United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Beachwood, OH, Employer
__________________________________________

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

Docket No. 09-1451
Issued: February 18, 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 May 20, 2009 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated April 23, 2009. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an L4-5 disc herniation due to her March 6, 2003
employment injury.
FACTUAL HISTORY
On March 6, 2003 appellant, then a 28-year-old letter carrier, sustained injury when she
slipped on ice injuring her left foot, low back and tailbone. The Office accepted her claim for
left foot strain, left ankle sprain and coccyx strain on April 17, 2003.
Dr. Curtis W. Smith, an attending Board-certified orthopedic surgeon, diagnosed
contusion and strain of the lumbar spine on April 9, 2003. On July 2, 2003 he noted that she had
radiation of pain down the low back toward her left leg, foot and ankle and repeated his

diagnoses. The Office subsequently accepted a lumbar strain and contusion on July 28, 2003.
On August 1, 2003 appellant underwent a magnetic resonance imaging (MRI) scan of the lumbar
spine, which found no herniated discs or stenosis.
Dr. Smith released appellant to a trial of light duty for eight hours a day on
October 29, 2003. On December 10, 2003 he found that appellant had limited range of motion in
her back with pain and weakness, tenderness and spasm in the paraspinal muscles. Dr. Smith
repeated these findings on January 14, 2004. His follow-up reports supported appellant’s low
back condition based on findings of limited range of motion, tenderness and spasm in her lower
back.
On January 27, 2004 appellant filed a notice of traumatic injury claim for her left foot
and ankle when she slipped on ice in the performance of duty.1 The Office accepted on
November 15, 2004 that she sustained a left ankle strain.
On August 2, 2006 Dr. Smith found that appellant had a smooth gait pattern with only
mild tenderness in the lower back. He examined appellant on December 6, 2006 and noted that
she reported a significant flare up of low back pain on the left with no new injury. Dr. Smith
found tenderness and spasm in the paraspinal muscles bilaterally with positive left straight leg
raising. X-rays were normal with no evidence of fracture, dislocation or arthritic change.
Dr. Smith diagnosed contusion and strain of the lumbar spine and contusion of the coccyx.
Appellant filed a third notice of traumatic injury on October 6, 2004 alleging on
September 24, 2004 she was chased by dogs while in the performance of injury. The Office
accepted on October 20, 2004 her claim for left knee, ankle and foot sprains.2
In a note dated February 21, 2007, Dr. Smith listed appellant’s complaint of pain
radiating down to her buttocks and posterior thigh region. On examination, he found tenderness
and spasm over the paraspinal muscles bilaterally and limited range of motion with a positive left
straight leg raising. Dr. Smith requested authorization for a repeat MRI scan. Appellant
underwent an MRI scan on March 6, 2007, which demonstrated a right posterolateral disc
herniation at L4-5. Dr. Smith reviewed this study on March 20, 2007. On May 15, 2007 he
stated that appellant had a herniated disc at L4-5, which did not require surgical intervention.
Dr. Susan E. Stephens, a Board-certified orthopedic surgeon, examined appellant on
May 4, 2007 and noted her history of injury. She found no tenderness and full range of motion
of the lumbosacral spine. Dr. Stephens found negative straight leg raising and normal motor and
neurological examinations. She reviewed the MRI scan and found it demonstrated a very small
L4-5 disc herniation with no impingement of the canal, foraminal or nerve root. Dr. Stephens
diagnosed lumbosacral strain.

1

The facts and circumstances regarding this injury are found in subsidiary file number xxxxxx398.

2

The facts and circumstances of this claim are contained in subsidiary file number xxxxxx170.

