United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, NEW DORP POST
OFFICE, Staten Island, NY, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0784
Issued: September 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 27, 2019 appellant, through counsel, filed a timely appeal from a January 22,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.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).
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
The Board notes that counsel did not appeal from the December 17, 2018 OWCP decision, which denied
expansion of the acceptance of appellant’s claim to include additional right shoulder and arm conditions as causally
related to the accepted June 9, 2017 employment injury. Therefore, the Board has not exercised jurisdiction over that
decision. See 20 C.F.R. § 501.3(c)(4).
3
The Board notes that counsel submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on
appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first
time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $5,645.29 for the period July 25 through
November 10, 2017, for which she was without fault; and (2) whether OWCP properly denied
waiver of recovery of the overpayment.
FACTUAL HISTORY
On June 9, 2017 appellant, then a 52-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) for a right shoulder and arm injury that she allegedly sustained on that date while in
the performance of duty. She claimed that she impacted her right shoulder and arm on the interior
of the mail truck during a motor vehicle accident. Appellant stopped work on that date and
received continuation of pay beginning June 10, 2017. On the reverse side of the claim form, the
employing establishment noted that appellant worked part time for four hours per day, five days
per week.4
On July 25, 2017 OWCP accepted appellant’s claim for right shoulder sprain. Appellant
received wage-loss compensation benefits for temporary total disability beginning July 25, 2017
based on a weekly pay rate of $1,151.13 and working 40 hours per week.
In a letter dated January 11, 2018, OWCP requested additional information from the
employing establishment regarding appellant’s gross earnings for one year prior to June 9, 2017.
It also requested that the employing establishment confirm the kind of appointment that she had
and whether she worked full time, part time, or intermittently.
In a March 19, 2018 telephone memorandum (Form CA-110) note, appellant informed
OWCP that from April 2016 to June 9, 2017 she worked four hours per day.
On March 26, 2018 the employing establishment responded to the January 11, 2018 letter.
It indicated that appellant’s gross pay for the year immediately prior to June 9, 2017 was
$34,258.00 and her base weekly pay rate was $658.81. The employing establishment reached this
amount by dividing $34,258.00 by 52 to equal $658.81. It noted that appellant worked less than
eight hours per day prior to the June 9, 2017 employment injury due to an unrelated condition.
The employing establishment explained that although appellant was employed as a full-time letter
carrier, she had not worked her full-time job for the last year.
On March 30, 2018 OWCP adjusted appellant’s wage-loss compensation benefits
beginning November 11, 2017 based on a weekly pay rate of $658.81 for working 20 hours per
week.
On June 11, 2018 an overpayment was identified in appellant’s case because she received
wage-loss compensation benefits in the amount of $12,129.66 for the period July 25 to

4

The record reflects that at the time of the injury, appellant was working four hours per day due to a previous knee
injury.

2

November 10, 2017 when she should have received $6,484.37. OWCP subtracted $6,484.37 from
$12,129.66 for a total overpayment of $5,645.29.5
In November 2018 OWCP expanded acceptance of the claim to include temporary
aggravation of right shoulder adhesive capsulitis.
On December 11, 2018 appellant returned to part-time, limited-duty work for four hours
per day.
In a December 19, 2018 letter, A.W., an injury compensation specialist for the employing
establishment, indicated that at the time of the June 9, 2017 employment injury appellant had been
working four hours per day. She related that from July 25 through November 10, 2017 appellant
was paid wage-loss compensation for 40 hours per week. A.W. requested that OWCP review the
file and declare an overpayment of compensation for the period July 25 to November 10, 2017.
On December 20, 2018 OWCP advised appellant of its preliminary determination that she
had received an overpayment of wage-loss compensation in the amount of $5,645.29 because
compensation was paid at an inaccurate pay rate for the period July 25 to November 10, 2017. It
calculated the overpayment by subtracting the total amount it should have paid her using the proper
pay rate from the date of injury from the amount it paid her using the incorrect pay rate. OWCP
found that for the period July 25 to November 10, 2017, it paid her $12,129.66 based on working
40 hours per week, when it should have paid her $6,484.37 based on working 20 hours per week,
which resulted in the creation of an overpayment of compensation in the amount of $5,645.29. It
further notified appellant of its preliminary determination that she was without fault in the creation
of the overpayment of compensation. OWCP requested that she complete an enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents. Additionally, it notified appellant that, within 30 days of the date of the letter, she
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
OWCP did not receive a completed Form OWCP-20 or additional documents regarding
appellant’s alleged overpayment.
By decision dated January 22, 2019, OWCP finalized the preliminary determination that
appellant received an overpayment of compensation in the amount of $5,645.29 for the period
July 25 through November 10, 2017 because she was paid at an incorrect pay rate. The claims
examiner further found that appellant was without fault in the creation of the overpayment, but
denied waiver of recovery of the overpayment because she had not submitted evidence in response
to the December 20, 2018 preliminary determination to support that the overpayment should be
waived.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
5

OWCP provided payment documents supporting that appellant received $12,129.66 for the period July 25 to
November 10, 2017. It also provided calculations showing that appellant was only entitled to receive $6,484.37 for
this period based on the proper weekly pay rate of $658.81.

3

performance of duty.6 Pay rate for compensation purposes is defined in section 8101(4) as the
monthly pay at the time of injury, the time disability begins, or the time disability recurs, if the
recurrence is more than six months after returning to full-time work, whichever is greater.7
Once the proper time period is determined, section 8114(d) provides a specific
methodology for determining pay rate: (1) if the employee worked in the employment in which
he was employed at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an annual rate of pay -(a) was fixed, the average annual earnings are the annual rate of pay.”8
OWCP’s Federal (FECA) Procedure Manual further provides that the claims examiner
should determine the basis of payment under 5 U.S.C. § 8114 and whether the claimant is a fulltime, part-time, temporary, seasonal, casual, etc. worker.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,645.29 for the period July 25 through November 10, 2017,
for which she was without fault.
Beginning July 25, 2017, OWCP paid appellant compensation for total disability using the
weekly pay rate of $1,151.13. When appellant’s June 9, 2017 employment injury occurred,
however, she was only working four hours per day, five days per week. The employing
establishment indicated that the correct date-of-injury weekly pay rate should have been $658.81
because appellant worked for 20 hours per week.10 As appellant received compensation based on
the incorrect date-of-injury weekly pay rate for the period July 25 through November 10, 2017,
she received an overpayment of compensation.11
The Board further notes that the record contains evidence which shows that appellant
received $12,129.66 in compensation for the period July 25 to November 10, 2017 when she was
only entitled to receive $6,484.37. Therefore, OWCP properly determined that she received an
overpayment of compensation in the amount of $5,645.29.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
6

5 U.S.C. § 8102(a).

7

Id. at § 8101(4).

8

Id. at § 8114(d)(1)(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.2(a) (March 2011).

10

OWCP noted that $34,258.00 divided by 52 weeks equals $658.81.

11

See N.C., Docket No. 18-1070 (issued January 9, 2019); C.Y., Docket No. 18-0263 (issued September 14, 2018).

12

See P.J., Docket No. 18-0248 (issued August 14, 2018).

