United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

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Appearances:
Roy A. Shobert, for the appellant
Office of Solicitor, for the Director

Docket No. 10-753
Issued: December 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 27, 2010 appellant, through his representative, filed a timely appeal from the
November 12, 2009 merit decision of the Office of Workers’ Compensation Programs, which
found that his right knee injury did not arise in the course of employment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s alleged right knee injury on April 30, 2007 arose in the
course of employment.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 49-year-old aircraft painter, filed a claim for
compensation alleging that he injured his right knee on April 30, 2007 when he slipped and fell
while bowling. The injury occurred between 4:15 and 4:30 p.m. A witness saw appellant fall:
“He appeared to slip and twist landing on his back.” Appellant did not stop work.

Appellant’s supervisor stated that he had no knowledge of the alleged injury. He advised
that appellant’s regular work hours were 7:00 a.m. to 3:00 p.m. and that he was not injured in the
performance of duty: “Employee was bowling.” The supervisor indicated that appellant first
received medical care on June 4, 2007 from Dr. William M. McAfee, a family physician, but no
report from Dr. McAfee appears in the record.
The earliest medical report following the incident at the bowling alley was a February 29,
2008 report from Dr. John W. Ellis, a family physician, who stated that “the injury occurred to
[appellant’s] right knee when he slipped and fell while bowling.” Dr. Ellis did not provide a
diagnosis of appellant’s right knee condition.
A claims review investigator for the agency found that the bowling activity was
sanctioned by the employing establishment. An incident report described the activity as
“bowling in a partnership gathering, agency & union.”
The Office asked appellant for additional information to support his claim. It noted,
among other things, that it received no diagnosis of any condition resulting from the April 30,
2007 injury or a physician’s opinion on causal relationship.
In a July 23, 2007 decision, the Office denied appellant’s claim on the grounds that there
was no evidence of a connection between his federal employment and the described incident that
led to the claimed injury.
Appellant’s representative requested reconsideration, contending that appellant was the
1 Vice President of AFGE Local 916 and was in full-time representational duty in accordance
with the Master Labor Agreement, Article 4, section 4.13: “100 percent official time will be
granted to full-time representatives in the quantities listed below to each installation at each
installation to perform the specific functions listed in section 4.06.” Appellant’s representative
explained that section 4.06, item 13, listed the following as one of the functions for which a
reasonable amount of official time was authorized: “Participate in partnership activities as
authorized by the [p]artnership [c]ouncil.” He argued that appellant was on official business at
the time of injury because the bowling outing was an activity that the partnership council
approved for the purpose of management and labor to get to know each other better, and because
appellant was a full-time representative and was present at the bowling outing as a representative
for the union.
st

The employing establishment provided a timesheet showing that appellant worked from
7:00 a.m. to 3:00 p.m. on April 30, 2007, the day of the bowling incident. The employer
contended that the incident occurred more than a reasonable amount of time after appellant’s
shift was over.
Appellant’s representative countered that the hours shown on the timesheet were
artificial, that it came from a program the supervisor used as a convenience to put time in for
pay, as though appellant were working as a painter for the shop. He explained that, if the
supervisor deviated from this time, the program would show that appellant worked overtime.
Appellant’s representative advised that it was the union president who set appellant’s work
hours, and he submitted a note from the president stating that appellant’s work hours were from

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9:00 a.m. to 5:00 p.m. and had been since November 2005. Appellant was allowed to flex his
work hours to meet labor-management duties. His representative submitted the timesheet
appellant actually signed for the pay period in question, one that showed 80 hours worked with
no sign-in or sign-out times. “So how would [appellant’s] [s]upervisor know what time he came
in and left for the day?”
In an October 22, 2007 decision, the Office denied modification of its prior decision. It
found that a bowling meeting set up for management and labor to get to know each other better
did not fall within the guidelines of representational functions.
Appellant sought reconsideration. Relying again on language from the Master Labor
Agreement designating functions for which a reasonable amount of official time is authorized,
his representative argued that appellant was performing representational duties while
participating in the Partnership Bowling Tournament, a partnership council approved function.1
The employing establishment noted that, even if appellant’s hours were 9:00 a.m. to 5:00
p.m., his official federal timesheet, which appellant signed, showed that he was paid only
through 3:00 p.m. on the date of the alleged injury. The employer further noted that appellant
submitted no evidence to establish that he was bowling in a “Partnership Bowling Tournament.”
In an October 24, 2008 decision, the Office again denied modification of its prior
decisions. It found that the mere undertaking of a representation function, such as an agencyunion partnership gathering at a bowling alley, which, if established, might entitle appellant to
official time during a period when he was in duty status, would not, without evidence of a
demonstrable and significant employer benefit beyond that normally associated with that
activity, entitle him to coverage under the mutual benefit theory.
On reconsideration, appellant’s representative submitted evidence that the bowling
activity on April 30, 2007 was a partnership event. He submitted a copy of the partnership
agreement between the agency and the union. The agreement was “grounded in a shared,
overriding interest to deliver the highest quality product and services while reducing costs to the
[agency] customers.” The parties committed themselves “to pursue solutions that promote
partnership, to achieve increased quality and productivity, customer service, mission
accomplishment, efficiency, quality of life, employee empowerment, organizational
performance, and military readiness, which considering the legitimate interests of both labor and
management.” The agreement listed seven principles upon which a sound relationship is built
and charged the partnership council to lead the implementation of those principles by:
(1) applying them in dealing with each other on matters that affect the civilian workforce as a
whole; (2) developing comprehensive staff evaluations of collective workplace issues and
development of recommendations for the [agency] director; (3) establishing a framework for
1

Section 4.06 of the agreement states: “When work conditions are such that the steward/official may be excused
from work, a reasonable amount of official time will be granted. Representatives will provide the supervisors
sufficient information to allow the supervisors to understand the complexity of issues for which the official time is
requested. It is the parties’ intent that any official time agreed to by the parties authorized under section 7131(d) of
the Federal Service Labor Management Relations Statute will be encompassed within one of the following
activities.”

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labor-management relations and collective bargaining at all subordinate levels; (4) developing
measures of organizational performance and evaluating improvements in those measures that
result from the council; (5) developing a comprehensive strategy to train management and union
officials in consensual methods of dispute resolution; and (6) developing a nonadversarial
atmosphere to enhance open discussion, specifically, prohibiting retribution by any of the parties
concerning the discussions or actions of the [p]artnership [c]ouncil.”
In a November 12, 2009 decision, the Office reviewed the merits of appellant’s claim and
again denied modification. It found that a bowling tournament did not fall within the scope of
representational functions. The Office further found that appellant’s presence at the bowling
alley for the agency-union function could not be considered of mutual benefit and did not place
him in the performance of his official union duties.
On appeal, appellant’s representative recounted the factual history of the case.
contends that appellant met his burden of proof to establish a compensable injury.

He

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.2 The
Board has interpreted the phrase “sustained while in the performance of his duty” as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”3 “Arising in the course of employment”
relates to time, place and work activity: To arise in the course of employment, an injury must
occur at a time when the employee may reasonably be said to be engaged in his employer’s
business, at a place where he may reasonably be expected to be in connection with his
employment, and while he was reasonably fulfilling the duties of his employment or engaged in
doing something incidental thereto.4
This alone is not sufficient to establish entitlement to compensation. The employee must
also establish an injury “arising out of the employment.” To arise out of employment, the injury
must have a causal connection to the employment, either by precipitation, aggravation or
acceleration.5
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim. Thus, when an employee claims that he sustained an injury in
the performance of duty, he must submit sufficient evidence to establish that he experienced a

2

5 U.S.C. § 8102(a).

3

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
4

Carmen B. Gutierrez, 7 ECAB 58, 59 (1954).