2

In notes of June 12 and August 17, 2007, Dr. Smith stated that appellant had changed her
activity level and that her pain had decreased. He noted that the Office had not accepted a
herniated lumbar disc as employment related.
In a letter dated December 5, 2007, the Office informed appellant that the medical
evidence of record did not support that her herniated disc was due to her accepted injuries.
On February 12, 2008 Dr. Smith stated that appellant reported right side back pain. In
notes dated March 11 and April 22, 2008, he found tenderness and spasm in the paraspinal
muscles of her low back and diminished range of motion. Dr. Smith diagnosed lumbar strain.
In an August 27, 2008 decision, the Office denied appellant’s claim for a herniated
lumbar disc due to her accepted March 6, 2003 employment injury. It found that she failed to
submit sufficient medical opinion evidence to establish causal relation.
Appellant, through her attorney, requested an oral hearing on August 31, 2008. A
November 4, 2008 note from Dr. Todd S. Hochman, a Board-certified internist, reported some
tenderness throughout the lumbar region and decreased patellar reflexes. A November 11, 2008
MRI scan demonstrated a disc herniation at L5-S1 and small right disc protrusion at L4-5. On
December 9, 2008 Dr. Hochman reviewed appellant’s MRI scan and recommended pain
management.
In a December 30, 2008 report, Dr. Charles V. Barrett, an osteopath, noted appellant’s
history of injury and MRI scan findings. He found mild lumbar pain with palpation. Dr. Barrett
advised that appellant had underlying lumbar facet disease from genetic factors or weight. He
stated, “After the work injury, the patient has experienced what appears to be lumbar facet pain
which has been refractory to [treatment by medication].” Dr. Barrett recommended lumbar facet
joint injections. He stated that aggravation of lumbar spondylosis without myelopathy should be
added to her claim.
On January 1, 2009 Dr. Hochman found discomfort throughout the lumbar region and
decreased deep tendon reflexes.
Appellant testified at the oral hearing on February 9, 2009 that she had no back pain prior
to the March 6, 2003 employment injury. She retired from the employing establishment on
January 25, 2007. The hearing representative left the record open for 30 days for the submission
of additional medical evidence.
On April 3, 2009 Dr. Hochman requested the MRI scan contemporaneous with
appellant’s 2003 employment injury.
In an April 23, 2009 decision, the Office hearing representative affirmed the August 27,
2008 decision finding that the medical evidence of record did not establish a causal relationship
between appellant’s herniated lumbar disc and her accepted employment injury.

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LEGAL PRECEDENT
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or 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.3 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.4 As part of an employee’s burden of
proof, he or she must present rationalized medical opinion evidence, based on a complete factual
and medical background, establishing causal relationship. The question of whether there is a
causal relationship is medical in nature, and generally, can be established only by medical
evidence. This medical opinion must be based upon a complete factual and medical background
with an accurate history of appellant’s employment injury. The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.5
ANALYSIS
Appellant sustained injury on March 6, 2003 to her left foot, ankle, back and coccyx.
The Office accepted that she sustained a back strain as a result of her accepted employment
injury. Dr. Smith, a Board-certified orthopedic surgeon, addressed her continued back pain and
recommended an MRI scan. The August 1, 2003 MRI scan of the lumbar spine revealed no
herniated discs or stenosis. Appellant continued to experience back symptoms and Dr. Smith
recommended a repeat MRI scan on March 6, 2007, which demonstrated a right posterolateral
herniation at L4-5. Dr. Smith did not provide any statement addressing the causal relationship
between appellant’s herniated disc diagnosed in 2007 and her accepted employment injuries. His
reports do not establish that appellant’s 2007 disc herniation was due to the March 6, 2003
employment injury.
Dr. Smith referred appellant to Dr. Stephens, a Board-certified orthopedic surgeon, who
examined her on May 4, 2007 and diagnosed lumbar strain. Dr. Stephens reviewed appellant’s
MRI scan and emphasized that the disc herniation was very small. She did not provide any
opinion regarding the causal relationship between the disc herniation and appellant’s accepted
employment injury. As Dr. Stephens did not provide the necessary medical opinion evidence,
her report is not sufficient to establish appellant’s claim.

3

20 C.F.R. § 10.5(ee).

4

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

5

James Mack, 43 ECAB 321, 328-29 (1991).

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Appellant sought treatment from Dr. Hochman, a Board-certified internist, who requested
another MRI scan. A November 11, 2008 MRI scan demonstrated a disc herniation at L5-S1 and
small right disc protrusion at L4-5. Dr. Hochman reviewed appellant’s MRI scan and
recommended pain management. He did not offer any opinion on the relationship between the
diagnosed disc herniations and the accepted employment injury. Following the oral hearing,
Dr. Hochman requested that appellant provide him with a copy of her first MRI scan.
Dr. Barrett, an osteopath, examined appellant on December 30, 2008 and reviewed her
history of injury and diagnostic studies. He stated that appellant had underlying lumbar facet
disease from genetic factors or weight. Dr. Barrett noted that appellant did not experience any
pain from this condition until after her work and recommended lumbar facet joint injections.
Dr. Barrett stated that aggravation of lumbar spondylosis without myelopathy should be added to
her claim. Dr. Barrett’s opinion on causal relationship is, at best, vague and not well
rationalized. He failed to provide any medical reasoning in support of his opinion. The Board
has held that a temporal relationship alone is insufficient to establish causal relationship.6 The
mere assertion that appellant’s underlying condition was asymptomatic prior to her employment
injury is not sufficient to establish that the employment injury aggravated the underlying lumbar
facet disease.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish that her accepted employment injury resulted in a herniated disc or aggravation of
lumbar degenerative disease.