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recovery would defeat the purpose of FECA or would be against equity and good conscience.13
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.14 If OWCP finds a claimant to be
without fault in the matter of an overpayment, then, in accordance with section 8129(b), OWCP
may only recover the overpayment if it determined that recovery of the overpayment would neither
defeat the purpose of FECA nor be against equity and good conscience.
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.15 Additionally recovery of an
overpayment is considered to be against equity and good conscience when any individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when any individual, in reliance on such payment or on notice that such payments would
be made, gives up a valuable right or changes his or her position for the worse.16
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the repayment
schedule, if necessary.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $5,645.29
overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.18 Appellant,
however, had the responsibility to provide financial information to OWCP,19 and did not do so.
In its preliminary determination dated December 20, 2018, OWCP clearly explained the
importance of providing the completed overpayment recovery questionnaire (Form OWCP-20)
13

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437.

14

See Robert Atchison, 41 ECAB 83, 87 (1989).

15

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).
16

Id. at § 10.437(a)(b).

17

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

18

Supra note 11.

19

Supra note 15.

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and financial information. It advised appellant that it would deny waiver of recovery if she failed
to furnish the requested financial information within 30 days. Appellant did not submit a
completed overpayment recovery questionnaire or otherwise submit financial information
supporting her income and expenses within the defined period. As a result, OWCP did not have
the necessary financial information to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.20
Consequently, as appellant did not submit the financial information required under section
10.438 of OWCP regulations, which was necessary to determine her eligibility for waiver, OWCP
properly denied waiver of recovery of the overpayment.21
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$5,645.29 for the period July 25 through November 10, 2017, for which she was without fault.
The Board further finds that OWCP did not abuse its discretion by refusing to waive recovery of
the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 19, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

See S.M., Docket No. 17-1802 (issued August 20, 2018).

21

Id.

6


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

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

Docket No. 12-57
Issued: July 10, 2012

Case Submitted on the Record

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

JURISDICTION
On October 5, 2011 appellant filed a timely appeal from May 3 and September 22, 2011
merit decisions of the Office of Workers’ Compensation Programs (OWCP) and a May 19, 2010
nonmerit decision denying her request for reconsideration. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a recurrence of disability as of December 21, 2010 that was causally related to her
accepted injury; and (2) whether OWCP properly denied merit review of its May 19, 2010
decision.
On appeal, appellant alleges that the employing establishment failed to provide her with
work within her restrictions from November 30, 2010 until June 3, 2011.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a February 3, 2012 decision, the
Board affirmed the December 20, 2010 decision denying appellant’s claim for a recurrence of
total disability for the period June 28 through December 20, 2010.2 The facts and law contained
in that decision are incorporated herein by reference. The relevant facts are delineated below.
OWCP accepted appellant’s April 30, 2002 occupational disease claim for left shoulder
tendinitis and left cubital tunnel syndrome.3 Appellant returned to modified duty on
August 20, 2007. By decision dated March 9, 2010, OWCP accepted her recurrence claim for
the period October 22, 2008 through March 7, 2010.
By decision dated May 19, 2010, OWCP denied appellant’s recurrence claim for the
period March 27 through June 27, 2010 on the grounds that the record did not contain medical
evidence establishing that she was disabled during the claimed period.
Appellant submitted an October 29, 2010 report from Dr. Tariq M. Awan, a
Board-certified family practitioner, who indicated that she could perform desk work, provided
that she was not required to do any repetitive or overhead work.
By decision dated December 20, 2010, OWCP denied appellant’s claim for compensation
for the period June 28 through December 20, 2010 on the grounds that the medical evidence of
record failed to establish that she was disabled for work during that period due to the accepted
work injury. By decision dated February 3, 2012, the Board affirmed the December 20, 2010
decision denying his recurrence claim.
In a December 4, 2010 note, Dr. Awan diagnosed lower back pain, left shoulder tendinitis
and left cubital tunnel syndrome. He indicated that appellant was disabled from work from
March 30 through December 3, 2010. In a separate note dated December 4, 2010, Dr. Awan
opined that she was able to return to work on December 4, 2010 with restrictions including no
overhead, repetitive or overhead work and no lifting above the shoulder.
In a narrative report dated December 4, 2010, Dr. Awan diagnosed lower back pain, left
shoulder rotator cuff tendinitis and left cubital tunnel syndrome. Examination of the left elbow
revealed full range of motion and intact muscle strength in all planes. Sensation was intact to
pinprick. There was a positive Tinel’s sign in left elbow. There was full range of motion of the
2

Docket No. 11-1350 (issued February 3, 2012). As noted, in its February 3, 2012 decision, the Board found that
appellant failed to establish a recurrence of disability for the period June 28 to December 20, 2010. Decisions and
orders of the Board are final upon expiration of 30 days from the date of issuance. 20 C.F.R. § 501.6(d). While an
appellant may petition for reconsideration with the Board within 30 days of the date of issuance of a Board decision
(20 C.F.R. § 501.7(a)), she did not file a petition for reconsideration with the Board of its February 3, 2012 decision.
Although OWCP denied the recurrence claim at issue in this case as of December 6, 2010, the Board will address
only the period beginning December 21, 2010, as the period December 6 to 20, 2010 was covered by the Board’s
February 3, 2012 decision.
3

Appellant’s April 23, 2002 claim was accepted for contusions of the chest and left arm, elbow and shoulder in
File No. xxxxxx836. File No. xxxxxx836 was combined with the instant case (File No. xxxxxx142), with File No.
xxxxxx142 serving as the master file.

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lumbar spine, including flexion/extension, left/right rotation and left/right side bending.
Regarding the left shoulder, there was no tenderness to palpation over biceps tendon. There was
full range of motion in forward/lateral elevation and internal/external rotation. Sensation was
intact to pinprick.
On December 4, 2010 appellant accepted a full-time position as a modified mail handler.
Duties included day-tagging containers. Physical requirements involved day-tagging parcels as
they came off trailers and walking areas to ensure that parcels were tagged.
The record contains an unsigned December 12, 2010 emergency room report from
Broadlawns Medical Center reflecting that appellant received a prescription for vicodin and
neurontin on that date.
In a December 20, 2010 disability certificate, Dr. Awan diagnosed right shoulder
dysfunction, left rotator cuff tendinitis and ulnar radiculopathy. He indicated that appellant was
disabled from December 5 through 22, 2010. On December 23, 2010 Dr. Ateeq K. Rehman, a
Board-certified physiatrist, stated that appellant could return to work on December 23, 2010 with
restrictions.
In a letter dated January 13, 2011, the employing establishment notified appellant of its
intent to terminate her for failure to report to work after working for one day on
December 4, 2010. Patricia Ginther, a manager, indicated that, during an interview on
December 23, 2010, appellant stated that she had reinjured herself at work on December 4, 2010
and had gone to the hospital after work on December 5, 2010. She noted that appellant had
provided no evidence to support her claim that she was unable to work after December 4, 2010.
The record reflects that appellant was terminated effective February 25, 2011 for failing to report
to work as assigned from December 5 through 23, 2010 and failing to provide any medical
documentation of her inability to work.4
On February 23, 2011 appellant filed a claim for compensation for the period
December 4, 2010 through February 22, 2011.
In a letter dated March 14, 2011, OWCP informed appellant that the evidence and
information submitted was insufficient to establish that she was totally disabled due to her
accepted injury during the claimed period (December 4, 2010 through February 22, 2011). It
noted inconsistencies in the evidence, including conflicting claims regarding dates she received
treatment. Appellant was asked to provide additional evidence and information, including a
medical report containing a diagnosis and a rationalized opinion as to the cause of her diagnosed
condition.
In a December 20, 2010 disability certificate, Dr. Rehman indicated that appellant was on
work disability from December 1, 2010 through January 20, 2011. Work restrictions included no
overhead lifting, no repetitive or overhead work, no above-the-shoulder work and no bending or
twisting.
4

Appellant grieved her potential firing from the employing establishment. She was permitted to return to limited
duty in June 2011.