5

Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp (Joseph L.
Barenkamp), 5 ECAB 228 (1952).

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specific event, incident or exposure occurring at the time, place and in the manner alleged. He
must also establish that such event, incident or exposure caused an injury.6
Causal relationship is a medical issue,7 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,8 must be one of reasonable medical certainty,9
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.10
With respect to whether injuries arising in the course of union activities are related to
employment, the general rule is that union activities are personal, that attendance at a union
meeting, for example, is exclusively for the personal benefit of the employee and devoid of any
mutual employer-employee benefit that would bring it within the course of employment. Larson
notes, however, that it is being increasingly held that an activity undertaken by an employee in
the capacity of union officer may simultaneously serve the interests of the employer.11
The Office recognizes that certain representational functions performed by employee
representatives of exclusive bargaining units benefit both the employee and the agency. Its
stated policy is that employees performing representational functions entitling them to official
time are in the performance of duty and entitled to all benefits of the Act if injured in the
performance of those functions. Consistent with Larson, activities relating to the internal
business of a labor organization, such as soliciting new members or collecting dues, are not
included.12
When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether the employee
had been granted official time or, in emergency cases, would have been granted official time if
there had been time to request it. If so, the claimant should be considered to have been in the
performance of duty.13
6

E.g., John J. Carlone, 41 ECAB 354 (1989).

7

Mary J. Briggs, 37 ECAB 578 (1986).

8

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

9

See Morris Scanlon, 11 ECAB 384, 385 (1960).

10

See William E. Enright, 31 ECAB 426, 430 (1980).

11

2 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 27.03(3) (2006).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997).

13

Id. at Chapter 2.804.16.e.

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If the agency states that the employee was not performing an activity for which official
time is allowed, the Office should issue a letter warning the claimant that the case will be denied
unless addition information is provided, and allowing 30 days for a response. If the claimant
provides evidence contradicting the agency’s position, the official superior should be asked to
reply to this evidence, providing documentation in the form of appropriate regulations, executive
order or union agreement covering the specific situation. The Office will accept this ruling of
the agency as to whether a representative was entitled to official time, unless this ruling is later
overturned by a duly authorized appellate body.14
ANALYSIS
Appellant claimed injury on April 30, 2007 while performing representational functions.
The employer contended that he was off the clock and therefore not on official time.15 The
employing establishment produced evidence showing that appellant worked from 7:00 a.m. to
3:00 p.m. on April 30, 2007. Appellant explained that the time kept by his supervisor was an
artificial convenience that did not represent his actual hours on April 30, 2007. He provided
evidence that his regular work hours, set by the union president, were 9:00 a.m. to 5:00 p.m.,
which would place his 4:15-4:30 p.m. injury on the clock and therefore on official time, as he
was a full-time union representative. The employer noted that, even if appellant’s hours were
9:00 a.m. to 5:00 p.m., his official federal timesheet, which appellant signed, showed that he was
paid only through 3:00 p.m. on the date of the alleged injury. So he was not in a regular-duty
status at the time of the alleged injury.
Office procedures are clear: When there is a dispute between the employing
establishment and the claimant as to whether the claimant was entitled to official time at the time
of the alleged injury, the Office will accept the employer’s ruling, unless that ruling is overturned
by a duly authorized appellate body. It is appellant’s burden to establish the time element of
work connection, and he has not met his burden.
The employing establishment’s argument aside, appellant has not established when he
actually began work on April 30, 2007 or when he actually stopped work that day. He did not
sign in or out, which led his representative to observe: “So how would [the] [s]upervisor know
what time he came in and left for the day?” Without documentation to establish what time
appellant came and left for the day, neither the supervisor nor the Office can determine with any
certainty whether the alleged injury occurred on the clock.16 Lost in the development of the time
issue is the fact that appellant never specifically alleged what time he came to work on April 30,
2007 and what time he left. Though for obvious reasons of abuse, the Office cannot allow a
claimant to self-certify his work hours after the fact to cover an alleged injury.

14

Id.

15

See Bernard Redmond, 45 ECAB 298 (1993) (finding that the claimant could not be entitled to official time at
9:00 a.m. because he finished his tour of duty at 8:00 a.m.).
16

Although the union president indicated that appellant’s hours were 9:00 a.m. to 5:00 p.m. as a general matter,
he provided no supporting documentation. More to the point, he provided no probative evidence of when appellant
came to work on April 30, 2007 and when he left.

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The place element of work connection is not in dispute. The alleged injury occurred at
the Tinker Bowling Center on base, but with only one of the two overt physical indicia of work
connection established, the activity element of work connection must bear greater weight in
establishing whether appellant was in the course of employment at the time of the alleged
injury.17
Appellant has submitted some evidence to support that the bowling outing in question
was approved by the partnership council, but there is no direct documentation of this fact. The
record does not contain the relevant minutes recorded by the labor relations officer and approved
by the council co-chairs. Under the partnership agreement, one of the council co-chairs is the
employing establishment’s executive director. If the executive director authorized the bowling
outing as a partnership activity, such authorization might establish sufficient employer
sponsorship and benefit to bring the alleged injury within the course of appellant’s employment.
The Board will set aside the Office’s November 12, 2009 decision and remand the case
for further factual development to determine whether the employer, through the executive
director and co-chair of the partnership council, effectively extended appellant’s “course of
employment” to include the April 30, 2007 bowling outing. The executive director should
address whether appellant was compelled to attend, whether his attendance was voluntary,
degree of any encouragement, how the outing was financed and advertised, whether the
participants wore bowling shirts, and whether the employer benefited from the event, beyond
general improvement of morale and good will.18 After such further development as may become
necessary, the Office shall issue an appropriate final decision on whether appellant’s injury arose
in the course of employment.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
evidence is warranted.

17

See 2 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 22.03[1] (2006) (recreational and
social activities).
18

Id. at § 22.04(2) et seq. (employer sponsorship of recreational and social activities).

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ORDER
IT IS HEREBY ORDERED THAT the November 12, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: December 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Allentown, PA, Employer
__________________________________________

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

Docket No. 07-219
Issued: April 20, 2007

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 31, 2006 appellant filed a timely appeal from the May 25, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of appellant’s claim.
ISSUE
The issue is whether appellant’s mitral valve condition was causally related to his federal
employment.

