United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, HOWELL MILL
POST OFFICE, Atlanta, GA, Employer
__________________________________________

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Appearances:
Frankie Anderson, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1452
Issued: September 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 25, 2015 appellant, through her representative, filed a timely appeal from
January 9 and February 25, 2015 merit decisions of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that her June 5,
2012 spinal surgery was causally related to the January 14, 2010 employment injury; and
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board.
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

(2) whether appellant met her burden of proof to establish a recurrence of disability commencing
November 4, 2013 due to the accepted cervical, thoracic, and lumbar strains.
On appeal appellant’s representative asserts that appellant has accepted spinal stenosis
and lumbar spondylolisthesis and that OWCP did not follow the hearing representative’s
instructions to ask its medical adviser whether appellant’s surgery was connected to the accepted
injury.
FACTUAL HISTORY
On January 14, 2010 appellant, then a 53-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her head, neck, shoulder, and back when a customer
backed into her postal vehicle that day. She returned to modified duty. OWCP accepted
cervical, thoracic, and lumbar strains.
Appellant filed a claim for wage-loss compensation for the period commencing
September 30, 2010. She returned to modified duty on November 4, 2010.
By decision dated December 29, 2010, OWCP denied appellant’s claim for compensation
finding that the medical evidence failed to establish disability related to the accepted conditions.
On June 5, 2012 appellant underwent fusion surgery.
On July 10, 2012 the employing establishment informed OWCP that appellant had a third
party recovery regarding the January 14, 2010 employment injury and forwarded a check for
$1,274.60. An attached statement of third-party recovery indicated that there was a surplus of
$51,424.19 as a credit against future benefits. The record indicates that appellant stopped work
in June 2012 and took sick and annual leave until August 3, 2012, when she again began
claiming compensation.
By letter dated October 9, 2013, OWCP informed appellant that it had received a
retroactive authorization request for a hospital stay for a red blood cell disorder. It informed her
of the medical evidence needed to establish that the diagnosed condition or hospitalization was
employment related.
On December 4, 2013 appellant filed a claim for recurrence (Form CA-2a) commencing
November 4, 2013. She alleged that she was unable to perform job duties of casing mail due to
neck and lower back spasms and a swollen right knee. An employing establishment manager
indicated that adjustments had been made to appellant’s regular duties after the January 2010
employment injury.
Appellant also submitted claims for total disability compensation (Form CA-7) beginning
in August 2012.3 The record indicates that she returned to part-time modified duty in
3

The Form CA-7 claims were for the periods August 31, 2012 to October 1, 2013 (received by OWCP on
December 4, 2013), August to September 3, 2012, (received December 18, 2013), October 25 to December 2, 2013
and December 2 to 13, 2013 (both received by OWCP on December 19, 2013.

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October 2013 and thereafter worked two to three hours daily. Appellant’s disability claims
thereafter reflected that they were for partial disability.
In support of her recurrence claim, appellant submitted a January 14, 2010 cervical spine
x-ray report that showed degenerative changes at C6-7. On a June 20, 2012 form report
Dr. Lee A. Kelley, a Board-certified orthopedic surgeon, diagnosed lumbar stenosis, and
spondylolisthesis and reported that appellant had surgery on June 5, 2012. In reports dated
January 8 and 21, 2013, he noted that she was totally disabled following surgery with an
anticipated return to work of June 10, 2013. In December 2, 2013 reports, Dr. Jason E. Berendt,
an internist, noted appellant’s complaint that her right leg hurt with standing and prolonged
walking. He diagnosed lumbar radiculopathy and recommended that she follow up with her
orthopedic physicians. Dr. Berendt advised that appellant could return to regular duty that day.
By letter dated December 13, 2013, OWCP informed appellant of the evidence needed to
support her recurrence claim.
On December 26, 2013 Dr. Craig A. Kaplan, Board-certified in family medicine, advised
that appellant could not work that day due to pain. On January 3, 2014 Dr. Alexis M. Atwater,
Board-certified in family medicine, advised that she had been ill since December 31, 2013 and
could resume unrestricted work on January 6, 2014.
In an October 21, 2013 treatment note, Dr. Kelley reported that appellant had returned to
modified duty on October 21, 2013, but had increasing radiating lumbosacral pain and difficulty
walking up and down stairs. Appellant had restricted lumbosacral range of motion. Sensory and
motor examinations, and straight leg raising were negative. Dr. Kelley recommended a magnetic
resonance imaging (MRI) scan. A November 5, 2013 lumbar spine MRI scan showed surgical
changes and progression of degenerative disc disease at L2-3 and L3-4 when compared to a
June 1, 2012 preoperative examination.4 On November 25, 2013 Dr. Kelley discussed the MRI
scan findings. He referred appellant for steroid injections at L3-4.
Appellant submitted additional claims for wage-loss compensation (Form CA-7) on
January 14, 2014 for the period December 21, 2013 to January 4, 2014, and on February 6, 2014
for the period January 13 to February 24, 2014.
In a February 14, 2014 decision, OWCP denied appellant’s claim for recurrence
commencing on November 4, 2013 because the medical evidence failed to establish disability for
that period was due to a material change or worsening of the employment injury. In another
February 14, 2014 decision, it also denied her claims for wage-loss compensation for the periods
August 1, 2012 to December 13, 2013 as she had failed to support her claims with sufficient
medical evidence.
Appellant submitted a Form CA-7 on February 28, 2014 for the period January 27 to
February 6, 2014.

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Appellant also submitted medical evidence relating to her left shoulder, sinusitis, knee pain, edema, right lower
quadrant abdominal pain, and a sore throat not relevant to the instant claim.

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On March 7, 2014 appellant accepted a modified clerk position.
By letter dated March 19, 2014, appellant requested a hearing before an OWCP hearing
representative. She submitted additional medical evidence including January 14, 2010 thoracic
and lumbar spine x-rays that showed degenerative spondylosis and no acute findings. In a
December 5, 2011 report, Dr. Kelley described the employment injury and noted that appellant
was working regular duty at that time. He further noted her complaints of radiating right and left
buttock pain. Examination demonstrated mild pain with bending. Straight leg raising was
negative, and motor and sensory examination were normal. Dr. Kelley advised that a July 25,
2010 MRI scan demonstrated grade 1 spondylolisthesis at L4-5 with moderate to advanced
stenosis and early spondylolisthesis at L5-S1. He recommended spinal fusion surgery. In
reports dated November 25, 2013 and March 18, 2014, Dr. Kelley provided restrictions to
appellant’s activity.
OWCP denied appellant’s claim for partial wage-loss compensation for the periods
December 21, 2013 to January 4, 2014, 36 hours, and January 13 to February 24, 2014, 54 hours,
by decision dated March 28, 2014. By decision dated April 7, 2014, OWCP denied appellant’s
claim for partial wage-loss compensation for the period January 27 to February 6, 2014 because
the record failed to reflect sufficient support for disability for the claimed periods due to the
employment injury.5
Appellant, who had been working part time since October 2013, stopped work on
April 21, 2014. She returned to modified part-time work on May 13, 2014 and again stopped
work on June 9, 2014.
On July 22, 2014 appellant claimed additional partial disability compensation for the
period October 26, 2013 through June 27, 2014. Time analysis forms covering the period
beginning October 26, 2013 indicated that she generally worked two to three hours daily with
sporadic increases in the number of hours worked.
In a June 30, 2014 report, Dr. Zouheir A. Shama, a surgeon, noted appellant’s complaint
of radiating back pain. He described limited lumbar range of motion on physical examination
and diagnosed lumbar, neck, and thoracic sprains. Dr. Shama recommended a lumbar MRI scan
study and provided physical restrictions.
By decision dated August 27, 2014, an OWCP hearing representative set aside the
February 14, 2014 recurrence decision and remanded the case to OWCP for further development.
The hearing representative also found that OWCP had not followed its procedures prior to
authorizing the June 5, 2012 fusion surgery. The case was remanded for OWCP to prepare a
statement of accepted facts (SOAF) and seek an opinion from an OWCP medical adviser as to
causal relationship between the June 5, 2012 lumbar fusion surgery and the January 14, 2010
employment injury and to thereafter revisit the claim for recurrence of disability commencing
November 4, 2013.