6

Louis R. Blair, Jr., 54 ECAB 348, 350 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the April 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 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
__________________________________________
M.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Palm Beach, FL, Employer
__________________________________________

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

Docket No. 17-1221
Issued: August 21, 2017

Case Submitted on the Record

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

JURISDICTION
On May 15, 2017 appellant filed a timely appeal from a January 30, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a back injury causally
related to a November 14, 2016 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 29, 2016 appellant, then a 61-year-old voluntary services officer, filed a
traumatic injury claim (Form CA-1) for a lower back sprain/strain she allegedly sustained on
November 14, 2016 while “bringing in donations of books, clothing, etc.”2
On November 15, 2016 appellant sought medical treatment at the employing
establishment’s emergency department. In a November 15, 2016 report, Dr. Jean S. Pierre, an
attending Board-certified emergency medicine physician, noted that appellant complained of low
back pain radiating into her left leg after lifting heavy boxes at work. He reported that, upon
physical examination, appellant exhibited tenderness at the L4, L5, and S1 spinal levels, straight
leg raising to 80 degrees, and the ability to cross her legs. The neurologic portion of the
examination revealed good symmetrical strength and coordination with no gross focal weakness,
sensory deficit, or tremor. Dr. Pierre diagnosed low back pain and left sciatica and noted that
there was an abnormal computerized tomography (CT) scan of appellant’s lumbar spine.3 In
another November 15, 2016 report pertaining to appellant’s emergency room visit, Joyce
Anderson, an attending staff nurse, noted that appellant complained of low back pain which
radiated down her left leg.
In a November 17, 2016 report, Dr. Scott Norris, an attending osteopath, noted that
appellant returned for repeat evaluation of her lower back and complained of discomfort about
her lower back which began two days prior.4 Appellant reported that she engaged in lifting,
pushing, and carrying, and noted increased back pain with radiation to the left leg. Dr. Norris
advised that physical examination revealed intact motor functions with positive straight leg
raising on the right. He diagnosed low back pain and neuritis and/or radiculitis due to
displacement of lumbar intervertebral disc. Dr. Norris prescribed pain medication, and referred
appellant for physical therapy treatment.
In a November 17, 2016 duty status report (Form CA-17), Dr. Norris listed the date of
injury as November 14, 2016 and the mechanism of injury as lifting and pushing books. He
diagnosed exacerbation of lumbar disc disease and indicated that appellant could not perform
any work.
In a November 17, 2016 form entitled Authorization for Examination and/or Treatment
(Form CA-16), Dr. Norris indicated in the attending physician’s report portion that he first
examined appellant on November 17, 2017 and he listed a diagnosis of lumbar degenerative disc
disease. He checked the box marked “Yes” indicating that the condition found was caused or

2

Appellant had stopped work from November 17 to 28, 2016.

3

Dr. Pierre obtained a November 15, 2016 CT scan of appellant’s lumbar spine which contained an impression of
mild lumbar spine scoliosis, at least moderate multilevel degenerative disc disease, dorsal epidural lipomatosis,
multilevel facet joint degenerative disease, multilevel foraminal narrowing (very severe in the left neural foramen at
LS-S1), and large extruded disc fragment extending from L3-4 to the mid L4 vertebral body, resulting in severe
effacement of the spinal canal at L3-4 and compression of the left L4 nerve root.
4

The report included a “case injury date” of November 14, 2016 at the top.

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aggravated by the employment activity described, which was noted to be “lifting.” He also
indicated that appellant was totally disabled from November 17 to 28, 2016.
In a November 28, 2016 narrative report, Dr. Norris indicated that, upon physical
examination, appellant exhibited continued spasm in the lumbar region, positive straight leg
raising on the left, and discomfort upon back rotation and lateral bending. He diagnosed low
back pain and neuritis and/or radiculitis due to displacement of intervertebral disc. In a
November 28, 2016 Florida Workers’ Compensation form, Dr. Norris diagnosed low back pain
and indicated that appellant had no functional limitations identified or restrictions prescribed as
of November 28, 2016. In another November 28, 2016 report, Dr. Norris diagnosed low back
pain and noted that appellant reported that she felt she could return to full duty.
In reports dated December 5, 6, and 7, 2016, Kay Deerman, an attending physical
therapist, described appellant’s physical therapy sessions.5
In a December 12, 2016 report, Dr. Norris noted that appellant continued to complain of
back pain. He listed a case injury date of November 14, 2016 and diagnosed neuritis and/or
radiculitis due to displacement of intervertebral disc. Dr. Norris indicated that appellant
remained on full duty and recommended that she continue with physical therapy.
In a December 19, 2016 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim, including a physician’s opinion supported by a
medical explanation as to how the reported employment factors caused or aggravated the
claimed injury. It allotted appellant 30 days to submit the requested information.
Appellant submitted a December 29, 2016 report from Dr. Norris who listed a case injury
date of November 14, 2016 and diagnosed low back pain neuritis and/or radiculitis due to
displacement of intervertebral disc. Dr. Norris recommended that appellant undergo a lumbar
magnetic resonance imaging (MRI) scan.6 Appellant also submitted an undated Form CA-17 in
which Dr. Norris indicated that she could not work.
In a January 30, 2017 decision, OWCP determined that appellant failed to meet her
burden of proof to establish a November 14, 2016 injury. It accepted that the November 14,
2016 employment incident occurred as alleged and that a medical condition had been diagnosed.
However, appellant failed to establish that the diagnosed lumbar condition was causally related
to the accepted employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
5