FACTUAL HISTORY
On November 15, 2003 appellant, then a 49-year-old transportation security screener,
filed a claim alleging that his mechanical mitral valve, implanted in January 2003, developed
leaks by October 2003 as a result of repetitive job stress:
“As a security screener with the [Transportation Security Administration] TSA, I
was often called upon to stoop, kneel, crouch, bend, reach and lift while
performing my duties of screening passengers, airline selectees and their carry-on
luggage. We reach, bend and lift luggage onto an [x]-ray conveyor belt, as well
as carrying it to a designated area for physical bag search. In the process of
screening passengers we often stoop, bend, kneel and crouch as we waive a hand
held metal detecting wand from the top of the passenger’s head to the bottom of
their feet. It is these repetitive motions and duties that I feel contributed to my
heart condition.”
Appellant added: “Prior to my employment with TSA I worked for 11 years as a
production manager mainly in a cubicle environment. It wasn’t until I started the physical
requirements of a security screener in July 2002 that I began to notice my health deteriorate. In
December 2002, I was diagnosed with a bleeding ulcer and severe mitral valve regurgitation.”1
Medical reports showed appellant’s mechanical mitral valve with two leaks, one with
mild and the other with moderate mitral regurgitation. Appellant also had trace to mild aortic
and tricuspid regurgitation. In October 2003, he underwent a repeat mitral valve replacement.
On October 23, 2003 Dr. William J. Hammer, a Board-certified internist specializing in
cardiovascular diseases, addressed the issue of causal relationship:
“[Appellant] had a recent mitral valve replacement and returned to work. The
mitral valve has developed what is known as a paravalvular leak, most likely from
the stitches that held the valve from coming loose.
“This can be a consequence of the operation or it may be related to the
development of high pressure resulting from his lifting. As in all cases of this, it
is difficult to assign a cause and effect relationship, but I think that we can think
that the lifting may have contributed to the mitral valve dysfunction.”
The assistant federal security director clarified that appellant’s TSA employment began
August 3, 2002. He stated that, after surgery, the employing establishment fully complied with
physician orders:
“He worked primarily at [g]ate [d]uty until gate screening was eliminated in midAugust 2003. These were light-duty assignments, with no bending, lifting or
repeated actions.

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Appellant returned to work in March 2003 with a lifting restriction of 25 pounds.

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“He has never performed baggage screening and has not been trained or certified
for baggage screening. Rather, he is certified for and assigned to the passenger
checkpoint, where ‘baggage’ is minimal and limited to carry-on bags. Hence,
very little lifting, bending or other strenuous activities.”
In a decision dated March 5, 2004, the Office denied appellant’s claim for compensation.
The Office found that the medical evidence failed to establish a causal relationship between the
established work-related events and the claimed medical condition.
On April 1, 2004 Dr. Hammer wrote to clarify his position on appellant’s mitral valvular
disease:
“It has been established that [appellant] had mitral valve prolapse prior to his
change in employment. Mitral valve prolapse is characterized by a disorder in
which there is an increase in the amount of spongiosa tissue in the mitral valve
and the valve becomes much more ‘rubbery.’ The spongiosa tissue is the elastic
part of the valve and the fibrosa is the skeleton of the valve. When a valve like
this is put under increasing pressure, it is subject to mitral valve disruption.
“Prior to a change in his employment, [appellant’s] mitral valve disease was mild
to moderate. Unfortunately, after he was required to do increasing physical work
at his position, which included lifting hundreds of bags of luggage, stooping,
bending, kneeling and crouching, etc., evaluation of his mitral valve showed that
the mitral valve had deteriorated significantly.
“This is not surprising. Increasing afterload pressures that occur with physical
exercise, as described above, put unusual tension on a mitral valve. Valves that
are subject to tear or disruption may respond by tearing and becoming more
redundant, hence leading to more mitral regurgitation. [These], I believe, are the
events that occurred that resulted in severe mitral regurgitation in [appellant’s]
condition.
“The results of this, of course, are that the valve must be repaired. Hence, the
inevitable mitral valve replacement that occurred in January 2003, as well as the
subsequent mitral valve replacement in October 2003.
“It is critical that [appellant] not return to this type of work which, in my
judgment, could be considered causative to the development of his mitral valve
regurgitation.”
In testimony before an Office hearing representative on November 30, 2004, appellant
explained that he was diagnosed with mitral valve prolapse before he began working at the
employing establishment. He stated that it showed up shortly after he had lost a lot of weight
due to a gastric bypass around August 2001.2 Appellant stated that sometime in October 2002 he
started getting chest pains and fatigue and shortness of breath. It was in October 2002 that
2

Appellant stated that he lost close to 220 pounds.

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Dr. Hammer performed an echogram, the results of which were a concern. Appellant testified
that, following his initial surgery in January 2003, he returned to full duty probably by
May 2003. He stated that he then moved hundreds of bags a day, “anywhere from purses to
carry-on luggage.” Although there was no scale at the security checkpoint, appellant stated that
some of the items he lifted exceeded 50 pounds. He further explained that he lifted baggage off
the x-ray conveyor belt to an inspection table for random sampling. Appellant stated that he
worked until October 24, 2003. His repeat surgery was on October 28, 2003.
On March 16, 2004 Dr. Hammer again addressed the issue of causal relationship:
“[Appellant] had mitral valve replacement for the development of significant
mitral valve regurgitation.
“When his job is described, it is one of increased intrathoracic pressure and high
systemic pressures from lifting most of the day. It is known that mitral
regurgitation may be precipitated in patients with such increases in tension on the
valve.
“It is certainly conceivable that his initial events, with the development of
significant mitral regurgitation, were work related and I would be happy to
discuss that further with you if you would like.”
In a decision dated August 17, 2005, the Office hearing representative affirmed the denial
of appellant’s claim for compensation. The hearing representative found that Dr. Hammer’s
reports were of diminished probative value because they failed to discuss appellant’s significant
medical history, including a gastric bypass for morbid obesity and use of Redux for weight loss,
a medication taken off the market as a likely cause of heart valve problems. The hearing
representative also noted that Dr. Hammer failed to discuss the rheumatic changes found in
appellant’s valve and its impact on the need for valve replacement surgery. Further, the hearing
representative found that Dr. Hammer did not have a full understanding of appellant’s position
prior to and after the initial valve replacement. She also noted that in none of his reports
contemporaneous to the January and October 2003 surgeries did Dr. Hammer advise that
occupational factors played a part in appellant’s condition or that appellant should not return to
work with the employing establishment.
On January 17, 2006 Dr. Hammer once more addressed the issue of causal relationship:
“I was very disappointed to hear that [appellant] has not been considered for
compensation. I would like to point out that it is my feeling that the original
mitral regurgitation was not related to fen-phen ingestion. The fen-phen question
has been considerably debated in the literature and I believe that [appellant’s]
valve was in fact a deformed valve from other causes, possibly even rheumatic in
etiology. It is the development of the lifting pressures that occur on the natural
valve from the high-unit thoracic pressure, as well as high systemic pressure that
can cause tension on the valve. The increasing afterload as stated before can put
tension on a valve that is already distorted causing more disease to occur.
Furthermore, if there is a problem with the prosthesis in that one of the areas of

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the sewing ring is loose, that area can be magnified and the leak magnified
significantly by similar movements and pressure changes. I think that there is a
reasonable [case] to be made for [appellant’s] disease to have at least a role
played by the work for which he was engaged. I would be happy to answer any
detailed questions, although it is difficult to respond to the vagaries of the denial.
Please do not hesitate to call me because I think that this is something that is
appropriate and not cavalier in its request.”
In a decision dated May 25, 2006, the Office reviewed the merits of appellant’s claim and
denied modification of its prior decision. The Office found that Dr. Hammer’s January 17, 2006
report was not based on a factual and accurate medical background, was not well reasoned and
was vague and speculative.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of his claim. When an employee claims that
he sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty7
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
ANALYSIS
Certain facts are established. As a transportation security screener, appellant did not
perform baggage screening. He was not trained or certified to do so. Appellant was instead
assigned to the passenger checkpoint, where he screened passengers and their carry-on bags. He
3

5 U.S.C. §§ 8101-8193.

4

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton,
40 ECAB 1143 (1989).
5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