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Appellant also submitted medical evidence regarding a leg injury that occurred on April 1, 2014.

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On September 3, 2014 Dr. H.P. Hogshead, a Board-certified orthopedic surgeon and
OWCP medical adviser, noted the accepted conditions of lumbar, thoracic, and cervical sprain.
He advised that surgical spinal fusion was never indicated for a sprain-type injury and concluded
that the January 14, 2010 employment injury was not relevant to the subsequent surgery.
Appellant submitted a September 22, 2014 request for reconsideration and submitted
additional medical evidence.6
Appellant thereafter submitted a May 2, 2014 report in which Dr. Shama described the
employment injury and further noted that in 2013 she had a nonwork-related automobile
accident. Dr. Shama noted examination findings and diagnosed lumbar, thoracic, and neck
sprains. He opined that, following the January 14, 2010 employment injury, appellant continued
to have residuals and continued to perform work duties that aggravated her condition. These
included prolonged sitting, standing, bending, stooping, lifting, and walking. On June 2, 2014
Dr. Shama reiterated his findings and conclusions. On July 1 and August 5, 2014 he noted
appellant’s June 5, 2012 surgery for spinal stenosis, that she could not return to work until
October 2013, and that she then worked modified duties. Dr. Shama further related that she had
been off work since June 9, 2014 when she developed pain as a result of work duties of filing,
sitting, standing, and walking. He advised that appellant could not work eight hours a day.
A June 1, 2012 lumbar MRI scan report showed a mild increase in central canal stenosis
at L4-5 and L5-S1 when compared with a July 25, 2010 study. A June 5, 2012 operative report
indicated that Dr. Kelley performed laminectomies and decompression with interbody implants
and fusion from L4 to S1. He described preoperative and postoperative diagnoses as lumbar
spinal stenosis at L3-4, L4-5, and L5-S1 with degenerative spondylolisthesis at L4-5 and L5-S1.
A June 8, 2012 discharge summary described appellant’s hospital course.
In a September 26, 2014 decision, OWCP denied appellant’s July 22, 2014 claim for
disability compensation for the periods October 26, 2013 to June 27, 2014 and any period
thereafter because the medical evidence was insufficient to establish that the claimed disability
was caused by the January 14, 2010 work injury. It further found that the June 5, 2012 fusion
surgery was not necessitated by the January 14, 2010 work injury as it was for lumbar spinal
stenosis and degenerative spondylolisthesis which were not accepted conditions.
On September 30, 2014 OWCP requested that appellant submit the June 1, 2012 lumbar
MRI scan report and all hospital records regarding the June 5, 2012 surgery. On October 8, 2014
Dr. Shama indicated that it was expected that she would return to her bid assignment within six
months.
In November 2014, consistent with the hearing representative’s remand on the issue of
disability, OWCP referred appellant to Dr. Alexander N. Doman, a Board-certified orthopedic
surgeon, for a second opinion. A SOAF described the January 14, 2010 injury, the regular duties
of a letter carrier, and the physical requirements of her most recent limited-duty position. It
indicated that preexisting medical conditions included spondylolisthesis and stenosis at L5-S1
6

OWCP later clarified that the request for reconsideration was premature as the August 27, 2014 decision had
remanded the case for further development.

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and disc desiccation at L1-2, and that the accepted conditions were strains to the cervical,
thoracic, and lumbar spine.
In a December 22, 2014 report, Dr. Doman noted his review of the SOAF and medical
record and appellant’s complaints of back pain. Examination demonstrated a normal gait,
negative straight leg raising test, and no muscle atrophy. Dr. Doman opined that appellant
exhibited symptom magnification and exaggeration. He noted that cervical spine x-rays were
normal, and that x-rays of the lumbar spine showed a solid lumbar fusion from L4 to S1 with
excellent placement of pedicle screws. In answer to specific OWCP questions, Dr. Doman
advised that there were no objective findings on physical examination of residuals of the
accepted cervical, thoracic, and lumbar strains. He opined that these conditions had resolved
long ago and that it was his “firm and definite” opinion that the claim should not be expanded to
include an additional diagnosis. Dr. Doman advised that the January 14, 2010 motor vehicle
accident would have resulted in only a minor, temporary aggravation of appellant’s preexisting
degenerative lumbar spinal stenosis, and lumbar spondylolisthesis and that this aggravation
would have ceased no later than April 14, 2010, when she reached maximum medical
improvement. He advised that it was his “firm and definite” opinion that the 2012 lumbar fusion
surgery was not in any way related to her employment injuries and was for the preexisting
conditions of spondylolisthesis and degenerative spinal stenosis. Dr. Doman further opined that
appellant’s present subjective complaints of pain strongly indicated that she was intentionally
malingering for the purposes of secondary gain. He concluded that she was able to perform
regular full-time work with a minor restriction to avoid lifting more than 40 pounds, noting that
this restriction was for her nonwork-related condition.
In a January 9, 2015 decision, OWCP issued its decision on remand and denied
modification of the February 14, 2014 denial of recurrence claim. It found that the weight of the
medical evidence rested with the opinion of Dr. Doman and concluded that the evidence of
record was insufficient to support the recurrence of disability on November 4, 2013. OWCP
noted that a formal decision denying the surgery and any resulting disability from that surgery
had been issued on September 26, 2014 as the medical evidence failed to establish that the
employment injury caused or aggravated appellant’s preexisting back conditions. It noted that
although appellant had filed a request for reconsideration after the August 27, 2014 decision that
was incorrect as the case had been remanded.
On February 17, 2015 appellant requested reconsideration of the January 9, 2015
decision. She asserted that none of the recommendations of the hearing representative had been
followed by OWCP, that instead of an OWCP medical adviser making a determination, she was
sent for a second opinion evaluation, and he did not address the hearing representative’s
concerns.
In a merit decision dated February 25, 2015, OWCP found that the weight of the medical
evidence regarding the need for back surgery rested with Dr. Doman who advised that it was not
related to the employment injury. It further denied modification of the denial of her recurrence
claim commencing November 4, 2013.