3

By decision dated May 3, 2011, OWCP denied appellant’s recurrence claim effective
December 6, 2010. On May 20, 2011 appellant requested a review of the written record.
Appellant submitted an appeal request form, dated May 17, 2011, requesting
reconsideration of a May 19, 2010 decision denying her claim for compensation for the period
March 27, 2009 through June 27, 2010. She also submitted a letter dated May 17, 2011
requesting that the May 19, 2010 decision be reconsidered due to her medical disability
certificate.
In an appeal request form, dated May 20, 2011 and referencing the May 3, 2011 decision,
appellant requested a review of the written record.
Appellant submitted disability slips from Dr. Awan and Dr. Rehman dated March 19
through August 11, 2011. On March 19, 2011 Dr. Awan provided examination findings and
diagnoses pertaining to her left elbow, left shoulder and back. On June 11, 2011 he provided
findings that revealed appellant’s condition was unchanged and indicated that she was working
full time with restrictions. On July 9, 2011 Dr. Rehman noted complaints of left arm pain,
provided findings on examination and noted that she was working with restrictions. None of the
aforementioned reports contained an opinion regarding appellant’s ability to work from
December 4, 2010 through February 22, 2011 or addressed her medical condition during that
time period.
In a decision dated August 18, 2011, OWCP denied appellant’s request for
reconsideration. It found that the evidence presented was insufficient to warrant further merit
review of the May 3, 2011 decision denying her recurrence claim beginning December 6, 2010.
Appellant submitted an August 3, 2011 report from Dr. Mohammad Yusaf, a
Board-certified pediatrician, reflecting that she was seen in a hospital emergency room on that
date for an acute exacerbation of chronic left shoulder and arm pain. A form report from the
Henry Ford Wyandotte Hospital indicated that she was seen in the emergency department on
August 19, 2011. Robert McIntee, nurse practitioner, stated that appellant was told not to work
until released by her family physician. Triage notes dated August 19, 2011, signed by Dr. Gale
Darnell, Board-certified in emergency medicine, reflected that appellant was seen in the
emergency room on that date for left shoulder and arm pain.
By decision dated September 22, 2011, OWCP’s hearing representative affirmed the
May 3, 2011 decision denying appellant’s recurrence claim beginning December 6, 2010.5 He
found the medical evidence failed to establish that she was disabled during the claimed period or
that her condition had worsened such that she was unable to perform the duties of the light-duty
job provided by the employing establishment.6
5

The Board notes that OWCP’s hearing representative incorrectly stated that he was affirmed a January 13, 2011
decision. The content of his decision, however, addresses the issues presented in the May 3, 2011 decision denying
appellant’s claim for a recurrence of disability beginning December 6, 2011.
6

OWCP’s hearing representative noted that appellant had failed to provide medical evidence establishing that she
sustained a new injury at work on December 5, 2010.

4

LEGAL PRECEDENT -- ISSUE 1
Section 10.5(x) of OWCP’s regulations define “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness, without an intervening injury or
new exposure to the work environment that caused the illness.7 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.8
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that she can perform the light-duty position, the employee has the burden to establish, by the
weight of the reliable, probative and substantial evidence, a recurrence of total disability and
show that she cannot perform such light duty. As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty job requirements.9
The Board will not require OWCP to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability beginning December 21, 2010. The record establishes that
the employing establishment provided her with a light-duty position in accordance with her
medical restrictions. Appellant has not provided a rationalized medical opinion establishing that
she was disabled from that light-duty job as of December 21, 2010.
OWCP accepted appellant’s claim for left shoulder tendinitis and left cubital tunnel
syndrome. On December 4, 2010 Dr. Awan released her to work with restrictions including no
repetitive or overhead work and no lifting above the shoulder. On that same date, appellant
accepted a full-time position as a modified mail handler. Duties included day-tagging
containers, physical requirements involved day-tagging parcels as they came off trailers and
walking areas to ensure that parcels were tagged. The Board finds that the employing

7

20 C.F.R. § 10.5(x) (2002). See Carlos A. Marrero, 50 ECAB 117 (1998).

8

Id.

9

Conard Hightower, 54 ECAB 796 (2003).

10

Fereidoon Kharabi, 52 ECAB 291 (2001).

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establishment provided appellant with a modified position that was within her medical
restrictions.
On February 23, 2011 appellant filed a notice of recurrence of disability as of
December 4, 2010. She did not allege, nor does the evidence support, that her duties had
changed or that her condition had spontaneously worsened such that she was unable to perform
the light-duty job.
Rather, appellant alleged that she reinjured herself at work on
December 4, 2010. She, however, provided no information as to how the claimed injury
occurred or any supporting evidence that it, in fact, did occur. The Board notes that appellant’s
allegations undermine her recurrence claim, as they suggest that she may have experienced an
intervening injury, rather than a spontaneous worsening of her accepted condition.11
The medical evidence of record is insufficient to establish that appellant was disabled due
to her accepted injury during the period in question. On the contrary, the medical evidence
establishes that she was capable of working with restrictions. On December 4, 2010 Dr. Awan
provided examination findings reflecting full range of motion and intact muscle strength in all
planes of the left elbow, with intact sensation. In the left shoulder, there was full range of
motion and no tenderness to palpation over biceps tendon. Dr. Awan diagnosed lower back pain,
left shoulder rotator cuff tendinitis and left cubital tunnel syndrome. He opined that appellant
was disabled from work from March 30 through December 3, 2010, but was able to return to
work on December 4, 2010 with previously identified restrictions.
On December 20, 2010 Dr. Awan diagnosed right shoulder dysfunction, left rotator cuff
tendinitis and ulnar radiculopathy and stated that appellant was disabled from December 5
through 22, 2010. This report does not contain a history of injury, examination findings or an
opinion on the cause of appellant’s claimed disability. Therefore, Dr. Awan’s report is of limited
probative value.12 In March 19 and June 11, 2011 notes, he provided current examination
findings and diagnoses pertaining to appellant’s left elbow, left shoulder and back conditions on
those dates. As these reports do not address the period in question, they are irrelevant to the
issue at hand and insufficient to establish appellant’s claim.
Dr. Rehman’s notes and reports do not support appellant’s claim. In a December 20,
2010 disability certificate, he indicated that she was on work disability from December 1, 2010
through January 20, 2011. At the same time, however, Dr. Rehman recommended work
restrictions, which included no overhead lifting, no repetitive or overhead work, no above-theshoulder work and no bending or twisting. It is impossible to determine from his inconsistent
statements whether he believed appellant to be totally disabled from her light-duty job during the
referenced period. Moreover, Dr. Rehman did not provide an opinion on the cause of appellant’s
claimed disability. Therefore, his report is of diminished probative value. Dr. Rehman’s
December 23, 2010 report, in which he stated that appellant could return to work on that date
11

Appellant is not precluded from filing a claim for a traumatic injury for a claimed December 4, 2010 incident.
The Board notes that this claim was developed as a claim for a recurrence of disability relating to her April 30, 2002
occupational disease claim.
12

Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value. Dennis M. Mascarenas, 49 ECAB 215 (1997).