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waived a metal-detecting wand from the top of the passenger’s head to the bottom of their feet
and in the process would stoop, bend, kneel or crouch. Appellant also lifted carry-on bags to an
x-ray conveyor belt and carried bags to a designated area for physical bag search on a rotational
basis.
Other facts are not established. There is no evidence to substantiate that appellant lifted
carry-on bags exceeding 50 pounds, as he testified before the Office hearing representative or
luggage weighing up to 100 pounds, as his attorney asserted in his application for review. This
estimate is not reliable. Appellant testified that there was no scale at the security checkpoint.
According to the assistant federal security director, he performed very little lifting, bending or
other strenuous activities.
Following his initial valve replacement in January 2003, appellant worked primarily at
gate duty, until gate screening was eliminated in mid-August 2003. Again, according to the
assistant federal security director, these were light-duty assignments, with no bending, lifting or
repeated actions. The employing establishment fully complied with the only physical restriction
placed on appellant, which was lifting 25 pounds.
Appellant tells a different story. He testified that he returned to full duty probably by
May 2003, which he began moving hundreds of bags a day, “anywhere from purses to carry-on
luggage,” some of which exceeded 50 pounds. The Board finds that the weight of the evidence
does not substantiate this account of events.
It is against this factual background that Dr. Hammer, appellant’s cardiologist, offered his
opinion on causal relationship. Dr. Hammer premised his opinion on high systemic pressure
resulting from lifting at work.9 But if he based his opinion on the assumption that appellant
lifted 50- to 100-pound pieces of luggage most of the day, his opinion carries little weight. This
is not established. Medical conclusions based on inaccurate or incomplete histories have little
probative value.10 A significant deficiency of Dr. Hammer’s reports is that he did not accurately
describe what appellant did as a transportation security screener, either before the surgery in
January 2003 or upon his return to light duty. This diminishes the value of his opinion. If he
believes that high unit thoracic pressure or high systemic pressure from lifting and other physical
activities was sufficient to put unusual tension on the mitral valve, then he needs to support the
premise with a clear description of the implicated work activities.
Another deficiency in Dr. Hammer’s reports is the speculative nature of his opinion. He
explained that the increasing afterload can put tension on a valve that is already distorted, causing
more disease to occur. But Dr. Hammer did not show that this was anything more than a
possibility. He offered no evidence that screening passengers for several months beginning
August 2002 or performing light duty in 2003 caused any amount of disease to occur.

9

In one report he also mentioned stooping, bending, kneeling and crouching.

10

See James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because
the history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987)
(addressing factors that bear on the probative value of medical opinions).

6

Dr. Hammer also explained that movements and pressure changes similar to those appellant
described in his work can magnify a paravalvular leak. But again, he offered no evidence that
this did in fact occur.
The medical opinion of a physician supporting causal relationship does not have to reduce
the cause or etiology of a disease or condition to an absolute medical certainty, but neither can such
opinion be speculative or equivocal.11 Dr. Hammer has explained a pathological process that can
conceivably cause more disease to occur, a process that can conceivably magnify a paravalvular
leak. For appellant to establish his entitlement to workers’ compensation benefits, Dr. Hammer
must show to a reasonable medical certainty that this is what happened to him. An award of
compensation may not be based on surmise, conjecture or speculation or upon appellant’s own
belief of causal relationship.12 Temporal relationships are not enough.13 The mere fact that a
condition manifests itself or worsens during a period of federal employment raises no inference of
causal relationship between the two.14
Dr. Hammer saw appellant in October 2002, only two to three months after he began his
job as a security screener, but he gave no indication there could be some causal connection
between this job and appellant’s mitral regurgitation. After the valve replacement in January 2003,
he found it reasonable to release appellant in mid-March to return to his duties with a lifting
restriction of 25 pounds. It was Dr. Hammer who allowed appellant to continue working in his
federal employment up to October 23, 2003, only days before the scheduled repeat surgery. If, as
he later reported, it was critical for appellant not to return to that type of work because it could be
considered causative to the development of his mitral valve regurgitation, Dr. Hammer should
explain why this was not an issue before the January 2003 and October 2003 surgeries.
The Board will affirm the Office’s decision denying appellant’s claim for compensation
benefits. Appellant has met his burden to establish certain facts about his physical activities at
work, but he has not submitted a well-reasoned medical opinion, based on a complete and
accurate history, showing a causal relationship between his established duties as a transportation
security screener and his mitral valve dysfunction.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his mitral
valve condition was causally related to his federal employment.
11

Philip J. Deroo, 39 ECAB 1294 (1988); Jennifer Beville, 33 ECAB 1970 (1982) (statement of a Board-certified
internist that the employee’s complaints “could have been” related to her work injury was speculative and of limited
probative value).
12

Shirloyn J. Holmes, 39 ECAB 938 (1988); Pamela A. Harmon, 37 ECAB 263 (1986); Vernon O. Fein,
34 ECAB 78 (1982). See also Manuel Garcia, 37 ECAB 767 (1986).
13

Thomas D. Petrylak, 39 ECAB 276 (1987).

14

Steven R. Piper, 39 ECAB 312 (1987). That an employee suffers a heart attack at work, for example, does not
in itself imply that the work caused or contributed to the attack. Mere temporal relationships are thus distinguished
from relationships of causation.

7

ORDER
IT IS HEREBY ORDERED THAT the May 25, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2007
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., claiming as widow of R.A., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S.
GEOLOGICAL SURVEY OFFICE, Pasco, WA,
Employer
__________________________________________

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

Docket No. 08-1904
Issued: February 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 3, 2007 denying her claim for compensation
and the January 30, 2008 nonmerit decision denying her request for merit review. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the employee’s work activities on January 3, 2005
contributed to his death; and (2) whether the Office properly refused to reopen appellant’s case
for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 10, 2005 appellant filed a claim for compensation by a widow (CA-5), alleging
that her husband’s myocardial infarction and/or cardiac arrhythmia and subsequent death was
caused by exposure to extreme weather conditions to which he was exposed on January 3, 2005,