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LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA 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 that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability, or aid in lessening the amount of
any monthly compensation.7 While OWCP is obligated to pay for treatment of employmentrelated conditions, appellant has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.8
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on
OWCP’s authority being that of reasonableness.9 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. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.10 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition.
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.11 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the surgery is for a condition causally related to an employment injury and
that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.12
ANALYSIS -- ISSUE 1
OWCP accepted cervical, thoracic, and lumbar strains due to a January 14, 2010
employment injury.
Regarding the June 5, 2012 surgery, Dr. Hogshead, the medical adviser, advised that
surgical spinal fusion was not indicated for a sprain-type injury. He concluded that the
January 14, 2010 employment injury was not relevant to the subsequent surgery. OWCP then
referred the case to Dr. Doman who performed a second opinion evaluation and further found
that the June 5, 2012 lumbar surgery was not related to the January 14, 2010 employment injury.
7

5 U.S.C. § 8103(a); see L.D., 59 ECAB 648 (2008).

8

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

9

See D.K., 59 ECAB 141 (2007).

10

Minnie B. Lewis, 53 ECAB 606 (2002).

11

M.B., 58 ECAB 588 (2007).

12

R.C., 58 ECAB 238 (2006).

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The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Doman. For a surgical procedure to be authorized, a claimant must submit evidence to show
that the surgery is for a condition causally related to an employment injury and that it is
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.13 The accepted conditions in this case are cervical, thoracic, and lumbar strains, and
the pre and postoperative diagnoses for the June 5, 2012 surgery were spinal stenosis and lumbar
spondylolisthesis which, contrary to appellant’s assertion on appeal, have not been accepted.
In his December 22, 2014 report, Dr. Doman advised that the accepted cervical, thoracic,
and lumbar strains had been long resolved, and indicated that it was his “firm and definite”
opinion that the claim should not be expanded to include an additional diagnosis. He advised
that the January 14, 2010 motor vehicle accident would have resulted in only a minor, temporary
aggravation of appellant’s preexisting degenerative lumbar spinal stenosis and lumbar
spondylolisthesis and that this aggravation would have ceased no later than April 14, 2010, when
she reached maximum medical improvement. Dr. Doman further advised that it was his “firm
and definite” opinion that the 2012 lumbar fusion surgery was not in any way related to her
employment-related injuries and was for the preexisting conditions of spondylolisthesis and
degenerative spinal stenosis.
Dr. Kelley, an attending orthopedic surgeon, noted MRI scan findings of
spondylolisthesis and spinal stenosis from L4 to S1 and recommended surgery, which he
performed on June 5, 2012. Other than noting the January 14, 2010 employment injury, he did
not provide an explanation of how this caused or aggravated appellant’s diagnosed lumbar
condition or the need for surgery.
Dr. Shama noted that appellant had surgery for spinal stenosis and indicated that her job
duties aggravated her condition after the January 14, 2010 employment injury. He did not offer
an opinion as to whether the surgery was for a condition causally related to the employment
injury or that it was medically warranted.
As to appellant’s assertion that OWCP did not follow the hearing representative’s
instructions, as noted above, the case was referred to Dr. Hogshead, an OWCP medical adviser,
for an opinion regarding the need for surgery. Moreover, it properly referred her for a second
opinion evaluation. Section 8123(a) of FECA authorizes OWCP to require an employee who
claims compensation for an employment injury to undergo such physical examinations as it
deems necessary.14
The Board concludes that Dr. Doman’s opinion that the lumbar spine surgery was not
related to the January 14, 2010 employment injury represents the weight of the evidence. OWCP
acted within its discretion in denying authorization.15
13

Id.

14

5 U.S.C. § 8123(a). See J.C., Docket No. 09-609 (issued January 5, 2010) (the determination of the need for an
examination, the type of examination, the choice of locale and the choice of medical examiners are matters within
the province and discretion of OWCP).
15

L.D., supra note 7.

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LEGAL PRECEDENT -- ISSUE 2
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.16 Disability is
thus not synonymous with physical impairment, which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury, but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.17 The test of “disability”
under FECA is whether an employment-related impairment prevents the employee from engaging
in the kind of work he or she was doing when injured.18 Whether a particular injury causes an
employee to be disabled for work and the duration of that disability, are medical issues that must
be proved by a preponderance of the reliable, probative, and substantial medical evidence.19
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.20 Causal relationship is a medical issue. 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 claimant.21
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-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 to show that he or she cannot perform such limited-duty work. 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 limited-duty job requirements.22 To
establish a change in the nature and extent of the injury-related condition, there must be
probative medical evidence. The evidence must include a medical opinion, based on a complete
and accurate factual and medical history and supported by sound medical reasoning, that the
disabling condition is causally related to employment factors.23
16

See Prince E. Wallace, 52 ECAB 357 (2001).

17

Cheryl L. Decavitch, 50 ECAB 397 (1999).

18

Corlisia Sims, 46 ECAB 963 (1995).

19

Tammy L. Medley, 55 ECAB 182 (2003).

20

William A. Archer, 55 ECAB 674 (2004).

21

Leslie C. Moore, 52 ECAB 132 (2000).

22

Albert C. Brown, 52 ECAB 152 (2000); Barry C. Petterson, 52 ECAB 120 (2000).

23

Maurissa Mack, 50 ECAB 498 (1999).