Appellant also submitted several administrative documents from December 2016, including medical
appointment forms, medical referral forms, pharmacy receipts, Medical Travel Refund Request forms (Form
OWCP-957), and Claim for Medical Reimbursement forms (Form OWCP-915).
6

The record contains a December 29, 2016 imaging order for an MRI scan.

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including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.8 The second component is whether the employment incident caused a
personal injury.9 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.10
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.11
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.12
ANALYSIS
Appellant claimed that on November 14, 2016 she suffered a lower back sprain/strain at
work while “bringing in donations of books, clothing, etc.” OWCP found that appellant
established fact of injury; however, it denied her traumatic injury claim because the medical
evidence failed to establish a causal relationship between the diagnosed lumbar condition and the
accepted November 14, 2016 employment incident. The Board finds that appellant failed to
meet her burden of proof to establish that her claimed lumbar condition was employment related.
In a November 15, 2016 report, Dr. Pierre, an attending physician, noted that appellant
complained of low back pain radiating into her left leg after lifting heavy boxes at work. He
diagnosed low back pain and left sciatica and noted an abnormal lumbar CT scan. The Board
7

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
10

Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

12

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).

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finds that this report is of limited probative value with respect to appellant’s claimed
November 14, 2016 work injury because Dr. Pierre did not provide a clear opinion that she
sustained a diagnosed condition due to the accepted November 14, 2016 employment incident.
The Board has held that medical evidence which does not offer a clear opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.13
In a November 17, 2016 report, Dr. Norris, an attending physician, noted that appellant
returned for repeat evaluation of her lower back and complained of discomfort about her lower
back which began two days prior.14 Appellant reported that she engaged in lifting, pushing, and
carrying, and noted increased back pain with radiation to the left leg. Dr. Norris diagnosed low
back pain and neuritis and/or radiculitis due to displacement of intervertebral disc, prescribed
pain medication, and referred appellant for physical therapy treatment. The Board finds that this
report is of limited probative value with respect to establishing a November 14, 2016 work
injury. Although Dr. Norris provided a description of the November 14, 2016 employment
incident, he did not provide any opinion that the diagnosed conditions, low back pain and
neuritis and/or radiculitis due to displacement of intervertebral disc, were related to these
factors.15 Additionally, his November 17, 2016 CA-16 and CA-17 failed to explain how the
reported “lifting” incident either caused or aggravated appellant’s lumbar degenerative disc
disease.16
In a November 28, 2016 narrative report, Dr. Norris reported physical examination
findings and diagnosed low back pain and neuritis and/or radiculitis due to displacement of
intervertebral disc.17 In a December 12, 2016 report, he listed a case injury date of
November 14, 2016 and diagnosed neuritis and/or radiculitis due to displacement of
intervertebral disc. On December 29, 2016 Dr. Norris listed a case injury date of November 14,
2016 and diagnosed low back pain neuritis and/or radiculitis due to displacement of
intervertebral disc. His above-noted reports are of limited probative value on the relevant issue
in that they do not contain an opinion on the cause of the diagnosed conditions. None of
Dr. Norris’ reports constitutes a rationalized medical opinion relating a diagnosed medical
condition to an accepted employment factor. To establish her claim for a November 14, 2016
work injury, appellant must submit rationalized medical evidence establishing that an
employment factor caused a personal injury and she has not submitted such evidence in the
present case.18
Appellant submitted a November 15, 2016 report from Joyce Anderson, a nurse, and
December 5, 6, and 7, 2016 reports of Kay Deerman, a physical therapist. The Board notes that
13

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

14

The report included a “case injury date” of November 14, 2016 at the top.

15

See supra note 13.

16

See Victor J. Woodhams, supra note 9.

17

In two form reports dated November 28, 2016, Dr. Norris listed a case injury date of November 14, 2016 and a
diagnosis of low back pain.
18

S.T., Docket No. 17-0913 (issued June 23, 2017).

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these reports are of no probative value with respect to appellant’s claim for a November 14, 2016
work injury because under FECA, the report of a nurse19 or a physical therapist20 does not
constitute probative medical evidence as they are not physicians under FECA.21
For these reasons, appellant failed to establish a November 14, 2016 work injury and, has
thus failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a back injury causally related to a November 14, 2016 employment incident.