6

with restrictions, undermines her claim of total disability. On July 9, 2011 he noted complaints
of left arm pain, provided findings on examination and noted that appellant was working with
restrictions. As these reports do not address the period in question, they are irrelevant. As noted,
the Board will not require OWCP to pay compensation in the absence of medical evidence
directly addressing the particular period of disability for which compensation is sought.13
The remaining medical evidence of record, including emergency room records, x-ray and
magnetic resonance imaging scan reports, disability slips and prescription notes, that do not
contain an opinion on the cause of appellant’s condition, are of limited probative value and
insufficient to establish appellant’s recurrence claim. The record contains an August 19, 2011
report from a nurse practioner. As nurse practitioners are not considered to be physicians under
FECA, this report does not constitute probative medical evidence.14
On appeal, appellant contends that the employing establishment failed to provide her with
work within her restrictions from November 30, 2010 until June 3, 2011. She can establish a
recurrence of disability by establishing that her light-duty assignment was withdrawn for reasons
other than misconduct, nonperformance of job duties or a reduction-in-force.15 Appellant has not
established such a withdrawal. The employing establishment controverted her claim and stated
that it terminated her for her failure to appear for duty or to explain her absence. Appellant has
presented no evidence to refute the employing establishment’s position. Rather, the evidence
shows that employing establishment provided her with a position within her restrictions. After
accepting the position and working for one day, she abandoned her job, without communicating
with her employer for a period of weeks. The Board finds that appellant failed to establish that
her light-duty position was improperly withdrawn.
Appellant has failed to establish by the weight of the reliable, probative and substantial
evidence, a change in the nature and extent of the injury-related condition resulting in her
inability to perform the duties of her modified employment. She has provided insufficient
rationalized opinion evidence establishing that she was disabled as of December 21, 2010 or any
evidence that the employing establishment withdrew or was unable to provide her with, a
light-duty job within her medical restrictions. As appellant has not submitted sufficient medical
evidence to establish that she sustained a recurrence of disability due to her accepted
employment injury, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

13

Fereidoon Kharabi, 52 ECAB 291 (2001).

14

A medical report may not be considered to be probative medical evidence if there is no indication that the
person completing the report qualifies as “physician” as defined by FECA. Section 8101(2) of FECA provides as
follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J. Sills, 39
ECAB 572, 575 (1988).
15

Id.

7

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,16
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.17 To be entitled to a merit review
of an OWCP 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, OWCP 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
On May 17, 2011 appellant requested reconsideration of OWCP’s May 19, 2010 decision
denying her recurrence claim for the period March 27 through June 27, 2010. In its August 18,
2011 decision, however, OWCP denied her request for merit review of its May 3, 2011 decision,
which denied her recurrence claim for a different period. The Board finds that it improperly
interpreted appellant’s May 17, 2011 letter and appeal request form as a request for
reconsideration of the May 3, 2011 decision, when, in fact, she was requesting a merit review of
OWCP’s May 19, 2010.
The evidence of record clearly reflects intent on appellant’s part to seek reconsideration
of the May 19, 2010 decision. The May 17, 2010 appeal request form and letter requesting
reconsideration specifically referenced the May 19, 2010 decision. The fact that on May 20,
2011 appellant requested a review of the written record, regarding the May 3, 2011 decision,
indicates that she did not intend to ask OWCP for a merit review of that decision.
As OWCP failed to properly address appellant’s request for reconsideration of its
May 19, 2010 decision, the August 18, 2011 decision must be set aside and remanded for a
determination as to whether appellant submitted sufficient evidence or argument to require
OWCP to reopen a case for merit review under section 8128(a) of FECA.

16

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, 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).

8

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability that was causally related to her accepted injury as of
December 21, 2010. The Board also finds that OWCP did not properly address appellant’s
May 17, 2011 request for reconsideration of its May 19, 2010 decision.
ORDER
IT IS HEREBY ORDERED THAT the September 22 and May 3, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed, as modified.
IT IS FURTHER ORDERED that the August 18, 2011 decision is set aside and the
case is remanded for action consistent with this decision.
Issued: July 10, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TEXAS SERVICE CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 16-1572
Issued: January 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 29, 2016 appellant filed a timely appeal from a February 3, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish kidney failure causally
related to exposure to mold at the employing establishment.
On appeal appellant asserts that his constitutional rights to due process and fundamental
fairness were violated by OWCP in its consideration of his claim. He maintains that OWCP
decisions were based on evidence not provided to him, that he was held to a heightened

1

5 U.S.C. § 8101 et seq.

evidentiary standard, and that OWCP made incorrect assumptions. Appellant concludes that the
medical evidence of record establishes his claim.
FACTUAL HISTORY
On May 15, 2015 appellant, then a 43-year-old attorney, filed an occupational disease
claim (Form CA-2) alleging that exposure to mold at the 7701 North Stemmons Freeway, Dallas,
Texas (hereinafter 7701 Stemmons) employing establishment facility caused acute kidney
failure. He noted that he was admitted to Baylor University Hospital in August 2014 and
maintained that the medical evidence ruled out other possible causes for his condition. The
employing establishment commented that appellant no longer worked at 7701 Stemmons as he
had been transferred to another location. It indicated that appellant’s work assignment had not
changed.2
In a separate statement, appellant reported that he was not feeling well on August 13,
2014 and went to see his personal physician, Dr. Shari Gamarnik, a Board-certified family
physician, who performed tests. Dr. Gamarnik called him the next day with test results and
informed him to immediately report to the emergency room at Baylor Hospital for admission,
where he was treated by Dr. Christopher Hebert, Board-certified in internal medicine and
nephrology. Appellant continued that, although improved, he had permanently lost at least half
of his healthy kidney function and that testing ordered by Dr. Hebert had ruled out all causes
with the exception of exposure to mold. He noted that, following his illness, the employing
establishment had conducted an investigation and concluded that the 7701 Stemmons facility had
an unacceptable amount of toxic mold.
An undated “supervisor’s narrative,” completed by appellant’s unidentified first-line
supervisor, noted that he (the supervisor) worked at the Vermont Service Center, where appellant
had worked until May 2014 when he transferred to the Texas Service Center. The supervisor
related that appellant worked at the 7701 Stemmons facility until hospitalization on August 14,
2014 and teleworked until another workstation was secured. The supervisor noted that asbestos
and mold were identified at the 7701 Stemmons facility in June 2014, and mold testing to
identify remediation needs had occurred.
By letter dated June 3, 2015, OWCP informed appellant of the evidence needed to
establish his claim. It indicated that it had received his personal statement and a statement from
the employing establishment.
Evidence submitted includes a September 25, 2014 mold report indicating that mold
spores were found in appellant’s 7701 Stemmons office. An occupational safety and health
report dated December 13, 2014 noted that an inspection was performed at 7701 Stemmons from

2

The Board notes that appellant had an additional claim before the Board, adjudicated by OWCP under File No.
xxxxxx135. In that case, appellant claimed employment-related disability caused by an accepted coccyx contusion
and parasitic infestation acquired during Peace Corps service in 1997. In an October 2, 2000 decision, the Board
remanded appellant’s case to OWCP to determine the period appellant was disabled due to the accepted conditions.
Docket No. 99-1531 (issued October 2, 2000). The instant case was adjudicated under File No. xxxxxx057.