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ANALYSIS -- ISSUE 2
The accepted conditions in this case are cervical, thoracic, and lumbar strains caused by a
January 14, 2010 employment injury. Appellant began working full-time modified duty after the
injury and stopped work in June 2012 to have spinal fusion surgery. After October 2013, she
worked intermittent part-time modified duty until she stopped on June 9, 2014. As noted above,
this surgery was not found to be causally related to the January 10, 2014 employment injury, but
instead to spinal stenosis and lumbar spondylolisthesis, which were not accepted conditions.
Appellant filed a claim for recurrence of disability commencing November 4, 2013.
Neither Dr. Berendt, Dr. Kaplan, nor Dr. Atwater related any symptoms or diagnoses to
the accepted conditions. On December 2, 2013 Dr. Berendt reported appellant’s complaint of
right leg pain with standing and prolonged walking. He diagnosed lumbar radiculopathy,
recommended follow up with an orthopedic surgeon, and advised that she could return to regular
duty. Dr. Kaplan advised on December 26, 2013 that appellant could not work due to pain. He
did not further describe her symptoms or provide a diagnosis. Dr. Atwater merely advised on
January 3, 2014 that appellant had been ill since December 31, 2013 and could return to
unrestricted duty on January 6, 2014.
Dr. Kelley performed the June 5, 2012 surgery and thereafter submitted reports beginning
on June 20, 2012. He indicated that appellant was totally disabled and related the disability to
stenosis and spondylolisthesis and her recovery from the June 5, 2012 surgery for these
conditions. On October 21, 2013 Dr. Kelley noted that she had returned to modified duty and
had complaints of radiating lumbosacral pain. On November 25, 2013 he reviewed a
November 5, 2013 lumbar MRI scan that demonstrated progression of degenerative disc disease.
Dr. Kelley’s last report is dated March 18, 2014, when he advised that appellant could return to
light duty on March 18, 2014. At that time he diagnosed L3-4 stenosis and status post lumbar
fusion. The only diagnoses Dr. Kelley reported were lumbar stenosis and spondylolisthesis. In
none of his reports did he relate appellant’s symptoms of disability to the accepted cervical,
thoracic, and lumbar strains.
Dr. Shama began treating appellant in May 2014, after she had returned to modified duty.
In a May 2, 2014 report, he described her past medical and surgical history and opined that she
continued to have residuals of the January 14, 2010 employment injury. On July 1, 2014
Dr. Shama reported that appellant stopped work on June 9, 2014 due to pain and advised that she
could not work eight hours daily. While he indicated that her modified work duties following
the January 14, 2010 employment injury caused pain such that she could not work, he did not
display knowledge of her specific regular or modified job duties or specifically explain why she
was precluded from performing her modified position beginning in August 2012.
Without a detailed medical report describing how and why appellant was disabled
beginning in August 2012 due to the accepted cervical, thoracic, and lumbar strains, she has not
met her burden of proof to establish entitlement to disability compensation for that period.24
Moreover, Dr. Kelley and Dr. Shama referred to diagnoses of spinal stenosis and lumbar
24

See W.S., Docket No. 14-1022 (issued July 1, 2014).

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spondylolisthesis, neither of which has been accepted as employment related. The issue of
whether a claimant’s disability is related to an accepted condition is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.25
Regarding the claimed disability, Dr. Doman, an OWCP referral physician, advised in his
December 22, 2014 report that on physical examination appellant had no objective findings of
residuals of the accepted cervical, thoracic, and lumbar strains, opining that these had resolved
“long ago.” He also firmly maintained that the claim should not be expanded, stating that the
January 14, 2010 employment injury would have resulted in only a minor, temporary
aggravation of her preexisting degenerative lumbar spinal stenosis and lumbar spondylolisthesis
and that this aggravation would have ceased no later than April 14, 2010, when she reached
maximum medical improvement. The Board finds that the weight of the medical opinion
evidence rests with the opinion of Dr. Doman who provided a comprehensive report in which he
outlined examination findings and provided a rationalized explanation for his opinion regarding
appellant’s ability to work. While he provided a weight restriction, Dr. Doman opined that this
was not employment related.
Appellant did not submit sufficient rationalized medical opinion evidence to establish a
recurrence of disability due to the accepted cervical, thoracic, and lumbar strains.26
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 her burden of proof to establish that the
June 5, 2012 surgery was warranted or that she had established a recurrence of disability.

25

Sandra D. Pruitt, 57 ECAB 126 (2005).

26

N.R., Docket No. 14-114 (issued April 28, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the February 25 and January 9, 2015 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 20, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakewood, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-1921
Issued: January 28, 2016

Case Submitted on the Record

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

On September 22, 2015 appellant, through counsel, filed a timely appeal of a July 21,
2015 decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was
docketed as No. 15-1921.
The Board has duly considered the matter and finds that the case is not in posture for
decision as the case record submitted to the Board is incomplete. The July 21, 2015 decision on
appeal is a decision finding that appellant was not entitled to a merit review of his claim. In this
regard, counsel had submitted a letter dated April 8, 2015 indicating that he had previously
requested reconsideration of a July 8, 2014 hearing representative decision in October 2014.
The imaged record forwarded to the Board does not contain an October 2014
reconsideration request or additional medical evidence after the July 8, 2014 decision, but a
review of the record clearly indicates that it is incomplete. The hearing representative indicated
that an April 22, 2014 hearing was held, and yet the record contains no transcript or other
evidence with respect to the hearing. It is not clear if additional evidence is missing. Since
appellant’s counsel has claimed that he submitted additional evidence that is not in the imaged
record, the case will be remanded to OWCP for proper assemblage of the case record.

A proper review of the case and adjudication of the issues by the Board requires a
complete record of the relevant evidence.1 After proper assemblage and review of all evidence
associated with this claim, OWCP should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2015 is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: January 28, 2016
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

1

See Terence M. Gore, Docket No. 94-0464 (issued June 26, 1995).

2


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

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

Docket No. 17-1877
Issued: February 6, 2018

Case Submitted on the Record

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

JURISDICTION
On September 5, 2017 appellant filed a timely appeal from a March 6, 2017 merit
decision and a May 16, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f).
One hundred and eighty days from OWCP’s March 6, 2017 decision was Saturday
September 2, 2017. The next business day, Monday September 4, 2017, was a federal holiday. When the final day
to request an appeal falls on a weekend or federal holiday, the claimant has until the next business day to timely file
an appeal. 20 C.F.R. § 501.3(f)(2). The appeal was therefore timely received on Tuesday, September 5, 2017.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an injury in the
performance of duty on January 16, 2017, as alleged; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 23, 2017 appellant, then a 31-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 16, 2017 he sustained unspecified injuries as a result
of a motor vehicle accident. He noted that the incident occurred at 10:15 a.m., but he did not
relate where the incident occurred. Appellant stopped work on January 16, 2017.
The employing establishment issued an authorization for examination and/or treatment
(Form CA-16) on January 16, 2017. An attached report from Dr. Joseph Cherian, a family
medicine physician, did not contain a diagnosis, but did note that appellant should limit
standing/walking to two hours per day; that appellant should limit pushing and pulling to 25
pounds; and that appellant should not kneel, squat, or climb. In a work status report of the same
date, Dr. Cherian diagnosed a right lower leg contusion; cervical strain; contusions of the left
knee and lower leg; and contusion of the right forearm. He reported that appellant could return
to modified-duty work.3
In a report dated January 23, 2017, Dr. Cherian noted a diagnosis of a right lower leg
contusion and he related that appellant could return to work without restrictions as of
March 9, 2017.
By development letter dated January 27, 2017, OWCP informed appellant of the evidence
necessary to establish his claim. It noted that he had not submitted sufficient factual or medical
evidence to establish his claim and requested that he respond to its inquiries including a detailed
description of how the motor vehicle incident occurred. Appellant was afforded 30 days to
submit the necessary evidence.
In a report dated January 23, 2017, Dr. Cherian noted that appellant felt 40 percent better
since the motor vehicle incident. Appellant related his history of injury to Dr. Cherian, stating
that he had been driving a postal vehicle when he lost control and hit the barrier on the inside of
a bend.
By decision dated March 6, 2017, OWCP denied appellant’s claim for compensation. It
found that he had not established that the event of January 16, 2017 occurred in the performance
of duty. OWCP found that appellant did not respond to its questionnaire and had failed to
3