19

P.S., Docket No. 17-0598 (issued June 23, 2017) (a nurse is not a physician under FECA).

20

S.T., Docket No. 17-0913 (issued June 23, 2017) (physical therapists are not considered physicians under
FECA).
21

See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); L.L., Docket No. 13-829 (issued August 20, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the January 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.22
Issued: August 21, 2017
Washington, DC

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

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

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

22

The record contains a Form CA-16 dated November 17, 2016 and signed by the employing establishment. A
properly executed CA-16 form can form a contractual agreement for payment of medical expenses, even if the claim
is not accepted. See 20 C.F.R. § 10.300; Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure
Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012). Upon
return of the case record, OWCP should address this issue.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE NAVY, CONCORD
NAVAL WEAPONS STATION, Concord, CA,
Employer
__________________________________________

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Appearances:
Tracy L. Kenney, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1812
Issued: January 25, 2010

Case Submitted on the Record

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

JURISDICTION
On July 7, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 26, 2009 nonmerit decision denying his request for
reconsideration. The last merit decision was issued by the Office on March 12, 2008. Because
more than one year elapsed between the Office’s last merit decision and the filing of this appeal
on July 7, 2009, the Board lacks jurisdiction to review the merits of this claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
On appeal, appellant contends that the Office should have expanded his claim to include
additional diagnosed conditions.
1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On September 10, 1982 appellant, then a 55-year-old stevedore, filed a traumatic injury
claim alleging that he sustained a back injury in the performance of duty. The Office accepted
his claim for right sciatica. Appellant stopped working in 1984 and received appropriate wageloss compensation and medical benefits.
In a decision dated August 24, 2006, the Office terminated appellant’s compensation and
medical benefits effective September 3, 2006 on the grounds that his accepted sciatica condition
had resolved. Its decision was based on the July 21, 2006 referee report of Dr. John W.
Batcheller, a Board-certified orthopedic surgeon, who found that appellant no longer had
residuals of the accepted condition and that his current medical conditions, which included
lumbar spondylosis, were not causally related to the accepted injury. By decision dated April 4,
2007, an Office hearing representative affirmed the termination of benefits. On March 12, 2008
the Office denied modification of its previous decisions, finding that the weight of the medical
evidence established that the accepted condition had totally resolved. In a nonmerit decision
dated July 28, 2008, it denied appellant’s request for reconsideration.
On December 28, 2008 appellant submitted a request for reconsideration. He contended
that the Office should have expanded his claim to include bulging discs and herniations, as
diagnosed by his treating physicians. Appellant also argued that the Office failed to properly
consider all of the medical evidence of record, including documents relating to his other
diagnosed conditions. He did not submit any additional documents in support of his
reconsideration request.
By decision dated March 26, 2009, the Office denied appellant’s request for merit review
on the grounds that his request neither raised substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT
Under section 8128 (a) of the Federal Employees’ Compensation Act,2 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,3 which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence that: (i) shows that the Office erroneously applied or interpreted a specific
point of law; or (ii) advances a relevant legal argument not previously considered by the Office;
or (iii) constitutes relevant and pertinent new evidence not previously considered by the Office.

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

2

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
Appellant’s December 28, 2008 request for reconsideration did not demonstrate that the
Office erroneously applied or interpreted a specific point of law, or that he advanced a relevant
legal argument not previously considered by the Office. Although appellant alleged that the
Office did not follow certain procedures by failing to expand his claim to include bulging and
herniated discs, he submitted no evidence to support his contention. Moreover, his argument that
he continues to suffer residuals from his accepted injury is repetitive. Consequently, appellant is
not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(2).
As noted above, appellant did not submit any new evidence with his reconsideration
request. Therefore, he did not meet the third requirement listed in section 10.606(b) by
constituting relevant and pertinent new evidence not previously considered by the Office.
The Board finds that the Office properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied his December 28, 2008 request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for further
review of the merits under 5 U.S.C. § 8128(a).

4

Id. at § 10.608(b).

