underwent surgical
release of the A1 pulley of the right index finger.
On July 6, 2011 appellant filed a schedule award claim.3 He submitted a September 14,
2010 report, revised on May 4, 2011, in which Dr. Nicholas Diamond, an osteopath, advised that
maximum medical improvement was reached on September 13, 2010. Dr. Diamond provided
upper extremity physical examination findings. He diagnosed cumulative and repetitive trauma
disorder; bilateral trigger thumbs; status post bilateral trigger thumb releases with residual
osteoarthritis of the bilateral carpometacarpal, metacarpophalangeal (MCP), and interphalangeal
(IP) joints; right index trigger finger; and status post right index trigger finger release with
residual scar tissue and numbness. Dr. Diamond indicated that he evaluated appellant’s
impairment in accordance with Table 15-31 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).4
He advised that right index finger flexion range of motion of the MCP joint was 50 for a 19
percent digit impairment; right index finger flexion of the proximal interphalangeal (PIP) joint
was 90 for a 6 percent digit impairment, and distal interphalangeal (DIP) joint flexion was 15 for
a 25 percent impairment. Dr. Diamond advised that the combined index finger impairment was
43 percent or 9 percent of the hand and 8 percent of the right upper extremity.
On October 17, 2011 Dr. Arnold T. Berman, Board-certified in orthopedic surgery and an
OWCP medical adviser, reviewed the record, including Dr. Diamond’s report. He concurred
with Dr. Diamond that appellant had an eight percent right upper extremity impairment. In
August 2012 OWCP asked Dr. Berman to refer to his previous report and advise whether the
eight percent impairment should be reduced by the three percent previously awarded. In an
August 30, 2012 response, an OWCP medical adviser indicated that the eight percent impairment
should be reduced by the three percent previously given, which would yield a five percent right
upper extremity impairment.
On October 12, 2012 appellant was granted a schedule award for an eight percent
impairment of the right upper extremity, less three percent previously paid.5 The award was for
15.6 weeks of compensation, to run from September 14, 2010 to January 1, 2011.

2

The record indicates that appellant had a previous claim, adjudicated by OWCP under file number xxxxxx116,
accepted for bilateral trigger thumbs with surgical intervention on May 13, 1992. Under that claim he was granted a
schedule award for a three percent hand impairment on the right and three percent on the left, for 14.64 total weeks
of compensation, or 7.32 weeks for each hand. The instant case was adjudicated under file number xxxxxx212.
3

Appellant had relocated to Florida.

4

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

5

Supra note 2.

2

Appellant, through his attorney, timely requested a hearing that was held on
January 28, 2013. He did not appear at the hearing. Counsel noted that in his May 4, 2011
revision, Dr. Diamond found an 11 percent right upper extremity impairment. He argued that the
schedule award decision was also in error, because the 1992 schedule award was for three
percent hand impairment, not an upper extremity impairment, and that the compensation
schedule was different for the hand and arm.
On May 1, 2013 an OWCP hearing representative remanded the case to OWCP. The
hearing representative noted that subsequent to the hearing appellant submitted Dr. Diamond’s
revised report. On remand OWCP was to forward Dr. Diamond’s revised report and explain
whether appellant’s impairment extended into his arm and provide an updated impairment rating,
after which OWCP was to issue a de novo decision.
The revised medical report from Dr. Diamond, also dated May 4, 2011, contained an
additional page that was not submitted in June 2011. The newly submitted report indicated that
under Table 15-21 appellant had a class 1 mild sensory deficit of the right palmar digital of the
thumb of one percent. After applying grade modifiers and the net adjustment formula,
Dr. Diamond advised that appellant had no thumb impairment and a final right upper extremity
impairment of 11 percent.
By report dated August 21, 2013, Dr. Berman, an OWCP medical adviser, reviewed the
record and the newly submitted report from Dr. Diamond. He maintained that Dr. Diamond’s
findings were not consistent with appellant’s clinical picture and could not be accepted as valid.
Dr. Berman recommended that appellant be referred for a second opinion evaluation.
In September 2013 OWCP referred appellant to Dr. William Dinenberg, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In an October 7, 2013 report,
Dr. Dinenberg noted his review of the statement of accepted facts, medical record, and
appellant’s complaints of numbness or weakness in grip and arm curl and numbness in the right
forearm. He provided physical examination findings, noting no atrophy and negative Phalen’s,
Tinel’s, and carpal tunnel compression tests bilaterally, and tenderness over the A1 pulley.
Range of motion of the right index finger yielded 0 degrees of extension to 70 degrees of flexion
of the DIP joint; 0 degrees to 90 degrees of the PIP joint; and extension from +20 degrees to 90
degrees of flexion of the MCP joint. Dr. Dinenberg diagnosed status post work-related bilateral
trigger thumbs now status post trigger thumb release times two and right index finger trigger
digit now status post trigger digit release. He advised that the right hand impairment did not
extend into appellant’s right arm. Dr. Dinenberg indicated that, in accordance with Table 15-2 of
the A.M.A., Guides, Digit Regional Grid Impairments, for a diagnosis of digital stenosing
tenosynovitis, appellant had a class 1 impairment. He found grade modifiers of 2 for functional
history and physical examination which resulted in +2 for a grade E impairment of eight percent
of the index finger. Dr. Dinenberg found that a digital impairment of eight percent was
equivalent to a two percent hand impairment or a one percent upper extremity impairment. He
indicated that the three percent hand impairment previously awarded for the right thumb would
be added to the two percent right index finger hand impairment, to yield a total five percent hand
impairment which was equal to a five percent upper extremity impairment.