The Board notes that on January 16, 2017, an authorization for examination and/or treatment form (Form
CA-16) was completed by an employing establishment and authorized medical treatment. Where an employing
establishment properly executes a Form CA-16 authorizing medical treatment related to a claim for a work injury,
the form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination/treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003).
The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

2

provide a detailed description of the incident to establish that it occurred at the time, place, and
in the manner alleged.
On April 29, 2017 appellant requested reconsideration of OWCP’s March 6, 2017
decision. With his request for reconsideration, he resubmitted the January 16 and 23, 2017
reports from Dr. Cherian.
By decision dated May 16, 2017, OWCP declined to review the merits of appellant’s
claim, noting that he had neither raised substantive legal questions nor included relevant and
pertinent new evidence with his request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 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, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury5 was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is
causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he actually experienced the employment incident at the time, place, and
in the manner alleged. Second, the employee must submit sufficient evidence, generally only in
the form of medical evidence, to establish that the employment incident caused a personal injury.
An employee may establish that the employment incident occurred as alleged, but fail to show
that his or her condition relates to the employment incident.7
FECA provides for payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.8 The phrase “while in
the performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of “arising out of and in the course of
employment.” In addressing the issue, the Board has held that for an incident to occur in the
course of employment, in general, an injury must occur: (1) at a time when the employee may
4

Supra note 2.

5

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
6

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

8

Supra note 2.

3

reasonably be stated to be engaged in his or her master’s business; (2) at a place where he or she
may reasonably be expected to be in connection with the employment; and (3) while he or she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.9
There are four categories of off-premises employees recognized by OWCP in its
procedures: (1) Messengers, letter carriers and chauffeurs who, by the nature of their work,
perform service away from the employing establishment’s premises; (2) traveling auditors and
inspectors whose work requires them to be in a travel status; (3) workers having a fixed place of
employment who are sent on errands or special missions by the employing establishment; and
(4) workers who perform services at home for their employing establishment.10
ANALYSIS -- ISSUE 1
Appellant alleged that on January 16, 2017 he sustained injury as a result of an
employment-related motor vehicle accident which occurred at 10:15 a.m. As part of his burden
of proof, he must establish all the essential elements of his claim, including that the January 16,
2017 incident occurred in the performance of duty at the time, place, and in the manner alleged.11
OWCP denied appellant’s claim finding that he did not provide sufficient details describing the
incident to establish that it occurred in the performance of duty.
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on January 16, 2017.
Appellant’s duties as a letter carrier require that he perform employment duties in a
vehicle, off the employing establishment’s premises.12 While the record reflects that the incident
occurred during his work hours, appellant has not sufficiently described the alleged January 16,
2017 incident to establish that it occurred in the performance of duty.13 Other than reporting the
time of the incident, appellant has not provided sufficient details to establish that he was at a
place where he was reasonably expected to be and at a time when he was fulfilling duties of his
federal employment. The only other account of the incident comes from the reports of
Dr. Cherian, who stated that appellant reported driving an employing establishment vehicle when
he lost control and hit a barrier on the inside of a bend. Appellant failed to describe where the
accident occurred, the purpose of his trip, or describe why he was on the specific route at the
time of the accident.14

9

J.E., 59 ECAB 119 (2007).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(a)
(August 1992); see also N.B., Docket No. 14-1092 (issued February 26, 2015).
11

Id.

12

Supra note 9.

13

M.H., Docket No. 11-0644 (issued September 30, 2011).

14

Id.

4

In a letter dated January 27, 2017, OWCP advised him of the deficiencies of his claim
and requested additional factual evidence to establish that the alleged vehicle accident occurred
in the performance of duty. Appellant did not submit any additional statements to OWCP
describing the alleged January 16, 2017 incident or providing additional details. Thus, he did not
submit sufficient evidence to establish that the January 16, 2017 incident occurred in the
performance of duty, as alleged.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
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.15 Section 10.608(b) of OWCP’s regulations
provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
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).
The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3),
requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law, nor did he advance a new and relevant legal argument not
previously considered by OWCP. The Board therefore finds that 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).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP. In his April 12, 2017 request for reconsideration, appellant
merely requested that OWCP review the medical evidence submitted. He resubmitted the
January 16 and 23, 2017 reports from Dr. Cherian, which had already been considered in

15

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

16

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

5

OWCP’s March 6, 2017 decision. Evidence that repeats or duplicates evidence already in the
case record has no evidentiary value and does not constitute a basis for reopening a case.17
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury in
the performance of duty on January 16, 2017, as alleged. The Board further finds that OWCP
properly denied his request for reconsideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 16 and March 6, 2017 are affirmed.
Issued: February 6, 2018
Washington, DC

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

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

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

17

J.J., Docket No. 17-0614 (issued June 13, 2017).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Washington, DC, Employer
__________________________________________

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

Docket No. 08-1554
Issued: February 3, 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 April 29, 2008 appellant filed a timely appeal from an April 14, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for a recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing September 1, 2008 causally related to her accepted November 7, 2006 employment
injury.
FACTUAL HISTORY
On November 15, 2006 appellant, then a 32-year-old practical nurse, filed a traumatic
injury (Form CA-1) claim alleging that on November 7, 2006 a coworker pulled a chair away
from her while she was attempting to sit down, resulting in a back and neck injury. In a duty
status report dated November 9, 2006, Dr. Vincent Okeke, a Board-certified internist, diagnosed

a buttocks contusion, finding that she experienced neck, back and left knee pain.
February 12, 2007 the Office accepted appellant’s claim for a buttocks contusion.1

On

On October 15, 2007 appellant filed a claim for recurrence of disability (Form CA-2a)
alleging lower back pain and misalignment. She listed September 1, 2007 as the date of
recurrence and claimed that she stopped work on October 1, 2007 and had not returned.
Appellant argued that her recurrence was due to her original injury and that she was unable to
perform her work duties.
Appellant submitted several medical notes and a duty status report dated December 17,
2007 through March 18, 2008 signed by Dr. Mark A. Booher, Board-certified in family and
sports medicine. Dr. Booher recounted appellant’s version of her work incident, her medical
history and the treatment she received. Physical examinations revealed persistent tenderness in
appellant’s lower thoracic and lumbar paraspinal musculature bilaterally. Dr. Booher diagnosed
chronic low back pain and symptoms consistent with disc bulging, facet joint inflammation,
ligament strain and muscular imbalance.
In a January 7, 2008 medical report, Dr. Booher relayed that appellant returned to work in
August 2007, attempting an eight-hour work shift; however, her normal employment activities,
including “bending, squatting, pulling, occasional overhead lifting and occasionally some
heaving lifting” caused tremendous pain. He placed appellant on strict work restrictions and
completed a duty status report to this effect, attributing her injury to falling after her chair was
pulled out. Dr. Booher further noted on March 18, 2008 that appellant was not working due to
limitations with most activities.
In progress notes dated February 12, 2008, Dr. Booher stated that appellant’s initial
injury in November 2006 “contributes directly” to her current pain and that she had no back pain
prior to her injury. He reported appellant’s attempt to return to work, but that her normal
employment activities caused a great deal of pain. Further, Dr. Booher indicated that appellant
was not fully recovered from her initial injury and that her symptoms had worsened over the
course of the year, preventing her from performing her essential job duties.
Appellant submitted a narrative statement dated January 30, 2008, noting that she
returned to work in August 2007 and within one week experienced difficulty performing her
duties. She claimed that she was in pain after finishing her shifts and that her injury had affected
her right knee and her lower back. Appellant maintained that Dr. Booher initially placed her on
work restrictions and then recommended she not work at all, pending physical therapy.
In an April 14, 2008 decision, the Office denied appellant’s claim on the grounds that the
medical evidence did not establish a recurrence of disability commencing September 1, 2007,
resulting from the accepted work injury.