3

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


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

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

Docket No. 13-1251
Issued: December 6, 2013

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 May 2, 2013 appellant filed a timely appeal from a November 19, 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 the case.
ISSUE
The issue is whether appellant established that she has more than 41 percent impairment
of the left upper arm for which she received schedule awards.
FACTUAL HISTORY
Appellant, a 43-year-old mail processor, has an accepted occupational disease claim for
right elbow synovitis and tenosynovitis, displacement of a cervical intervertebral disc without
myelopathy, degeneration of a cervical intervertebral disc; spinal stenosis in the cervical region;
1

5 U.S.C. § 8101 et seq.

lesion of a left ulnar nerve, disorder and bursae and tendons in left shoulder, other affections of
the left shoulder and brachial neuritis or radiculitis. The record reflects that she underwent a
February 6, 2004 arthroscopic acromioplasty of left shoulder, an August 23, 2005 left shoulder
surgery; and a C5-6 and C6-7 discectomy on August 20, 2009.
By decision dated December 18, 2006, OWCP granted schedule awards for 37 percent
left upper extremity impairment and 4 percent right upper extremity impairment. By decision
dated December 13, 2007, it reissued the December 18, 2006 schedule awards to reflect a
corrected pay rate. The period of the awards ran from September 12, 2006 through
February 23, 2009.2 By decision dated March 8, 2011, OWCP granted an additional schedule
award for three percent impairment of the left upper extremity. The award ran 9.36 weeks of
compensation during the period January 4 to February 13, 2011.
On October 15, 2012 appellant requested an increased schedule award. In a June 14,
2012 report, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon, noted the history of
injury, provided findings on examination and opined that appellant reached maximum medical
improvement on February 18, 2010. Under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), he found that
there was no ratable impairment of the right or left upper extremity due to cervical impairment.
The left shoulder had 12 percent upper extremity impairment and the left elbow had 2 percent
upper extremity impairment, or a total 14 percent left upper extremity impairment. For the
cervical area, Dr. Shade noted normal motor and sensory examination of the right arm with
radiculopathy of the left upper extremity was not accepted, it was not ratable. For the left
shoulder acromioclavicular joint arthritis distal clavical resection, he found class 1 or 10 percent
default impairment under Table 15-5, page 403 of the A.M.A., Guides. Dr. Shade applied grade
modifier Functional History (GMFH) of 2; grade modifier Physical Examination (GMPE) of 2
and grade modifier Clinical Studies (GMCS) was not applicable. He applied the net adjustment
formula, (GMFH-CDX)(2-1) + (GMPE-CDX)(2-1) + (GMCS-CDX)(n/a), and found a net
adjustment of 2 for a final impairment of 12 percent. For the left epicondylitis condition,
Dr. Shade found class 1 under Table 15-4, page 399. He found grade modifier functional history
of 2; grade modifier clinical studies of 1; and grade modifier physical examination not
applicable. Dr. Shade applied the net adjustment formula (GMFH-CDX)(2-1) + (GMPECDX)(n/a) + (GMCS-CDX)(1-1); and found a net adjustment of 2 for an impairment of 2
percent. He combined the 12 and 2 percent impairments for a final left upper extremity
impairment of 14 percent.
In a November 8, 2012 report, Dr. Michael M. Katz, an OWCP medical adviser,
reviewed the statement of accepted facts and noted that appellant previously received schedule
awards totaling 40 percent for left upper extremity and 8 percent for right upper extremity. He
found the date of maximum medical improvement was June 14, 2012. Dr. Katz noted that
Dr. Shade found no ratable impairment of the left or right upper extremity under Proposed Table
1, Cervical Spinal Nerve Impairment, and reported a normal motor and sensory of both upper
2

While a November 5, 2012 memorandum to the medical adviser notes four percent impairment to the right
upper extremity was issued in 2009, the case record does not contain such a decision. The Board notes that the total
amount of right upper extremity impairment is irrelevant to the issue on appeal which pertains to left upper
extremity impairment.

2

extremities. Utilizing Dr. Shade’s examination findings in conjunction with the A.M.A., Guides,
Dr. Katz agreed with the 13 percent final left upper extremity impairment. He concurred with
Dr. Shade’s rating under the A.M.A., Guides. The left shoulder impairment under Table 15-5,
page 403, for acromioclavicular joint arthritis distal clavicle resection was a 12 percent
impairment. However, Dr. Shade found for left elbow epicondylitis, under Table 15-4, page 399,
that appellant had one percent impairment. Dr. Katz noted that, while appellant had GMFH 2,
page 516 of the A.M.A., Guides provided that the functional grade modifier should be applied
only to the single, highest diagnosis-based impairment (DBI). As the functional grade modifier
had been considered in the left extremity (shoulder), he excluded it from the left elbow
impairment. Dr. Katz found GMFH n/a; GMPE 1 and GMCS n/a n/1. Under the net adjustment
formula, he found (GMPE-CDX) (1-1) equaled zero net adjustment. Dr. Katz found final
impairment was one percent for the elbow. He combined the 12 percent and 1 percent
impairment for a total left upper extremity impairment of 13 percent. As the prior cumulative
awards for the left upper extremity (40 percent) included 13 percent impairment of shoulder, no
additional award was supported by the medical evidence. As no award had been previously
made for the elbow, Dr. Katz combined, per Appendix A, page 604, the prior schedule award of
40 percent with the 1 percent elbow impairment to yield 41 percent total left upper extremity
impairment. The prior 40 percent schedule award was subtracted from the 41 percent
impairment to find an additional 1 percent impairment.
By decision dated November 19, 2012, OWCP granted a schedule award for 1 percent
impairment of the left upper extremity, or a total impairment of 41 percent. The award ran 3.12
weeks of compensation for the period June 14 to July 5, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.5 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 For decisions issued after
May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
A claim for an increased schedule award may be based on new exposure or, absent any
new exposure to employment factors, medical evidence indicating that the progression of an
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Ausbon N. Johnson, 50 ECAB 304 (1999).