2

December 9 to 11, 2014.3 The report indicated that testing for mold was positive and, as a result
of suspected exposure to mold, an unidentified employee had sustained a debilitating illness and
had been permanently removed from 7701 Stemmons. The report concluded that a mold and
asbestosis remediation project was ongoing, but acknowledged that significant work remained to
be done to bring the building to an acceptable condition. A leave analysis documented
appellant’s leave from pay period 5 in 2014 to pay period 9 in 2015.
In a July 1, 2015 declaration, appellant indicated that he transferred from Vermont to
Texas in May 2014 where he worked at 7701 Stemmons until August 2014. He related that
many tests and exploratory procedures were conducted while he was hospitalized, all of which
ruled out a cause of his kidney failure, but that exposure to mold had not been ruled out and was
the only remaining possible cause. Appellant indicated that he continued to be treated by
Dr. Hebert. He maintained that his only exposure to mold was at 7701 Stemmons.
The record includes numerous reports of appellant’s hospitalization at Baylor University
Medical Center where he was admitted through the emergency department on August 14, 2014
and was diagnosed with acute renal failure and hypertension. On the day of admission, appellant
was seen by Dr. Hebert. Dr. Hebert noted the onset of an acute kidney injury. He reported that
the etiology was puzzling, not nephrotic, with only minimal blood in urine and no casts reported,
and that the renal ultrasound was unremarkable. Dr. Hebert advised that progressive glomerular
nephritis could not be ruled out, but that testing for anti-neutrophil cytoplastimic and antinuclear
antibodies was negative. He advised that appellant possibly had tubulointerstitial nephritis and
uveitis syndrome, but noted that appellant did not complain of any eye pain or change in visual
acuity, and this condition was very rare and more commonly associated with the pediatric
population. Dr. Hebert ordered a renal biopsy and steroid medication. An ultrasound-guided
renal biopsy was performed on August 15, 2014. Dr. Daniel Savino, Board-certified in anatomic
and clinical pathology, advised that the biopsy was abnormal due to the presence of multiple
nonnecrotic granulomas. He reported that stains for acid-fast bacilli and fungi were done in
pathology and found to be negative.
Appellant was followed daily by Dr. Joseph N. Khalil, an internist, while hospitalized.
Dr. Khalil noted that testing for mosquito and tick borne illness was negative. Appellant was
discharged on August 18, 2014. At discharge, Dr. Khalil noted that a Quantiferon gold test was
sent with added fungal stain, which was pending. Appellant was to follow-up with Dr. Hebert.
Discharge diagnoses were acute kidney injury, fatigue, acute conjunctivitis, and malaise.
Appellant also submitted laboratory results dated March 6, 2015 consisting of a complete blood
count and comprehensive metabolic panel.
Dr. Hebert provided outpatient treatment notes dated August 26, 2014 to April 14, 2015.
In each report he recorded vital signs, provided a review of systems, and diagnosed
granulomatous interstitial nephritis and nephropathy, not specified as acute or chronic, with other
specified pathological lesion in kidney. Dr. Hebert also provided results of laboratory tests
including renal function panel, urinalysis, and basic metabolic panel. These indicated that
3

The report identified three Dallas area facilities used for employing establishment operations: 7701 N.
Stemmons Freeway, 8001 N. Stemmons Freeway, and 4141 N. Saint Augustine Drive in Mesquite, Texas.

3

appellant’s estimated glomerular filtration rate (EGFR) was low. A publication explaining
EGFR was included.
In correspondence dated April 17, 2015, Dr. Hebert noted that appellant had been his
patient since August 2014 with acute kidney injury and that kidney biopsy done while appellant
was hospitalized revealed granulomatous interstitial nephritis. He advised that this type of
kidney disease was a rare histologic diagnosis, present in less than one percent of native renal
biopsies, and had been associated with certain medications, autoimmune diseases, crystalline
deposits, certain malignancies, and several types of infection. Dr. Hebert related that in
appellant’s case, following thorough blood testing and extensive work-up, medications,
autoimmune diseases, crystalline deposits, and certain malignancies were ruled out. He
continued that the most common infectious causes were typically related to mycobacteria and
fungi, noting that appellant’s early blood tests essentially ruled out mycobacterial infection,
leaving the one possibility of a fungal infection or exposure as the one etiology that was very
difficult to completely eliminate. Dr. Hebert concluded:
“Although we have not determined that an occupational exposure has directly
resulted in the development of this disease process, it is hard to completely
attribute this to coincidence given how rare of a disease state it already is. For
that reason, I have advised him to avoid buildings or known occupational
exposures to various types of fungi. My hope is that you will cooperate with him,
and assist us with this recommendation.”
By decision dated August 27, 2015, OWCP denied appellant’s claim. It found that
appellant established the claimed exposure to mold, but the medical evidence submitted was
insufficient to establish that his diagnosed kidney condition was causally related to the
employment exposure.
Appellant timely requested a hearing, that was held on December 10, 2015. At the
hearing he indicated that he had not received all mold testing documentation. Appellant asserted
that since every other cause of his kidney condition had been ruled out, it must be due to mold.
The hearing representative advised him of the exact medical evidence needed to establish causal
relationship between mold exposure and the diagnosed condition. She also noted that Dr. Khalil
indicated that a Quantiferon gold laboratory test was pending and asked that appellant submit the
results. The record was held open for 30 days.
In correspondence dated January 11, 2016 addressed to an OWCP hearing representative,
appellant maintained that Dr. Hebert’s opinion was not speculative and was sufficient to
establish that his kidney failure was caused by occupational exposure to mold.
By decision dated February 3, 2016, OWCP’s hearing representative affirmed the
August 27, 2015 decision. She agreed that the record established that appellant was exposed to
mold at the employing establishment, but found that the medical evidence of record did not
establish that his kidney condition was caused by the occupational exposure. The hearing
representative found that Dr. Hebert did not comment on the degree of appellant’s exposure and
also found his opinion to be speculative.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, and that the claim was timely filed within the
applicable time limitation period of FECA.4 When an employee claims that he or she sustained
an injury in the performance of duty,5 he or she must submit sufficient evidence to establish that
he or she experienced a specific event, incident, or exposure occurring at the time, place, and in
the manner alleged.6 The employee must also establish that such event, incident, or exposure
caused an injury.7 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.8
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”9 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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.10
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.12 Neither the mere fact that a disease or condition manifests itself during a period

4

5 U.S.C. § 8101(1); L.M., Docket No. 16-0143 (issued February 19, 2016); B.B., 59 ECAB 234 (2007).

5

Id. at § 8102(a).