while on temporary duty in John Day, Oregon. Prior to his death, appellant’s 47-year-old
husband was employed as a hydrological technician. She described the nature of the injury
which caused his death as, “cold weather disability, caused heart attack and/or arrhythmia.”
The record contains a death certificate, dated January 5, 2005, reflecting that the
employee died on January 4, 2005 at 1:00 a.m. of natural causes. The cause of death was listed
as a myocardial infarction.
In an undated statement, the employee’s supervisor indicated that the employee was on
travel status on January 3 and 4, 2005, on a routine trip to John Day, Oregon. The employee’s
position required him to work outdoors, at times under severe conditions. On January 3, 2005 he
drove for approximately three hours from Pasco, Washington to the field site in north-central
Oregon. The employee field notes reflected that he was out of his truck for a little over an hour
at the field site, where the air temperature was 32 degrees and the water temperature was 48
degrees. He waded into a creek, which was six inches deep at the deepest, where he remained
for 11 minutes. Mark Berry, the manager of a demonstration ranch and the primary user of the
data collected, spoke with the employee during his visit to the field site on January 3, 2005.
According to him, the employee made no mention of any health concerns that day. The
employee returned to John Day, Oregon, which is about a three-hour drive from the field site and
checked into his motel room.
Appellant submitted a February 9, 2005 report from Dr. H. Matt Smith, a treating
physician, who examined the employee on two occasions in 2004. Dr. Smith noted the coroner’s
presumption that the cause of death was myocardial infarction and/or cardiac arrhythmia. He
stated that the deceased had been a smoker with high blood pressure and high cholesterol,
conditions for which he was treated. Noting that the employee was exposed to temperatures in
the upper 20’s and lower 30’s on January 3, 2005, Dr. Smith indicated that cold weather can
cause blood vessel constriction and, along with exertion, can aggravate cardiac ischemia and
produce heart arrhythmias. He stated, “I suspect that [the employee’s] work [on January 3,
2005] did play a role in his death. I suspect that if [the employee], rather than working in a
strenuous and freezing environment, were sitting in an office doing computer or paper work, that
he would be still among us.”
The record contains a statement signed “Marty Larson, Dreamer’s Lodge,” reflecting
that, pursuant to data from the regional airport, the temperature in John Day, Oregon on
January 3, 2005 ranged from a low of 18 degrees to a high of 33 degrees. On January 4, 2005
the temperature ranged from a low of 21 degrees to a high of 25 degrees.
On February 1, 2006 the Office informed appellant that the evidence submitted was
insufficient to establish her claim. Appellant was advised to submit details surrounding the
employee’s job activities on the day of death, as well as additional medical evidence supporting
her claim that his death was a result of an injury or medical condition caused by exposure on the
job.
In a March 23, 2004 report, Dr. Smith noted an elevated blood pressure, a “racing of the
heart,” and a diagnosis of hypertension. The record also contains unsigned medical notes for the
period January 18, 2001 to May 27, 2003.

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In a report dated January 8, 2005, Dr. Smith indicated that the employee had been found
in a John Day, Oregon hotel room, dead from an apparent heart attack. He noted that a few
grams of marijuana had been found in the room with the employee.
In an undated statement, appellant reported that on January 2, 2005 her husband was at
home with his family following the Christmas holidays. On January 3, 2005 the employee
traveled to John Day, Oregon for work. At 7:30 p.m. that evening, he complained to appellant
by telephone that he “could not get warm.” The time of the employee’s death was estimated to
be 1:00 a.m.
On June 1, 2006 the Office asked the district medical adviser to review the record and
provide an opinion as to whether the employee’s death was causally related to his employment.
In a report dated June 11, 2006, the medical adviser indicated that he was unable to determine
whether the employee’s death was due to his job activities. He stated that preexisting high blood
pressure, high cholesterol and cigarette abuse could have been responsible for the fatal
arrhythmia or myocardial infarction. However, as to whether the employee’s work-related duties
may have aggravated an underlying cardiac condition which led to his death, the medical adviser
recommended that the case file be referred to a cardiologist for an opinion.
In a July 28, 2006 report, Greg Ruppert, Pasco, the Washington field office chief, stated
that, on the day prior to his death, the employee drove three hours to a field site in north-central
Oregon, in a government-owned 4-wheel drive pick-up truck. At approximately 1:00 p.m., after
putting on his coat and hip-waders, the employee would have walked 200 feet to a very small
stream (3 feet wide, ½ foot deep), where he stood for 11 minutes. Mr. Ruppert quoted the
employee’s field notes, which indicated that the air temperature was 32 degrees and the water
temperature was 48 degrees. The field notes reflected that the employee visited only one field
site on January 3, 2005.
By decision dated September 8, 2006, the Office denied appellant’s claim, finding that
the medical evidence did not establish that the employee’s federal job duties caused or
contributed to his death.
On September 21, 2006 appellant requested an oral hearing. In an April 17, 2007 letter,
her representative contended that the Office should further develop the medical evidence in
accordance with the recommendation of the district medical adviser. At the April 16, 2007
hearing, the representative argued that the Office improperly ignored the medical examiner’s
recommendation for a second opinion, as appellant had presented a prima facie case.
By decision dated July 3, 2007, an Office hearing representative affirmed the
September 8, 2006 decision, finding that Dr. Smith’s report was insufficiently rationalized to
establish causal relation. On January 17, 2008 appellant requested reconsideration.
Appellant submitted a November 22, 2006 report from Dr. Smith, who opined that the
employee’s job activities contributed to his death. Dr. Smith stated that, on the day he died, his
patient had been “working a long, hard day -- hiking up and down hills in subfreezing
temperatures in an area where there was no easily available potable water.” He indicated that, at
times, he would be required to stand in near freezing water up to his thighs in order to gauge

3

stream flows and collect specimens. Dr. Smith stated that, “during his vigorous hiking [] one of
the soft plaques in one of his coronary arteries ruptured, a clot developed and that later that night
while in a warm hotel room that the clot achieved a critical narrowing of the affected coronary
artery, caused damage to his heart and resulted in a fatal heart arrhythmia.” He opined that the
likely presence of dehydration and the constrictive effect of the cold weather aggravated the
situation and put an additional strain on the employee’s heart.
By decision dated January 30, 2008, the Office denied appellant’s request for
reconsideration, on the grounds that the evidence submitted did not warrant merit review. It
found that Dr. Smith’s report was repetitive and irrelevant.
LEGAL PRECEDENT -- ISSUE 1
An award of compensation in a survivor’s claim may not be based on surmise, conjecture
or speculation or an appellant’s belief that the employee’s death was caused, precipitated or
aggravated by the employment.1 Appellant has the burden of establishing by the weight of the
reliable, probative and substantial medical evidence that the employee’s death was causally
related to an employment injury or to factors of his employment. As part of this burden, she
must submit a rationalized medical opinion, based upon a complete and accurate factual and
medical background, showing a causal relationship between the employee’s death and an
employment injury or factors of his federal employment. Causal relationship is a medical issue
and can be established only by medical evidence.2
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the employee’s death and the accepted conditions or
employment factors identified by the employee.3
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision as to whether the
employee’s death was causally related to his employment.
Medical evidence of record includes reports from the employee’s treating physician,
Dr. Smith. On March 23, 2004 he noted an elevated blood pressure, a racing of the heart and a
diagnosis of hypertension. On February 9, 2005 Dr. Smith stated his belief that the employee’s
job activities on January 3, 2005 contributed to his death. Noting the coroner’s determination
1

Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

2

Mary J. Briggs, 37 ECAB 578 (1986); Umberto Guzman, 25 ECAB 362 (1974).

3

Donna L. Mims, 53 ECAB 730 (2002).

4

that the cause of death was myocardial infarction and/or cardiac arrhythmia, he stated that
appellant was a smoker and had preexisting risk factors, including high blood pressure and high
cholesterol. Dr. Smith explained that cold weather can cause blood vessel constriction and,
along with exertion, can aggravate cardiac ischemia and produce heart arrhythmias. Noting that
the employee was exposed to temperatures in the upper 20’s and lowers 30’s on January 3, 2005;
he opined that his work on that day played a role in his death.
The Office asked the district medical adviser to review the record and provide an opinion
as to whether the employee’s death was causally related to his employment. The district medical
adviser was unable to determine whether the employee’s death was causally related to his job
activities and recommended that the employee’s case file be referred to a cardiologist for an
opinion as to whether his job activities contributed to his death. He stated that work-related
duties may have aggravated an underlying cardiac condition, which led to the employee’s death.
However, the Office did not seek the opinion of a cardiologist, or further develop the medical
evidence.
Proceedings under the Act are not adversarial in nature; nor are the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.4 Although
Dr. Smith did not provide sufficient rationale to discharge appellant’s burden of proving by the
weight of the reliable, substantial and probative evidence that the employee’s January 4, 2005
death was causally related to employment activities, his reports raise an uncontroverted inference
of causal relationship sufficient to require further development of the case record by the Office.5
Moreover, the Office did not pursue the district medical adviser’s recommendation to obtain an
opinion on causal relationship from a cardiologist. Once it undertakes development of the
record, it has the responsibility to do so in a proper manner.6 Therefore, the Board will remand
the case for further development of the medical evidence.
On remand, the Office should refer the case record and a statement of accepted facts to an
appropriate medical specialist for an evaluation and a rationalized medical opinion on whether
the employee’s January 4, 2005 death was causally related to employment activities. After such
further development of the case record as the Office deems necessary, the Office shall issue a de
novo decision.7
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether the
employee’s work activities on January 3, 2005 caused or contributed to his death.