6

Supra note 4.

7

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

3

employment-related condition has resulted in a greater permanent impairment than previously
calculated.8 In determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.9 Any previous impairment to the member under
consideration is included in calculating the percentage of loss except when the prior impairment
is due to a previous work-related injury, in which case the percentage already paid is subtracted
from the total percentage of impairment.10
The sixth edition requires identifying the impairment class for the diagnosed condition,
which is then adjusted by grade modifiers based on functional history, physical examination and
clinical studies.11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted appellant’s occupational disease claim for right elbow synovitis and
tenosynovitis; displacement of cervical intervertebral disc without myelopathy; degeneration of
cervical intervertebral disc; spinal stenosis in cervical region; lesion of left ulnar nerve, disorder
and bursae and tendons in left shoulder; other affections of left shoulder; and brachial neuritis or
radiculitis. On December 13, 2007 OWCP awarded 37 percent left upper extremity impairment
and 4 percent right upper extremity impairment. On March 8, 2011 it awarded an additional
three percent impairment to left upper extremity, for a total impairment of 40 percent. Appellant
filed a claim for an increased schedule award, which OWCP awarded an additional 1 percent
impairment to left upper extremity, for a total impairment of 41 percent. The Board finds that
the medical evidence does not support permanent impairment greater than 41 percent total left
upper extremity impairment.
Appellant submitted a September 21, 2012 report from Dr. Shade, who found 14 percent
left upper extremity impairment, which was comprised of 12 left shoulder impairment and 2
percent left elbow impairment. The medical adviser reviewed Dr. Shade’s medical report and
found 13 percent left upper extremity impairment, which was comprised of 12 percent left
shoulder impairment and 1 percent left elbow impairment.
8

See James R. Hentz, 56 ECAB 573 (2005).

9

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of OWCP’s procedures provide that the impairment rating of
a given scheduled member should include any preexisting permanent impairment of the same member or function.
10

See Carol A. Smart, 57 ECAB 340 (2006); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.7(a)(2) (March 2011).
11

A.M.A., Guides 494-531.

12

See Federal (FECA) Procedure id. at Chapter 2.808.6(d) (August 2002).

4

Under Table 15-5, page 403, Dr. Shade found class 1 or 10 percent default impairment
for acromioclavicular joint arthritis s/p distal clavicle resection. He found grade modifier
functional history of 2; grade modifier physical examination of 2 and grade modifier clinical
studies was not applicable. Dr. Shade applied the net adjustment formula, (GMFH-CDX)(2-1)+
(GMPE-CDX)(2-1) + (GMCS-CDX)(n/a), and found a net adjustment of 2 for a final impairment
of 12 percent. Dr. Katz concurred with this result and the Board finds it is proper under the
A.M.A., Guides. Under Table 15-4, page 399, Dr. Shade found class 1 or one percent default
impairment for left elbow epicondylitis. While Dr. Shade found GMFH 1, GMPE n/a; and
GMCS 1, Dr. Katz properly utilized the A.M.A., Guides to find GMFH n/a; GMPE n/a; and
GMCS 1.13 Page 516 of the A.M.A., Guides states the functional grade modifier should be
applied only to the single, highest diagnosis based impairment. Appellant has both a shoulder
and elbow impairment. As the functional grade modifier was considered for the shoulder
impairment, the medical adviser properly excluded it from the left elbow impairment. Under the
net adjustment formula, (GMFH – CDX) (n/a) + (GMPE – CDX) (n/a) + (GMCS – CDX) (1-1)
equals zero net adjustment for final impairment of one percent. Under Appendix A, page 604,
12 percent combined with 1 percent equals 13 percent left upper extremity impairment. The
medical adviser noted since the prior cumulative award of 40 percent included 13 percent
impairment of the shoulder, the 12 percent shoulder impairment was less than that previously
awarded and thus no additional award could be given. However, since no award has been
previously made for the elbow, the medical adviser properly combined under Appendix A, page
604, the 1 percent elbow impairment with the prior schedule award of 40 percent, which yield 41
percent left upper extremity impairment. As the 41 percent left upper extremity impairment is
more than the previous award 40 percent, appellant is entitled to an additional award for 1
percent left upper extremity impairment. When an examining physician does not apply or
properly apply the A.M.A., Guides to determine an impairment rating, OWCP may rely on the
opinion of its medical adviser to apply the A.M.A., Guides to the findings reported by the
attending physician.14 OWCP properly found appellant was entitled to an additional one percent
impairment to the left upper extremity.
On appeal, appellant contends that she has additional impairment based on all the medical
evidence. The Board notes, however, that OWCP’s medical adviser provided the only
impairment rating that conformed to the A.M.A., Guides. The medical adviser’s opinion
constitutes the weight of the medical evidence.15 Appellant has not provided any probative
medical evidence to establish that she has more than 41 percent left upper extremity impairment.
As noted, she previously received awards for 37 percent and 3 percent left upper extremity
impairments. While appellant submitted new evidence on appeal, the Board lacks jurisdiction to
review such evidence for the first time on appeal.16
13