3

On November 12, 2013 Dr. Berman reviewed Dr. Dinenberg’s report and agreed with his
conclusion. He indicated that appellant was not entitled to a schedule award greater than the
eight percent right upper extremity impairment previously awarded.
By decision dated November 25, 2013, OWCP found that appellant was not entitled to an
additional schedule award. Appellant, through his attorney, timely requested a hearing, that was
held on April 14, 2014. At the hearing, not attended by appellant, the attorney reiterated
previous arguments and asserted that a conflict in medical evidence had been created between
Drs. Diamond and Dinenberg. In September 9, 2014 correspondence, appellant indicated that he
continued to have pain, weakness, and numbness in both thumbs and in his right hand and arm.
By decision dated June 23, 2014, an OWCP hearing representative affirmed the November 25,
2013 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued
after May 1, 2009, the sixth edition is used to calculate schedule awards.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the Class of Diagnosis (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).12 The sixth edition of the A.M.A., Guides also provides that, under certain
circumstances, range of motion may be selected as an alternative approach in rating impairment.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at 10.404(a).

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

A.M.A., Guides, supra note 4 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
11

Id. at 385-419.

12

Id. at 411.

4

An impairment rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.14
ANALYSIS
The Board finds that the weight of the medical evidence establishes that appellant has no
more than a five percent impairment of his right upper extremity. The Board finds that
Dr. Diamond’s revised report dated May 4, 2011, submitted on February 5, 2013, is of
diminished probative value because it was based on a physical examination completed on
September 14, 2010 and not on new physical examination findings. The September 14, 2010
physical examination findings constitute stale medical evidence and cannot create a conflict with
Dr. Dinenberg, whose physical examination findings are more recent by three years.15
OWCP accepted that appellant sustained right trigger finger, index, acquired, under this
claim, adjudicated under file number xxxxxx212 and bilateral trigger thumbs, adjudicated under
claim number xxxxxx116. Under claim number xxxxxx116, he was granted a schedule award
for three percent hand impairment on the right and a three percent impairment on the left, which
yielded 7.32 weeks compensation for each hand.16 On February 6, 2014 appellant was granted a
schedule award for an additional five percent impairment of the right upper extremity under
claim number xxxxxx212, for an additional 15.6 weeks of compensation.
Section 15.2 of the A.M.A., Guides provide that diagnosis-based impairment is the
primary method of evaluation for the upper extremities.17 Table 15-2, Digit Regional Grid, is the
appropriate table for use in finger impairments.18 Dr. Dinenberg properly utilized Table 15-2 in
his analysis.
In his October 7, 2013 report, Dr. Dinenberg reported physical examination findings. He
diagnosed status post work-related bilateral trigger thumbs now status post trigger thumb release
times two and right index finger trigger digit now status post trigger digit release. Dr. Dinenberg
advised that the right hand impairment did not extend into appellant’s right arm and indicated
13

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.
14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
15

See W.M., Docket No. 12-773 (issued March 29, 2013).

16

Supra note 2.

17

A.M.A., Guides, supra note 4 at 387-90.

18

Id. at 391-94.