4

William J. Cantrell, 34 ECAB 1223 (1983).

5

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

See Henry G. Flores, Jr., 43 ECAB 901 (1992); see also Charles J. Jenkins, 40 ECAB 362 (1988).

7

In light of the Board’s decision on the first issue, the second issue is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 30, 2008 and July 3, 2007 are set aside and the case is
remanded for action consistent with the provisions of this decision.
Issued: February 20, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES, JR., VETERANS AFFAIRS
HOSPITAL, Hines, IL, Employer
__________________________________________

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

Docket No. 13-1087
Issued: October 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 3, 2013 appellant filed a timely appeal from the December 7, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which granted a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.
ISSUE
The issue is whether appellant has a seven percent impairment of his right upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On February 8, 2011 appellant, a 45-year-old supply technician, sustained a traumatic
injury to his right shoulder in the performance of duty while lifting boxes from a cart to a pallet.
1

5 U.S.C. § 8101 et seq.

A magnetic resonance imaging (MRI) scan obtained on February 25, 2011 showed a large near
full-thickness undersurface tear of the distal supraspinatus tendon.
OWCP accepted appellant’s claim for a partial tear of the right rotator cuff and right
rotator cuff impingement syndrome. Appellant underwent arthroscopic acromioplasty, distal
clavicle resection and rotator cuff repair on May 13, 2011. The operative report described the
area of the tear as a very high-grade, partial thickness tear with just the membrane and tissue left
intact.
Appellant filed a claim for a schedule award. Dr. Mark A. Neault, the attending Boardcertified orthopedic surgeon, examined appellant on June 11, 2012 and found that he had reached
maximum medical improvement. Appellant had no significant discomfort with activities of daily
living. His shoulder was not affecting his sleep pattern. “It gets a little stiff and achy at times.”
Appellant had no problem lifting or carrying, though he was trying not to carry too much. He
took no pain medication and had no sleep issues due to his shoulder. Objective clinical findings
were essentially normal. Dr. Neault released appellant to return to full duty with no restrictions
on activity and he was released from care.
On August 3, 2012 Dr. Mark Sokolowski, a consulting Board-certified orthopedic
surgeon, evaluated appellant’s permanent impairment. He noted that appellant had a large
full-thickness rotator cuff tear. Dr. Sokolowski found that appellant had some limitation in range
of motion on the right relative to the left with some episodic stiffness that precluded him from
full participation in activities of daily living. “He still has pain on occasion as well.”
Based on a diagnosis of rotator cuff injury, full-thickness tear, Dr. Sokolowski gave a
default impairment rating of five percent of the right upper extremity. He increased this rating to
seven percent based on appellant’s functional history and the February 25, 2011 MRI scan,
which confirmed the tear.
An OWCP medical adviser reviewed Dr. Sokolowski’s impairment evaluation and found
that it was accurate.
On December 7, 2012 OWCP issued a schedule award for a seven percent impairment of
appellant’s right upper extremity.
On appeal, appellant notes that his work injury caused him a great amount of pain, as
well as disability before and after surgery. He underwent physical therapy for nearly nine
months. “To-date I still experience pain and discomfort.”
LEGAL PRECEDENT
The schedule award provision of FECA2 and the implementing regulations3 set forth the
number of weeks of compensation payable for permanent impairment from loss or loss of use of
2

Id. at § 8107.

3

20 C.F.R. § 10.404.

2

scheduled members, functions and organs of the body. FECA, however, does not specify the
manner in which the percentage of loss shall be determined. The method used in making such a
determination is a matter that rests within the sound discretion of OWCP.4
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the American Medical Association,
Guides to the Evaluation of Permanent Impairment as the appropriate standard for evaluating
schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.6
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the upper
extremities under the sixth edition of the A.M.A., Guides. The first step is to choose the
diagnosis that is most applicable for the region being assessed. Selection of the optimal
diagnosis requires judgment and experience. If more than one diagnosis can be used, the highest
causally related impairment rating should be used. This will generally be the more specific
diagnosis. Typically, one diagnosis will adequately characterize the impairment and its impact
on activities of daily living.7
Specific criteria for that diagnosis determine which class is appropriate, from no
objective problem to a very severe problem approaching total function loss. The A.M.A., Guides
assigns a default impairment rating for each diagnosis by class, which may be slightly adjusted
using such grade modifiers or nonkey factors as functional history, physical examination and
clinical studies.8
Dr. Sokolowski, the consulting orthopedic surgeon who evaluated appellant’s
impairment, based his rating on a diagnosis of rotator cuff injury, full-thickness tear. The MRI
scan obtained on February 25, 2011 showed a near full-thickness tear, which Dr. Neault, the
attending orthopedic surgeon, confirmed during surgery on May 13, 2011. OWCP accepted
appellant’s claim for a partial tear.
While appellant’s diagnosis is more precisely described as a partial-thickness tear, for
which he can receive no more than a five percent impairment rating,9 Dr. Sokolowski
impairment based on rated a full-thickness tear. The Board finds this reasonable under the
4

Danniel C. Goings, 37 ECAB 781 (1986).

5

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.a (January 2010).
7

A.M.A., Guides 387 and 389 (6th ed. 2009).

8

Id. at 497.

9

Id. at 402 (6th ed. 2009) (Table 15-5, Shoulder Regional Grid).

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circumstances. As Dr. Neault observed during the operation, appellant had a very high-grade,
partial-thickness tear with just the membrane and tissue left intact.
Table 15-5, page 403, of the A.M.A., Guides provides the impairment ratings for rotator
cuff injury, full-thickness tear. The default rating for residual loss, functional with normal
motion, is five percent. Dr. Sokolowski adjusted this rating to six percent due to appellant’s
moderate functional history10 and further adjusted the rating to seven percent due to the very
severe pathology confirmed by MRI scan on February 25, 2011.
However, if a grade modifier or nonkey factor, such as a clinical study, was used for
primary placement in the regional grid, that same specific finding may not be used again to
determine a grade modifier.11 The A.M.A., Guides gives an instructive example of this on page
418. In the example, a 44-year-old woman sustained a full-thickness rotator cuff tear that left her
with residual pain on active range of motion, which interfered with normal activities, such as
dressing and bathing. An MRI scan showed a moderate full-thickness rotator cuff tear, for which
she underwent surgical repair. The diagnosis used for her impairment rating is the same as
appellant’s rotator cuff injury, full-thickness tear with residual loss, functional with normal
motion. The default impairment rating, like appellant’s, is five percent. As the woman had pain
with normal activity, the default impairment rating is increased to six percent. But no adjustment
is made for clinical studies because, as in appellant’s case, the MRI scan was used as the basis
for diagnosis. The woman’s final rating, the A.M.A., Guides explains, is six percent.
Accordingly, the Board finds that Dr. Sokolowski improperly used the February 25, 2011
MRI scan as a grade modifier. The MRI scan was already used to place appellant within the
regional grid and it cannot be used once more to modify the default rating. This leaves appellant
with a one percent adjustment for his moderate functional history and an increase of the default
rating to six percent. The Board will modify OWCP’s December 7, 2012 schedule award to
reflect that appellant has a six percent permanent impairment of his right upper extremity and
will affirm the schedule award, as modified.
Appellant still experiences pain and discomfort, but that does not entitle him to
compensation for his permanent impairment. His impairment rating makes allowance for most
of the functional losses accompanying his pain.12 The fact that appellant continues to experience
pain and discomfort beyond the period of his schedule award is no basis for increasing his
compensation. FECA provides a limited number of weeks of compensation for permanent
impairment. For the complete loss of an upper extremity, as with amputation at the shoulder,
FECA provides a maximum of 312 weeks of compensation,13 even though the employee must
live the rest of his life without an arm. Partial losses are compensated proportionately.14