6

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

7

Id.

8

R.H., 59 ECAB 382 (2008).

9

20 C.F.R. § 10.5(ee).

10

Roy L. Humphrey, 57 ECAB 238 (2005).

11

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

5

of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.13
ANALYSIS
OWCP accepted that appellant was exposed to mold when he worked at 7701 Stemmons.
However, the Board finds that the medical evidence submitted is insufficient to establish the
claim. The medical evidence submitted to support a claim for compensation should reflect a
correct history, and the physician should offer a medically sound explanation of how the claimed
work event caused or aggravated the claimed condition.14 No physician did so in this case.
In an April 17, 2015 report, Dr. Hebert noted treating appellant since August 2014 for
acute kidney injury and that kidney biopsy done while appellant was hospitalized revealed
granulomatous interstitial nephritis. He advised that this type of kidney disease was a rare
histologic diagnosis, present in less than one percent of renal biopsies and had been associated
with certain medications, autoimmune diseases, crystalline deposits, certain malignancies, and
several types of infections. Dr. Hebert related that, in appellant’s case, thorough blood testing
and extensive work-up ruled out medications, autoimmune diseases, crystalline deposits, and
certain malignancies as the cause of appellant’s kidney condition. He continued that the most
common infectious causes were typically related to mycobacteria and fungi, noting that
appellant’s early blood tests essentially ruled out mycobacterial infection, leaving the one
possibility of a fungal infection or exposure as the only etiology that was very difficult to
completely eliminate. Dr. Hebert concluded:
“Although we have not determined that an occupational exposure has directly
resulted in the development of this disease process, it is hard to completely
attribute this to coincidence given how rare of a disease state it already is. For
that reason, I have advised him to avoid buildings or known occupational
exposures to various types of fungi. My hope is that you will cooperate with him,
and assist us with this recommendation.”
The mere fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two.15 Moreover, opinions
which are speculative or equivocal are of diminished probative value.16 The opinion of a
physician supporting causal relationship must be one of reasonable medical certainty that the
condition for which compensation is claimed is causally related to a claimant’s federal
employment and such relationship must be supported with affirmative evidence, explained by
13

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

14

D.D., Docket No. 13-1517 (issued April 14, 2014).

15

R.L., Docket No. 15-0946 (issued October 19, 2015).

16

See S.E., Docket No. 15-1759 (issued January 8, 2016) (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 (2005) (finding that medical opinions which are speculative or equivocal
are of diminished probative value).

6

medical rationale and be based upon a complete and accurate medical and factual background of
the claimant.17 Dr. Hebert’s April 17, 2015 report has no clear supporting opinion on causal
relationship.
Also submitted were many laboratory tests, procedure notes, and hospital records. These
did not provide a physician’s opinion on the cause of any diagnosed conditions. Likewise,
Dr. Khalil merely discussed appellant’s hospital course. The Board has long held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.18
As to appellant’s assertion on appeal that OWCP applied an incorrect evidentiary
standard, as noted, the Board has long held that to support causal relationship, the opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.19
It is appellant’s burden to establish that the claimed kidney condition is causally related
to factors of his federal employment. He submitted insufficient evidence to show causal
relationship between the accepted occupational exposure to mold and the claimed condition.
As to appellant’s assertion on appeal that his constitutional rights to due process and
fundamental fairness were violated, the Supreme Court has held that constitutional questions are
unsuited to resolution in administrative hearing procedures.20 As the Board is an administrative
body, it does not have jurisdiction to review a constitutional claim such as that made by
appellant. Federal courts retain jurisdiction over decisions under FECA where there is a charge
of a violation of a clear statutory mandate or where there is a constitutional claim.21
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
kidney failure was caused or aggravated by exposure to mold at the 7701 Stemmons facility.

17

A.D., 58 ECAB 149 (2006).

18

G.M., Docket No. 14-2057 (issued May 12, 2015); C.B., Docket No. 09-2027 (issued May 12, 2010); Willie M.
Miller, 53 ECAB 697 (2002).
19

Supra note 12.

20

See Johnson V. Robinson, 415 U.S. 361 (1974) and cases cited therein.

21

Robert F. Stone, 57 ECAB 292 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COATESVILLE VETERANS MEDICAL
CENTER, Coatesville, PA, Employer
__________________________________________

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

Docket No. 08-351
Issued: June 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 14, 2007 appellant filed a timely appeal from November 22, 2006 and
June 19, 2007 decisions 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 the case.
ISSUE
The issue is whether appellant has more than a five percent impairment of her left upper
extremity.
FACTUAL HISTORY
On May 30, 2000 appellant, then a 57-year-old nursing assistant, sustained a fracture and
contusion of her left ring finger when a closing door struck her hand. On June 27, 2002 she filed
a claim for a schedule award. On October 28, 2002 appellant sustained a trigger finger condition
of her middle finger and de Quervain’s tendinitis of her left wrist due to work activities,

including repetitive pushing, pulling and lifting.1 On June 6, 2005 appellant filed a second claim
for a schedule award.
In a June 7, 2001 report, Dr. David Weiss, an orthopedic surgeon, provided findings on
physical examination. He found that appellant had a seven percent impairment of her left upper
extremity based on constrictive tenosynovitis of the left ring finger and Tables 16-18 and 16-29
at pages 499 and 507, respectively, of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) fifth edition.2 On October 15, 2002
Dr. M.F. Quinlan, a district medical director, found that appellant had a seven percent
impairment of her left ring finger, based on the physical findings in the report of Dr. Weiss.
On March 5, 2003 the Office granted appellant a schedule award from May 25 to June 6,
2001, or 1.75 weeks, for a seven percent impairment of her left ring finger.3 By decisions dated
March 3, 2004 and February 9, 2005, it denied appellant’s claim for an additional schedule
award for her left hand.
On May 10, 2005 appellant requested reconsideration and submitted a February 8, 2005
report in which Dr. Weiss stated that appellant had intermittent left hand pain, weakness and
stiffness. Dr. Weiss provided findings on physical examination. He found that appellant had a 5
percent range of motion impairment of her left upper extremity, including 11 percent for
decreased flexion (70 degrees) of the left middle finger metacarpophalangeal (MP or MCP) joint,
based on Figure 16-25 at page 464 of the fifth edition of the A.M.A., Guides, and 21 percent for
decreased flexion (30 degrees) of the left middle finger distal interphalangeal (DIP) joint, based
on Figure 16-21 at page 461, for a combined digit impairment of 30 percent, which constituted a
5 percent impairment of the upper extremity. Dr. Weiss combined the five percent impairment
for range of motion deficit with three percent for pain, based on Table 18-1 at page 574, and
determined that appellant had eight percent upper extremity impairment.
By decision dated August 18, 2005, the Office affirmed the February 9, 2005 decision
denying appellant’s claim for greater than a seven percent impairment of her left ring finger.
The Office noted, however, that the medical evidence supported the impairment of two digits,
her left ring finger and left middle finger. It indicated that a separate schedule award would be
issued regarding impairment of her left upper extremity due to the impairment of two digits.
Dr. Arnold Berman, an Office medical adviser, found that, based on the reports of
Dr. Weiss, appellant had a five percent impairment of the hand which constituted a five percent
impairment of the upper extremity, based on Table 16-2 at page 439 of the A.M.A., Guides. He
stated that there was no basis for Dr. Weiss’ finding of impairment due to pain.
1

The Office associated the file for the 2000 employment injury (File No. 030252134) with the file for the 2002
employment injury (File No. 032013724) under the master file, File No. 032013724.
2

Dr. Weiss did not take into consideration the fact that, under the Federal Employees’ Compensation Act, if only
one digit (thumb or a finger) is impaired, the impairment percentage does not extend to a larger unit, the hand or the
upper extremity. 5 U.S.C. § 8107(c)(17), (20).
3

The Act provides for 25 weeks of compensation for 100 percent loss or loss of use of the third (ring) finger.
5 U.S.C. § 8107(c)(10). Multiplying 25 weeks by seven percent equals 1.75 weeks of compensation.