1

Appellant filed a Form CA-7 for compensation on May 3, 2007 for the period December 23, 2006 through
March 17, 2007. In a June 20, 2007 letter, the Office advised appellant that her claims for compensation for the
period February 23, 2006 through March 31, 2007 were insufficient due to a lack of supporting medical evidence,
allotting her 30 days within which to submit additional evidence. The Board notes that, as the Office has not issued
a final decision on this claim, it is not before the Board on the current appeal. See 20 C.F.R. § 501.2(c).

2

LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.”2 An employee who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.3 Where no such rationale is present, medical evidence
is of diminished probative value.4
ANALYSIS
The Office accepted that appellant sustained a buttocks contusion on November 7, 2006,
after falling when her chair was pulled out. The issue is whether she established that she
sustained a recurrence of disability on September 1, 2008 causally related to the November 7,
2006 employment injury. The Board finds that appellant has not met her burden of proof in
establishing her claim.
Appellant submitted medical evidence from Dr. Booher, her treating physician, who
diagnosed chronic low back pain and symptoms consistent with disc bulging, facet joint
inflammation, ligament strain and muscular imbalance. In a January 7, 2008 duty status report,
Dr. Booher contended that appellant’s current condition was caused by falling after her chair was
pulled out. On February 12, 2008 he opined that appellant’s initial injury “contributes directly”
to current pain and that she did not have pain prior to this incident. These reports do not
establish appellant’s burden of proof because they lack rationalized medical opinion explaining
how appellant’s current back condition is related to her employment incident. Further, the Board
has held that, when a physician concludes a condition is causally related to employment because
the employee was asymptomatic before the employment injury, the opinion is insufficient,
without supporting medical rationale, to establish causal relationship.5 Thus, Dr. Booher’s
contention that appellant did not have pain prior to the work incident cannot establish causation.
Moreover, in January 7 and February 12, 2008 medical reports, Dr. Booher reported that
appellant attempted to work an eight-hour day and that her employment activities, including
bending, squatting, pulling, occasional overhead lifting and some heavy lifting caused pain. In
her January 30, 2008 statement, appellant confirmed that she returned to work in August 2007
and that she experienced pain after performing her normal work duties. A recurrence is defined
as a spontaneous change in a medical condition resulting from a previous injury without an
2

R. S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5(x).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

See Thomas A. Petrylak, 39 ECAB 276 (1987).

3

intervening injury or new exposure to the work environment that caused the illness.6 Here,
Dr. Booher attributed appellant’s pain to new employment factors occurring after she returned to
work for an eight-hour day, thereby, implicating a new injury rather than a spontaneous
recurrence of disability. The Board finds that appellant’s current injury does not meet the
definition of a recurrence of disability because the evidence shows that her condition was due to
exposure to new work factors and not to the accepted November 7, 2006 employment injury.
The Board finds that appellant did not demonstrate, with rationalized medical evidence,
that she experienced a spontaneous change in her medical condition resulting from the
November 7, 2006 employment injury; therefore, she has not established a recurrence of
disability causally related to her accepted employment injury.
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability commencing September 1, 2008 causally related to her accepted November 7, 2006
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 14, 2008 decision is affirmed.
Issued: February 3, 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

Supra note 2.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS CANTEEN SERVICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 13-883
Issued: April 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 4, 2013 appellant filed a timely appeal from a February 14, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than two percent impairment of the left leg, for
which he received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 24, 2006 appellant, then a 56-year-old assistant canteen officer, sustained
injury when he slipped and fell on a wet walkway. OWCP accepted the claim for sprains to the
lumbar region and right shoulder, acromioclavicular.
On April 18, 2007 appellant struck his left knee against barrels at work. OWCP accepted
the claim for sprains to the lumbar spine and both knees and legs and a tear of the left medial
meniscus.2 On September 7, 2007 appellant underwent an authorized left arthroscopic medial
meniscus repair. This claims were doubled into the current case record.3 Appellant retired from
federal employment on or about July 16, 2008.
On July 2, 2009 OWCP received appellant’s June 16, 2009 claim for a schedule award.
In a February 17, 2009 report, Dr. John W. Ellis, a family practitioner, opined that under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) appellant had 18 percent impairment to the left lower extremity.
In a November 18, 2009 report, he noted the history of injury and presented findings on
examination. Dr. Ellis stated that he applied the sixth edition of the A.M.A., Guides to rate an 18
percent permanent impairment of appellant’s left leg due to peripheral nerve impairment under
Table 16-2, page 535.
In an April 7, 2010 report, Dr. Ronald Blum, an OWCP medical adviser, reviewed the
record and recommended that appellant be referred for a second opinion examination. He noted
that the impairment rating by Dr. Ellis for the left leg was based on abnormalities found in the
L4, L5 and S1 nerve roots but the report of electrodiagnostic testing did not support the presence
of radiculopathy.
Appellant was referred by OWCP for examination by Dr. J. Clark Race, a Board-certified
orthopedic surgeon. In a May 18, 2010 report, he reviewed the history of injury, medical
treatment and presented findings on examination. Dr. Race reviewed the electromyogram and
nerve conduction studies obtained on October 7, 2008 which were reported as normal for the left
side. On examination, he found no evidence of radicular abnormalities and concluded that there
was no permanent impairment for the accepted lumbar injury. Dr. Race advised that appellant’s
left leg impairment would be based on the left medial meniscus tear. Under Table 16-3 for
meniscal injury, he assigned class 1 impairment. Dr. Race assigned a Functional History
(GMFH) modifier of 1; a Physical Examination (GMPE) modifier of 1; and a Clinical Studies
(GMCS) modifier of 0-1. He utilized the net adjustment formula of (GMFH - CDX) (1-1) +
(GMPE - CDX) (1-1) + (GMCS - CDX) (0-1) to find a net adjustment of negative 1, which
equaled a grade B. This yielded a two percent impairment of the left leg.

2

This claim was accepted under OWCP claim number xxxxxx958, which has been consolidated with claim
number xxxxxx732.
3

The Board notes that OWCP developed the medical evidence with regard to appellant’s right shoulder
condition; however, that aspect of the case is not presently on appeal.