10

Id. at 406 (Table 15-7).

11

Id. at 405 and 407.

12

Id. at 25.

13

5 U.S.C. § 8107(c)(1).

14

Id. § 8107(c)(19).

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Appellant’s six percent impairment entitles him to six percent of 312 weeks, or 18.72 weeks of
compensation. This is so regardless of whether he continues to experience pain and discomfort.
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 no more than a six percent impairment of his right
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: October 21, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANTA VETERANS ADMINISTRATION
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________

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

Docket No. 21-0196
Issued: June 21, 2021

Case Submitted on the Record

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

JURISDICTION
On November 16, 2020 appellant filed a timely appeal from an August 19, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed from OWCP’s last merit decision, dated November 20, 2019, 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.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 30, 2018 appellant, than a 44-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on April 24, 2018 he injured his neck, back, and shoulder
when involved in a motor vehicle accident while in the performance of duty. On the reverse side
of the claim form, his supervisor indicated that he stopped work on the date of injury.
In a development letter dated June 1, 2018, OWCP advised appellant that additional factual
and medical evidence was necessary to establish his claim. Specifically, it noted that it did not
receive any documentation with appellant’s claim form. OWCP requested that appellant submit a
comprehensive narrative medical report and provided a questionnaire for his completion. It
afforded appellant 30 days to submit the necessary evidence.
In response, appellant submitted a police report dated April 24, 2018 regarding the motor
vehicle accident.
By decision dated July 13, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record did not contain a medical diagnosis in connection with the alleged incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On October 19, 2018 OWCP received an employing establishment incident report, which
related that appellant’s vehicle was hit from the left side by an oncoming vehicle which flipped his
vehicle over and all airbags deployed. Appellant reported a sprain/strain to his left shoulder and
lower back.
On November 5, 2018 appellant requested reconsideration of OWCP’s July 13, 2018
decision.
By decision dated November 14, 2018, OWCP denied appellant’s request for
reconsideration.
OWCP thereafter received an emergency room discharge report dated April 24, 2018 from
Dr. Jimson Smith, a Board-certified emergency medicine specialist. Dr. Smith related that
appellant was in a motor vehicle accident and complained of left shoulder pain and a minor
headache. He stated that appellant did not meet the criteria for a computerized tomography scan
or x-rays.

2

Docket No. 19-0507 (issued August 7, 2019).

2

OWCP received a report dated April 26, 2018 from Dr. Tawian M. Livingston, a Boardcertified internist. Dr. Livingston related that appellant was in a motor vehicle accident and had
back, shoulder, and neck pain.
On January 8, 2019 appellant filed a timely appeal with the Board. By decision dated
August 7, 2019, the Board affirmed the July 13 and November 14, 2018 OWCP decisions.3
On September 9, 2019 appellant requested reconsideration and submitted additional
evidence.
In a letter dated April 26, 2018, Dr. Livingston held appellant off work until May 7, 2018
due to the accident. He released appellant to return on May 8, 2018 on light duty with no lifting.
Appellant also submitted an x-ray report dated May 18, 2018 from Dr. Livingston, which
found that appellant’s cervical lordosis was mildly reversed.
OWCP received a letter dated June 6, 2018 from Dr. Livingston, which related that
appellant could return to work for full duty on June 13, 2018.
Appellant submitted progress reports dated June 22, July 11, and August 15, 2018, and
May 21, 2019 from Dr. Pickens Andrew Patterson, III, a Board-certified pain medicine specialist.
Dr. Patterson diagnosed spinal enthesopathy and low back pain.
OWCP received medical records from nurse practitioners, dated from August 8, 2018
through June 6, 2019.
On October 8 and 25, 2019 appellant requested reconsideration.
By decision dated November 20, 2019, OWCP denied modification.
On August 3, 2020 appellant requested reconsideration and submitted a magnetic
resonance imaging (MRI) scan report dated July 17, 2018 from Dr. Johnny Alexander, a diagnostic
radiologist. Dr. Alexander noted that there were no compression deformities or fracture lines of
bone marrow edema present. He also noted that there was minor levoscoliosis.
By decision dated August 19, 2020, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.4

3

Id.

4
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his timely request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law and did not advance a new and relevant legal argument
not previously considered. Thus, he is not entitled to a review of the merits based on the first and
second above-noted requirements under 20 C.F.R. § 10.606(b)(3).9
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted an MRI scan report dated July 17, 2018
from Dr. Alexander. The MRI scan report did not include any discussion of whether appellant’s
diagnosed conditions were causally related to the accepted April 24, 2018 employment incident.
The Board notes that the submission of evidence that does not address the particular issue involved
does not constitute a basis for reopening a case.10 As appellant did not provide relevant and

5

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
7

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).
9

20 C.F.R. § 10.606(b)(3); see K.F., Docket No. 19-1846 (issued November 3, 2020); L.D., supra note 4; see also
L.G., supra note 5; C.N., supra note 5.
10
D.C., Docket No. 19-0873 (issued January 27, 2020); E.G., Docket No. 18-0270 (issued August 24 2018);
Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

pertinent new evidence, he is not entitled to a merit review based on the third requirement under
20 C.F.R. § 10.606(b)(3).11
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2021
Washington, DC

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

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

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

11

See T.W., Docket No. 18-0821 (issued January 13, 2020).

12

J.B., supra note 8; D.G., Docket No. 19-1348 (issued December 2, 2019).

5


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

)
)
)
)
)
)
)
)

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

Docket No. 08-1792
Issued: March 25, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 20, 2008. The record also contains a
May 28, 2008 decision denying her request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated authorization for massage
therapy; and (2) whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant further merit review.
FACTUAL HISTORY
The Office accepted that appellant sustained a lumbosacral strain and aggravation of
lumbar degenerative disc disease causally related to an August 4, 1983 employment incident.
Appellant retired from federal employment in 1988.