2

By decision dated August 19, 2005, the Office granted appellant a schedule award from
February 7 to May 14, 2005 or 15.60 weeks, for a five percent impairment of her left upper
extremity4 In an August 19, 2005 file memorandum, a claims examiner noted that appellant had
previously received compensation for 12.25 days for her seven percent impairment of her left
ring finger (1.75 weeks multiplied by 7 days in a week). Consequently, appellant was entitled to
109.20 days of compensation for her five percent left upper extremity impairment (15.60 weeks
multiplied by 7 days). The Office deducted the 12.25 days previously paid, leaving a balance of
96.95 days of compensation, rounded to 97 days.
On August 29, 2005 appellant requested a hearing that was held on December 20, 2005.
By decision dated March 8, 2006, an Office hearing representative found a conflict in the
medical opinion evidence between Dr. Weiss and Dr. Berman as to appellant’s left upper
extremity impairment and remanded the case for an evaluation by an impartial medical specialist.
The Office referred appellant, together with a statement of accepted facts, a list of
questions and the case file, to Dr. Richard I. Zamarin, a Board-certified orthopedic surgeon, for
an impairment rating of her left upper extremity. In a December 12, 2006 report, Dr. Zamarin
stated that appellant’s left wrist ached occasionally. He provided findings on physical
examination as follows:
“Range of motion of her fingers revealed that her [MP] joints have full extension
and 90 degrees of flexion…. The proximal interphalangeal [PIP] joint extension
is 0 degrees in all fingers and 100 degrees of flexion in the second and third
[index and middle fingers], 94 degrees in the fourth [ring finger], and 100 degrees
in the fifth [little finger]. The [DIP] joint range of motion is 0 degrees of
extension in the second through fifth digits, and 54 degrees of flexion in the
second and third, 46 degrees of flexion in the fourth, and 64 degrees of flexion in
the fifth…. These measurements were taken using a goniometer.
“Examination of the left wrist revealed a ganglion overlying the first dorsal
compartment.
[Appellant] had minimal tenderness over the first dorsal
compartment and she had a minimally positive Finkelstein’s test. [She] had full
flexion, extension, pronation, and supination of her left wrist and forearm.
[Appellant] was neurovascularly intact distally.
“[Appellant’s] grip strength was equal bilaterally to manual testing.”
***
“Going to [p]age 461, Figure 16-21 … the finger DIP joint range of motion of the
[middle] finger is 0 to 54 degrees, which is approximately eight percent
[i]mpairment in [f]lexion.

4

The Act provides for 312 weeks of compensation for 100 percent loss or loss of use of an upper extremity.
5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by five percent equals 15.60 weeks of compensation. The Office
noted that appellant previously received a schedule award for the left ring finger.

3

“The PIP joint of the [middle] finger flexes to 100 degrees. So, going to [p]age
463, Figure 16-23 … this is [zero] percent Impairment.
“Then going to [p]age 464, Figure 16-25 … her MP joint flexes to 90 degrees
and, therefore, this is also a [zero] percent [i]mpairment.
“Then going to her [ring] finger, again [p]age 461, Figure 16-21, her [ring] finger
flexes to the DIP to 46 degrees, which is a 12 percent [i]mpairment in [f]lexion.
Going to [p]age 463, Figure 16-23, her PIP flexes to 94 degrees, which is
approximately a 4 percent [i]mpairment in [f]lexion and the [MP] joint flexes to
90 degrees, and going to [p]age 464, Figure 16-25, this is a 0 percent
[i]mpairment in [f]lexion.
“On [p]age 511, Step 3 states that the motion impairments of the DIP, PIP, and
MP fingers are combined using a Combined Values Chart on [p]age 604. For the
[middle] finger, this remains [eight] percent. For the [ring] finger, combining 12
percent with 4 percent gives a 16 percent [i]mpairment.
“One then has to convert as in Step 6, on [p]age 511, the individual digit
impairments to hand impairments. Going to [p]age 438, Table 16-1 … an 8
percent [middle] digit impairment converts to a 2 percent [h]and [i]mpairment,
and a 16 percent ring finger impairment converts to a 2 percent [h]and
[i]mpairment.
“On [p]age 511, Step 7 states that you then add the hand impairment values
contributed by each digit. This gives a [four] percent [h]and [i]mpairment.
[G]oing to Table 16-2 … a [four] percent [h]and [i]mpairment converts to a 4
percent [u]pper [e]xtremity [i]mpairment.
“I do not believe, based upon a reasonable degree of medical certainty, that there
is any basis for a pain award and I am in agreement with Dr. Berman. [Appellant]
told me that she is doing normal activities, has no restrictions as a result of her
symptoms, and it only bothers her if she works a long time or with weather
changes, and that warm water helps it. I would therefore not award her anything
for her pain.”
By decision dated December 22, 2006, the Office found that appellant had no more than a
five percent left upper extremity impairment for which she received a schedule award.
On January 3, 2007 appellant requested a hearing that was held on April 2, 2007. By
decision dated June 19, 2007, an Office hearing representative affirmed the December 22, 2006
decision.

4

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 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 A.M.A.,
Guides.6
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
shall appoint a third physician who shall make an examination.7 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.8
ANALYSIS
Due to the conflict in the medical opinion evidence between Dr. Weiss and Dr. Berman
as to the permanent impairment of appellant’s left upper extremity, the Office properly referred
appellant to Dr. Zamarin for an impartial medical examination.
The Board finds that Dr. Zamarin’s evaluation of appellant’s left upper extremity
impairment is not sufficient to resolve the conflict in medical opinion.
Dr. Zamarin did not provide all the range of motion measurements required in the
A.M.A., Guides for determination of wrist impairment. He stated that appellant had full flexion
and extension of her wrist. However, Dr. Zamarin did not provide measurements for ulnar and
radial deviation.9 Additionally, the record shows that the file was not routed to an Office

5

5 U.S.C. § 8107.

6

See 20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001). See also Linda Beale, 57 ECAB 429 (2006).
7

5 U.S.C. § 8123(a).

8

See Darlene R. Kennedy, 57 ECAB 414 (2006); Roger Dingess, 47 ECAB 123 (1995).