2

On March 11, 2011 OWCP granted appellant a schedule award for two percent
permanent impairment of the left leg based on the partial medial meniscectomy.
On August 17, 2012 appellant filed a claim for an increased schedule award. On
October 27, 2011 Dr. Eduardo Garcia, a Board-certified anesthesiologist and pain specialist,
reviewed the history of injury, medical treatment, clinical studies and provided examination
findings of the left knee. He opined that appellant had a two percent left leg impairment due to
the left medial meniscus tear and repair. Under Table 16-3, page 509, Dr. Garcia assigned class
1 impairment for the meniscal tear and repair. He assigned grade modifier functional history of
0; found grade modifier physical examination to be nonapplicable; and grade modifier clinical
studies of 1. Dr. Garcia utilized the net adjustment formula of (GMFH - CDX) (0-1) + (GMPE CDX) (N/A) + (GMCS - CDX) (1-1) to find a net adjustment of -1, which equaled a grade B,
which yielded two percent final impairment of the left lower extremity.
In a September 11, 2012 report, Dr. H. Mobley, a medical adviser, reviewed Dr. Garcia’s
impairment rating of appellant’s left lower extremity. He found that appellant reached maximum
medical improvement on October 27, 2011, the date of Dr. Garcia’s examination. Dr. Mobley
determined that Dr. Garcia properly applied the sixth edition of the A.M.A., Guides to rate two
percent left leg impairment based on a partial medial meniscectomy. Since appellant was
previously rated with two percent impairment, the medical evidence did not support an increase
in impairment to the left leg.
By decision dated September 28, 2012, OWCP denied appellant’s claim for an additional
schedule award for the left lower extremity.
On October 24, 2012 appellant requested a review of the written record before an OWCP
hearing representative. He submitted copies of Dr. Garcia’s October 27, 2011 report and
Dr. Mobley’s review.
By decision dated February 14, 2013, an OWCP hearing representative affirmed the
September 28, 2012 decision. She found that the medical evidence did not support more than
two percent impairment to appellant’s left leg.4
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.5 Absent any
new exposure to employment factors, a claim for an increased schedule award may be based on
medical evidence establishing the progression of an employment-related condition that has
resulted in a greater permanent impairment.6

4

The hearing representative noted that OWCP did not adjudicate the right arm in the September 28, 2012
decision and she remanded that aspect of the claim for further review and a final decision.
5

A.A., 59 ECAB 726 (2008); Tommy R. Martin, 56 ECAB 273 (2005); Rose V. Ford, 55 ECAB 449 (2004).

6

James R. Hentz, 56 ECAB 573 (2005); Linda T. Brown, 51 ECAB 115 (1999).

3

In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.7 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.8
The schedule award provision of FECA and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. 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.10 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. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.11 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to rate permanent impairment.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.14 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
may be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides with an OWCP medical adviser providing
rationale for the percentage of impairment specified.16
7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
9

20 C.F.R. § 10.404.

10

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

11

Ronald R. Kraynak, 53 ECAB 130 (2001).

12

Supra note 8 at Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
13

A.M.A., Guides 3-6 (6th ed. 2008).

14

Id. at 494-531.

15

Id. at 521.

16

See supra note 8 at Chapter 2.808.6(d) (August 2002).

4

ANALYSIS
The Board finds that appellant did not establish that he sustained more than two percent
impairment of the left leg based upon a partial medial meniscectomy.
OWCP combined claim number xxxxxx958 into the current case, which was accepted for
the conditions of sprains to the lumbar spine, left knee and leg and a tear of the left medial
meniscus, for which appellant underwent surgery. By decision dated March 11, 2011, appellant
received a schedule award for two percent permanent impairment of the left lower extremity
based on the partial medial meniscectomy.
In support of his claim for increased impairment, appellant submitted medical evidence
from Dr. Garcia. With regard to the left lower extremity, Dr. Garcia stated that appellant had
two percent impairment due to the partial meniscus tear and repair. Under Table 16-3, page 509,
appellant had class 1 impairment for the meniscal tear and repair. Under Table 16-6, page 516,
Dr. Garcia assigned a functional history modifier 0; under Table 16-7, page 517, he found that
the physical examination modified was not applicable; and under Table 16-8, page 519, he
assigned a clinical studies modifier 1. Under Table 16-9, page 520, Dr. Garcia utilized the net
adjustment formula of (GMFH - CDX) (0-1) + (GMPE - CDX) (N/A) + (GMCS - CDX) (1-1) to
find a net adjustment of -1. This equals grade B, which represents two percent impairment to the
left lower extremity.
Dr. Mobley reviewed Dr. Garcia’s impairment evaluation and determined that appellant
reached maximum medical improvement on October 27, 2011. He agreed with Dr. Garcia’s
impairment rating under the A.M.A., Guides. The Board finds that Dr. Garcia properly utilized
the A.M.A., Guides to rate appellant’s impairment to the left lower extremity. There is no other
probative medical evidence of record to establish greater permanent impairment. As the rating
by Dr. Garcia was the same as that provided by Dr. Race, the medical evidence does not
establish greater impairment than previously compensated.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing the progression of his employment-related
condition resulting in greater impairment.
CONCLUSION
The Board finds that appellant has two percent permanent impairment of the left lower
extremity, for which he received a schedule award.

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ORDER
IT IS HEREBY ORDERED THAT the February 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1701
Issued: April 24, 2013

Case Submitted on the Record

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

JURISDICTION
On August 13, 2012 appellant, through his attorney, filed a timely appeal from a May 14,
2012 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.
ISSUES
The issues are: (1) whether appellant has established a recurrence of disability on or
about July 27, 2004; and (2) whether appellant has established a brachial plexopathy condition as
a consequence of her employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated March 17, 2010, the
Board found that the reports from the referee physician, Dr. William Kirkpatrick, a Boardcertified orthopedic surgeon, were insufficient to resolve the conflict in the medical evidence.2
The Board found that Dr. Kirkpatrick did not provide a rationalized medical opinion with respect
to a recurrence of disability commencing July 27, 2004, or with respect to whether appellant
sustained a brachial plexopathy or ulnar neuropathy as a result of his employment injury.3 The
history of the case as provided in the Board’s prior opinion is incorporated herein by reference.
On return of the case record, OWCP selected Dr. Noubar Didizian, a Board-certified
orthopedic surgeon, as a referee physician. The record indicates that five physicians were
bypassed during the selection process, with a screenshot documenting the reasons each physician
was bypassed. The record also contains an ME023 appointment schedule report identifying
Dr. Didizian as the selected physician.
In a report dated October 20, 2010, Dr. Didizian provided a history and results on
examination. He reported that appellant had a positive Tinel’s at the wrist for the median nerve
bilaterally, with Phalen’s and compression tests negative. Dr. Didizian stated that the clinical
examination was negative for any evidence of brachial plexopathy or thoracic outlet syndrome.
He indicated that appellant had cubital tunnel syndrome bilaterally with some subluxation of the
ulnar nerves, which he opined was not related to the accepted carpal tunnel syndrome, as these
conditions were completely different. Dr. Didizian also stated, “It is my medical opinion that the
patient did not sustain any recurrence of total disability on [July 27, 2004] causally related to the
accepted employment injury of bilateral carpal tunnel syndrome.”
By decision dated January 6, 2011, OWCP found that appellant had not established a
recurrence of disability commencing July 27, 2004. It also found that the medical evidence did
not establish brachial plexopathy or ulnar neuropathies as employment related.
Appellant requested a hearing before an OWCP hearing representative, which was held
on April 13, 2011. By decision dated July 5, 2011, the hearing representative found that
Dr. Didizian did not provide a rationalized medical opinion with respect to whether there was an
employment-related brachial plexopathy. He found that the opinion was rationalized with
respect to ulnar neuropathies. The hearing representative did not specifically discuss
Dr. Didizian’s opinion as to a recurrence of disability commencing July 27, 2004. He directed
OWCP to prepare an amended statement of accepted facts (SOAF)4 and refer the case to
Dr. Didizian for an electromyogram/nerve conduction velocity (EMG/NCV) study and a
2

Docket No. 09-1270 (issued March 17, 2010).