An attending orthopedic surgeon, Dr. William Winternitz, Jr., indicated in an August 8,
2001 report that appellant should continue weekly massages. In a November 19, 2002 letter, the
Office noted that appellant had been receiving massage therapy for over six years and asked
Dr. Winternitz to discuss the benefits to appellant. By report dated December 11, 2002,
Dr. Winternitz stated that appellant had received significant benefit from massage therapy. He
stated that massage therapy reduced pain and increased range of motion in the spine and the
benefit, while temporary, was also cumulative.
The Office referred appellant for a second opinion examination by Dr. Jerrold Sherman,
an orthopedic surgeon. In a report dated April 20, 2003, Dr. Sherman reviewed the medical
history and provided results on examination, diagnosing osteoarthritis and osteoporosis of the
lumbar spine with radicular pain. In a report dated December 30, 2003, he stated: “I do not
believe [appellant] will benefit from further physical therapy, massage, acupuncture or aroma
therapy, none of which have been demonstrated to have curative benefits for osteoporosis with
degenerative disc disease.”
Appellant was referred to Dr. Arthur Auerbach, a Board-certified orthopedic surgeon,
selected as a referee physician to resolve the conflict in the medical evidence. In a report dated
January 20, 2005, Dr. Auerbach reviewed appellant’s history and results on examination. He
diagnosed chronic back strain and diffuse degenerative disc disease. Dr. Auerbach stated:
“Orthopedically, [appellant] does not need massage therapy. Although, massage
therapy may feel good and temporarily alleviate part of the claimant’s pain, it will
not cure or relieve the effects of her problem. According to the Occupational
Medical Practice Guidelines, Second Edition, of the American College of
Occupational Environmental Medicine, physical modalities such as massage have
no proven efficacy in treating acute low back symptoms. Insufficient scientific
testing exists to determine the effectiveness of these therapies. They may have
some value in the short term, at home local application of heat or cold are as
effective as those performed by therapists. However, daily back exercises, which
[appellant] can do at home, have shown to be of great benefit and is the better
course of treatment.”
By letter dated February 10, 2006, the Office notified appellant that it proposed to
terminate authorization for massage therapy treatment. By decision dated March 21, 2006, it
terminated authorization for massage therapy.
Appellant requested reconsideration and submitted additional medical evidence from
Dr. Thomas Pattison, a physiatrist.1 In a report dated December 16, 2006, Dr. Pattison stated that
he had received materials from appellant, including a magazine article on massage therapy, but a
more scientific and medical basis was needed to justify the treatment.

1

Prior to requesting reconsideration, appellant submitted a request for a hearing before an Office hearing
representative, which was denied as untimely by decision dated January 26, 2007. She also requested an appeal to
the Board, which was dismissed by order dated April 26, 2007 as appellant withdrew her appeal. Docket No. 07857 (issued April 26, 2007).

2

In a decision dated June 14, 2007, the Office reviewed the case on its merits and denied
modification of the March 21, 2006 decision.
Appellant requested reconsideration and submitted a December 6, 2007 report from
Dr. Marko Bodor, a physiatrist, who provided results on examination and stated: “I can attest to
the fact that [appellant] benefits from weekly massage therapy for her myofascial pain, and given
that these problems will not get better over time, she will likely continue to benefit from them in
the future.” Dr. Bodor also stated that, as appellant did not require invasive or interventional
medical treatments, it would not be unreasonable for her to continue to have some insurance
coverage in this regard. In a report dated June 20, 2007, Dr. Pattison stated that appellant found
the massage therapy helpful with her calf pain and reported clear-cut benefits from this therapy.
By decision dated March 20, 2008, the Office reviewed the case on its merits and denied
modification.
Appellant again requested reconsideration of her claim. She resubmitted the December 6,
2007 report from Dr. Bodor and an x-ray report from 2004 diagnosing degenerative disc disease.
In a decision dated May 28, 2008, the Office found the application for reconsideration
was insufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of the Federal Employees’ Compensation Act provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.2 In interpreting section 8103(a), the Board
has recognized that the Office has broad discretion in approving services provided under the Act
to ensure that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time.3 It has administrative discretion in choosing the means to achieve this
goal and the only limitation on the Office’s authority is that of reasonableness.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5

2

5 U.S.C. § 8103(a).

3

R.L., 60 ECAB

(Docket No. 08-855, issued October 6, 2008); Janice Kirby, 47 ECAB 220 (1995).

4

Daniel J. Perea, 42 ECAB 214 (1990) (holding that an abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts).
5

Furman G. Peake, 41 ECAB 361 (1990).

3

It is well established that, when 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.6
ANALYSIS -- ISSUE 1
Appellant received massage therapy as part of the authorized medical benefits for her
accepted lumbar strain and aggravation of lumbar degenerative disc disease. There was a
disagreement between an attending physician, Dr. Winternitz and a second opinion physician,
Dr. Sherman, regarding the benefit of continuing massage therapy treatment. The Act provides
that, if there is a disagreement between and attending physician and an Office physician, a third
physician shall make an examination.7 The Office referred appellant to Dr. Auerbach for a
referee examination.
Dr. Auerbach provided a complete report that reviewed appellant’s history and the
medical evidence, providing a rationalized opinion that appellant did not need massage therapy.
He noted that such therapy had no proven efficacy in treating acute low back symptoms and that
other treatments, such as back exercises, provided a better treatment. The Board finds that
Dr. Auerbach provided a rationalized medical opinion based on a complete background. As
noted above, a rationalized opinion from a referee physician is entitled to special weight and it
represents the weight of the evidence in this case. The Office met its burden of proof to
terminate authorization for massage therapy.
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant.8 Following the
termination decision, appellant submitted a June 20, 2007 report from Dr. Pattison, who indicated
that appellant found massage therapy to be helpful and wanted to continue. Dr. Bodor stated in a
December 6, 2007 report that appellant benefited from massage therapy for myofascial pain.
The Office has, as noted above, broad discretion in determining the benefits authorized
under 5 U.S.C. § 8103(a). Drs. Pattison and Bodor provide general statements that appellant felt
she benefited from the massage therapy. However, they did not provide a complete medical
history or discuss other appropriate treatments. The physicians did not provide any explanation as
to how massage therapy would cure or reduce the period of disability associated with appellant’s
accepted conditions. The Board finds that the Office did not abuse discretion in denying massage
therapy after March 20, 2006.

6

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

7

5 U.S.C. § 8123(a). The Office’s regulations state that this is called a referee examination. 20 C.F.R.
§ 10.321 (2008).
8

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

4

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,9 the Office’s regulations provides that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(i) shows that OWCP erroneously
applied or interpreted a specific point of law; (ii) advances a relevant legal argument not
previously considered by OWCP; or (iii) constitutes relevant and pertinent evidence not
previously considered by OWCP.”10 Section 10.608(b) states that any application for review that
does not meet at least one of the requirements listed in section 10.606(b)(2) will be denied by the
Office without review of the merits of the claim.11
ANALYSIS -- ISSUE 2
On reconsideration appellant did not attempt to show that the Office erroneously applied
or interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office. In addition, she did not submit any new and relevant medical evidence
on the issue of continuing medical benefits for massage therapy. The December 6, 2007 report
had been considered by the Office in its March 20, 2008 merit decision.
The Board accordingly finds appellant did not meet any of the requirements on 20 C.F.R.
§ 10.606(b)(2) in her application for reconsideration. Pursuant to 20 C.F.R. § 10.608, the Office
properly declined to reopen the case for review of the merits of the claim.
CONCLUSION
The Office met its burden of proof to terminate authorization for massage therapy. On
reconsideration, appellant did not meet the requirements of 20 C.F.R. § 10.606(b)(2).

9

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
10

20 C.F.R. § 10.606(b)(2).

11

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 28 and March 20, 2008 are affirmed.
Issued: March 25, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6