5

that, in accordance with Table 15-2, for a diagnosis of digital stenosing tenosynovitis,19 appellant
had a class 1 impairment. He found grade modifiers of 2 for functional history and physical
examination which resulted in +2 under the net adjustment formula, for a grade E impairment of
eight percent of right the index finger. As found in Table 15-12, Impairment Values Calculated
from Upper Extremity Impairment,20 Dr. Dinenberg determined that a digital impairment of eight
percent was equivalent to a two percent hand impairment or a one percent upper extremity
impairment. He indicated that the three percent hand impairment previously awarded for the
right thumb would be added to the two percent right index finger hand impairment, to yield a
total five percent hand impairment which was equal to a five percent upper extremity impairment
under Table 15-11, Impairment Values Calculated from Upper Extremity Impairment.21
The Board finds that Dr. Dinenberg’s opinion that appellant has five percent right upper
extremity impairment at the time of his examination is sufficiently well rationalized and
constitutes the weight of medical opinion in regard to appellant’s right upper extremity
impairment. Dr. Berman, an OWCP medical adviser, agreed with Dr. Dinenberg’s conclusion
that appellant had a five percent right upper extremity impairment.
Lastly, the Board notes that it is irrelevant whether the 1992 schedule award was for the
hand or upper extremity (arm). What is clear is that appellant received schedule awards for a
total impairment of 22.92 weeks of compensation, 7.32 weeks in claim number xxxxxx116 for
right trigger thumb, and 15.6 weeks under claim number xxxxxx212 claim for right trigger
finger. Based on Dr. Dinenberg’s conclusion, appellant is entitled to a five percent right upper
extremity impairment, or 15.6 weeks compensation, which is less than the 22.92 weeks
previously awarded.22 Appellant therefore did not establish additional impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish more than eight percent permanent
impairment of the right upper extremity.

19

Section 15.2a of the A.M.A., Guides provide that in determining diagnosis-based upper extremity impairment,
the first step is to choose the diagnosis that is most applicable for the region begin assessed. If more than one
diagnosis can be use, the highest causally related impairment rating should be used. Typically one diagnosis will
adequately characterize the impairment and its impact on activities of daily living. Id. at 389.
20

Id. at 421.

21

Id. at 420.

22

Section 8107 (c) of FECA indicates that 100 percent disability of the arm yields 312 weeks compensation; 100
percent disability of the hand yields 244 weeks of compensation. 5 U.S.C. § 8107(c).

6

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-52
Issued: July 2, 2010

Case Submitted on the Record

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

JURISDICTION
On October 7, 2009 appellant filed a timely appeal from an April 9, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs. As more than 180 days have passed
since the last merit decision in this case, dated December 30, 2008, and the filing of this appeal,
the Board lacks jurisdiction over the merits of appellant’s claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 23, 2008 appellant, a 55-year-old clerk, filed a traumatic injury claim
(Form CA-1) for a head injury she sustained on September 17, 2008, because of a faulty shelf.

1

For decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of Office
decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R. § 501.3(e).

Appellant submitted evidence supporting her claim. She submitted a September 23, 2008
computerized tomography scan report, which stated an impression of “normal exam[ination],” a
September 29, 2008 return to work certificate from Dr. Karla L. Houston-Gray, an internist, a
November 5, 2008 report from Dr. Robert L. Satoke, a Board-certified neurologist, and a
December 5, 2008 narrative report from Dr. Houston-Gray, who diagnosed headache, which she
opined developed after a “150[-]pound shelf fell on [appellant].” Dr. Houston-Gray also stated:
“[Appellant] was later seen by neurology [sic] who felt that her headaches were secondary to
head injury [sic] and made some medication suggestions.”
By decision dated December 30, 2008, the Office denied the claim because, although it
accepted that the identified employment incident occurred as alleged, appellant had not
established that this incident caused a medically-diagnosed injury.
On March 17, 2009 appellant requested reconsideration.
Appellant submitted another copy of Dr. Houston-Gray’s December 5, 2008 note.
By decision dated April 9, 2009, the Office denied the request, without conducting a
merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
Appellant’s reconsideration request did not demonstrate that the Office erroneously
applied or interpreted a specific point of law, nor did it advance a relevant legal argument not
previously considered by the Office. Consequently, appellant is not entitled to merit review
under the first two enumerated grounds under 20 C.F.R. § 10.606(b)(2).

2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

2

Concerning the third enumerated ground, appellant submitted an additional copy of
Dr. Houston-Gray’s December 5, 2008 note. This evidence was previously of record and
considered by the Office in rending its December 30, 2008 decision and, therefore, provides no
grounds for reopening a case for merit review.6
On appeal appellant submitted additional evidence. The Board’s jurisdiction however is
limited to the evidence that was before the Office at the time of its last decision. The Board is
precluded from considering new evidence on appeal. Appellant may submit this evidence, along
with a request for reconsideration, to the Office. 20 C.F.R. § 501.2(c)(1).
Because appellant has not satisfied any of the above-mentioned criteria, the Board finds
that the Office properly refused to reopen her case for further review of the merits of her claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

James W. Scott, 55 ECAB 606 (2004).

3