3

OWCP accepted a bilateral carpal tunnel syndrome and bilateral median neuropathy as a result of employment
activity as a mail handler.
4

The hearing representative stated that the SOAF should include information provided by appellant as to rowing
activity, since appellant was concerned as to when he could return to such activity. In addition, OWCP was directed
to include information regarding appellant’s work duties and to omit information as to receipt of government
benefits.

2

supplemental report as to brachial plexopathy and a recurrence of disability commencing
July 27, 2004.
In a report dated September 20, 2011, Dr. Didizian stated that the EMG/NCV study
showed chronic, moderately severe carpal tunnel syndrome on the right and moderate carpal
tunnel syndrome on the left. He stated, “It is my medical opinion that the patient did not sustain
any total disability on [July 27, 2004] and he was capable of continuing to work. It is also
Dr. Didizian’s medical opinion that the patient does not have any brachial plexopathy as a
consequence of the accepted employment injury.”
By decision dated October 19, 2011, OWCP denied the claim for a recurrence of
disability commencing July 27, 2004. It also found that the brachial plexopathy condition was
not established as a consequence of the employment injuries.
Appellant requested a hearing before an OWCP hearing representative, which was held
on February 28, 2012. In a report dated December 16, 2011, the attending osteopath, Dr. Scott
Fried, opined that appellant remained disabled due to employment-related carpal tunnel
syndrome, median neuropathies and brachial plexopathies.
By decision dated May 14, 2012, the hearing representative found OWCP had properly
denied expansion of the claim to include brachial plexopathy and properly denied a 2004
recurrence of disability claim. The hearing representative stated that there was no rationalized
medical evidence in support of appellant’s claims and that Dr. Didizian represented the weight of
the medical evidence.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”5 OWCP regulations state that a recurrence of disability also means an
inability to work when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.”6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a modified position the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability. As part of this burden, the employee must show either a change in the nature and

5

20 C.F.R. § 10.5(x).

6

Id.

3

extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements.7
In situations where OWCP secures an opinion from a referee examiner for the purpose of
resolving a conflict in the medical evidence under 5 U.S.C. § 8123(a), and the opinion requires
clarification or elaboration, OWCP has a responsibility to secure a supplemental report that
properly resolves the conflict.8
ANALYSIS -- ISSUE 1
As the prior Board decision indicated, there was a conflict in the medical evidence as to
the issue of an employment-related recurrence of disability on or about July 27, 2004. OWCP
selected Dr. Didizian as a referee physician to resolve the conflict. On appeal, appellant has
asserted that Dr. Didizian was not properly selected in accord with OWCP procedures.9 The
selection in this case was supported by an ME023 report identifying Dr. Didizian. In addition,
the record contains screen shots documenting the reasons any physician was bypassed prior to
the selection of Dr. Didizian. As the Board noted in K.S., such documentation is sufficient to
establish that OWCP met its obligation to properly select an impartial referee physician.10 The
Board finds Dr. Didizian was properly selected as a referee physician in this case.
Having established that Dr. Didizian was properly selected as a referee physician, the
issue is whether his reports properly resolved the conflict in the medical evidence. In the
Board’s prior decision, the requirement that a physician’s opinion must be accompanied by
medical rationale was clearly stated. With respect to a recurrence of disability as of July 27,
2004, Dr. Didizian stated, in both his October 20, 2010 and September 20, 2011 reports, that
appellant did not have a total disability as of July 27, 2004, but this opinion was not
accompanied by any supporting explanation or discussion of evidence that would constitute
medical rationale. He did not refer to evidence as to the time period in question and explain why
he did not believe there was a recurrence of total disability. OWCP should have asked
Dr. Didizian to provide the necessary medical rationale to support his opinion. As the Board
noted in its prior decision, OWCP has the responsibility to secure a rationalized medical opinion
from the referee physician on the issues presented.11

7

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
8

Phillip H. Conte, 56 ECAB 213 (2004).

9

At the time of the referral to Dr. Didizian, OWCP used the Physician Directory Service (PDS) to select a referee
physician. As of July 2011, the Medical Management Application was used to select a referee physician. Federal
(FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5
(December 2012).
10

Docket No. 12-184 (issued September 11, 2012) (ME023 and screen shots showing reasons for bypass were
sufficient to establish referee was properly selected from PDS). See also C.W., Docket No. 12-1211 (issued
November 15, 2012).
11

See Phillip H. Conte, 56 ECAB 213 (2004).

4

The Board accordingly finds that the case must again be remanded to OWCP.
Dr. Didizian should be asked to provide a supplemental report containing medical rationale with
respect to his opinions on the issues presented. If he is unable or unwilling to provide such a
report, OWCP should select another referee physician in accord with its procedures. After such
further development as OWCP deems necessary, it should issue an appropriate decision.
LEGAL PRECEDENT -- ISSUE 2
With respect to consequential injuries, it is an accepted principle of workers’
compensation law that, when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.12 The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.13
ANALYSIS -- ISSUE 2
As with the recurrence of disability issue discussed above, the case was referred to
Dr. Didizian to resolve a conflict in the medical evidence. In his October 20, 2010 report,
Dr. Didizian stated that the clinical examination was negative for evidence of a brachial
plexopathy. The hearing representative remanded the case for a rationalized opinion as to
whether a brachial plexopathy condition had developed as a consequence of the employment
injuries. In the September 20, 2011 report, Dr. Didizian discussed the results of current
EMG/NCV studies with respect to carpal tunnel syndrome, and then opines that appellant did not
have a brachial plexopathy as a consequence of the accepted employment injury. He did not
provide any explanation that would constitute a rationalized medical opinion on the issue.
The case will accordingly be remanded to OWCP to secure a rationalized medical
opinion on this issue as well, in accord with the above instructions. After such further
development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the case must be remanded to OWCP for further development with
respect to both the recurrence of disability and consequential injury issues.

12

Albert F. Ranieri, 55 ECAB 598 (2004).

13

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 14, 2012 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: April 24, 2013
Washington, DC

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

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

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

6