9

See A.M.A., Guides 468-69, Figures 16-29 and 16-31. The Board notes that Dr. Zamarin correctly applied
appellant’s physical findings on examination to the A.M.A., Guides concerning the range of motion deficits of her
middle finger and ring finger for her accepted conditions. He correctly converted the finger impairments to a four
percent impairment of the left upper extremity. Dr. Zamarin explained his finding that there was no basis for
impairment due to pain or sensory deficit. He noted that appellant’s left upper extremity was neurovascularly intact
distally and she had minimal tenderness. Appellant was performing normal activities with no restrictions as a result
of her accepted conditions. Her left upper extremity bothered her only if she worked for a long time or with changes
in weather.

5

medical adviser following Dr. Zamarin’s impairment evaluation as required by Office
procedures.10
Board case precedent provides that, when the Office obtains an opinion from an impartial
medical specialist for the purpose of resolving a conflict in the medical evidence and the
specialist’s opinion requires clarification or elaboration, the Office must secure a supplemental
report from the specialist to correct the deficiency in his original report. Only when the impartial
specialist is unable to clarify or elaborate on his original report or if his supplemental report is
incomplete, vague, speculative or lacking in rationale, should the Office refer the claimant to a
second impartial specialist.11
CONCLUSION
The Board finds that this case is not in posture for a decision. The case will be remanded
for the Office to obtain a supplemental report from Dr. Zamarin. After the report is obtained, the
Office should route the file to an Office medical adviser for an opinion on appellant’s left upper
extremity impairment.

10

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); see also
Richard R. LeMay, 56 ECAB 341 (2005).
11

See Nancy Keenan, 56 ECAB 687 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 19, 2007 and December 22, 2006 be set aside. The case is
remanded for further development consistent with this decision of the Board.
Issued: June 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
NUCLEAR REGULATORY COMMISSION,
HRO-HEADQUARTERS, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1586
Issued: January 25, 2017

Case Submitted on the Record

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

JURISDICTION
On August 1, 2016 appellant filed a timely appeal from a March 29, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated October 6, 2015, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 29, 2016 nonmerit decision OWCP received additional evidence.
Appellant also submitted evidence with her appeal to the Board. However, the Board may only review evidence that
was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176
(issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB
281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
On appeal appellant argues that her chronic neck pain had been aggravated by her
computer use at work.
FACTUAL HISTORY
On July 23, 2015 appellant, then a 37-year-old chemical engineer, filed an occupational
disease claim (Form CA-2) alleging that on July 15, 2015 she first realized that her neck pain
was caused by her computer use.
In a letter dated August 13, 2015, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. Appellant was advised regarding the medical and factual
evidence required to establish her claim. In the attached questionnaire, OWCP requested that she
provide a detailed description of the employment activities she believed caused or aggravated her
condition including the number and length of times she performed these activities. It afforded
appellant 30 days to submit the requested evidence. Appellant did not respond to OWCP’s
August 13, 2015 letter.
By decision dated October 6, 2015, OWCP denied appellant’s claim as it found she had
failed to establish fact of injury. It found the evidence of record insufficient to establish that
event or events occurred as alleged due to failure to provide a factual statement describing the
factors she believed caused or aggravated her condition. OWCP also noted that appellant failed
to provide any medical evidence.
On March 21, 2016 appellant requested reconsideration. In support of her request she
submitted documents on the effects of vertebral subluxation, spinal nerve function, and forward
head syndrome; photographs of diagnostic images; and a January 18, 2016 report by Dr. Richard
Hagmeyer, a chiropractor. Dr. Hagmeyer diagnosed forward head syndrome based on review of
x-ray interpretation.
By decision dated March 29, 2016, OWCP denied reconsideration. It found the evidence
submitted was insufficient to warrant a merit review as it failed to address the basis for the denial
of appellant’s claim, which was failure to prove fact of injury. OWCP noted that she had not
submitted any statement describing her job duties, outside activities, medical care, or
circumstances regarding her injury.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
3

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.

2

interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received by OWCP within one
year of the date of that decision.5 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
Appellant claimed that she sustained a neck injury due to factors of her federal
employment. In her July 23, 2015 claim form, the only document of record containing her direct
description of work factors, she attributed her neck condition to using a computer. On
August 13, 2015 OWCP requested that appellant submit a detailed statement describing the
employment tasks and specifying the frequency and duration of the tasks she attributed to
computer work on her claim form. Appellant did not provide the information OWCP had
requested describing her employment task or the frequency and duration of computer use. Due
to the lack of a factual statement describing the factors of employment, OWCP issued its
October 6, 2015 decision denying the claim, finding that appellant failed to establish the factual
component of fact of injury, as the claimed work incident was not established. It also noted that
appellant had failed to submit medical evidence in support of her claim.
The Board finds that appellant’s March 15, 2016 request for reconsideration neither
alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law.
It further finds that she failed to advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to a review of the merits of his claim based on
the first and second above-noted requirements under section 10.606(b)(3).7
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP. In support of her request for reconsideration, appellant
submitted documents on the effects of spinal subluxation and nerve function, forward head
syndrome, and chiropractic care; photographs of diagnostic images; and a January 18, 2016
report by Dr. Hagmeyer, a chiropractor. None of this evidence is relevant to the underlying
factual issue identifying the employment factors she believed caused or aggravated her neck

4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

Id. at § 10.607(a).

6

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
7

20 C.F.R. § 10.606(b)(3).

3

condition. The Board has held that evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.8
The Board finds that the documents appellant submitted with her request for
reconsideration consisted primarily of medical literature. Medical literature however does not
constitute relevant or pertinent new evidence as it is irrelevant to the issue of causal relationship
and is not based on a physician’s medical opinion from a complete and accurate medical history
of appellant.9
Appellant also submitted a January 18, 2016 report from Dr. Hagmeyer, chiropractor, in
which he diagnosed forward head syndrome. The Board has held that a chiropractor is a
physician as defined under FECA only to the extent that the reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.10 The evidence does not establish that appellant was diagnosed
with subluxation based on the results of an x-ray. Accordingly, the Board finds that
Dr. Hagmeyer does not qualify as a physician under FECA and his reports therefore cannot be
considered competent medical evidence sufficient to require merit review of appellant’s claim.11
The Board, therefore, finds that the evidence submitted by appellant is insufficient to reopen her
claim for a merit review.
On appeal appellant contends that the medical evidence of record showed that her chronic
neck condition had been aggravated by her computer work. As noted above, the Board lacks
jurisdiction to consider the merits of the claim as the only decision before the Board is the
March 29, 2016 nonmerit decision. Appellant’s statement attributing her condition to computer
work is insufficient to establish the factual portion of her claim since it does not provide with
specificity a sufficient description of her employment activities or the length or duration of the
activities.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

8

E.O., Docket No. 15-0635 (issued June 5, 2015); R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB
545 (2005).
9

See D.B., Docket No. 10-2036 (issued May 13, 2011).

10

Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulations by the Secretary. See 5 U.S.C. § 8101(2); see also Merton J. Sills, 39 ECAB
572, 575 (1988).
11

A.M., Docket No. 14-125 (issued March 24, 2014).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2016 is affirmed.
Issued: January 25, 2017
Washington, DC

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

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

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

5