While the medical adviser noted GMPE 1 and GMCS n/a; he indicated that he used Dr. Shade’s estimates
which were GMPE n/a and GMCS 1. Thus, it appears the medical adviser transposed the grade modifiers for
physical examination and clinical studies.
14

See J.G., Docket No. 09-1714 (issued April 7, 2010).

15

See also H.B., Docket No. 09-2240 (issued June 18, 2010); E.V., Docket No. 06-1989 (issued May 21, 2007);
Bobby L. Jackson, 40 ECAB 593, 601 (1989).
16

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

5

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 not established that she has more than 41 percent
impairment of the left upper extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2013
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Q., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 17-0283
Issued: February 21, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 17, 2016 appellant filed a timely appeal from an October 12, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
work-related hearing condition on August 30, 2016.
FACTUAL HISTORY
On August 31, 2016 appellant, then a 36-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that he sustained injury in the form of left ear ringing, white
noise, and discomfort when working as the controller-in-charge on August 30, 2016. He
indicated that he heard white noise while using a wireless headset and had ringing in his left ear.
1

5 U.S.C. § 8101 et seq.

On the same form, appellant’s immediate supervisor checked a box marked “Yes” indicating that
her knowledge of the facts of the claimed injury agreed with the statements of appellant.2
Appellant stopped work on August 30, 2016.3
In a September 7, 2016 letter, OWCP advised appellant that the documentation it
received to date was insufficient to support his claim for a work-related injury on
August 30, 2016. It requested that he submit a report from an attending physician containing,
inter alia, a detailed description of findings, diagnosis, and an opinion supported by a medical
explanation as to how the reported work incident caused or aggravated a medical condition.
Appellant submitted a form entitled “Authorization for Examination [and/or] Treatment”
(Form CA-16), completed on September 2, 2016. In this form report, Dr. Jin S. Lim, an
attending Board-certified otolaryngologist, indicated that appellant reported that on August 30,
2016, due to wearing a left ear headset, he “began to have white noise, abnormal beeping after
sounds, and headaches.” He noted “normal physical exam[ination]” in the portion of the report
for findings. Dr. Lim also noted that an audiogram was pending. In the diagnosis section of the
form report, he noted “hyperacusis” and “abn[ormal] auditory perceptions,” along with their
corresponding ICD-10 codes (International Classification of Diseases, 10th revision), H93.232
and H93.292, respectively.4 Dr. Lim also included the ICD-10 diagnostic code for tinnitus,
H93.12. He checked a box marked “Yes” indicating that the condition found was caused or
aggravated by the employment activity described and noted, “Only because it started
immediately after use of headset.” Additionally, Dr. Lim reported that appellant was totally
disabled from September 2, 2016 until “pending.”
By decision dated October 12, 2016, OWCP denied appellant’s claim for a work-related
hearing condition arising on August 30, 2016. It found that he had established the existence of
work factors on August 30, 2016, but that he did not submit medical evidence establishing causal
relationship between the accepted work factors and a diagnosed medical condition. OWCP
further noted that the Form CA-16 “contained an illegible diagnosis and illegible physician’s
signature.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.5 These are the essential elements of each
2

Under a separate OWCP file number (xxxxxx364) for a claim not currently before the Board, OWCP accepted
that on July 1, 2013 appellant sustained a traumatic right ear injury in the form of acoustic trauma (ICD-9 code
388.11, International Classification of Diseases, 9th revision).
3

Appellant requested continuation of pay on the Form CA-1 completed on August 31, 2016. However, it is
unclear from the record whether he received continuation of pay.
4

Hyperacusis is defined as exceptionally acute hearing, with an unusually low hearing threshold, which may or
may not be accompanied by pain. See Dorland’s Illustrated Medical Dictionary, 878 (30th ed. 2003).
5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.7 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.9
ANALYSIS
Appellant filed a Form CA-1 alleging that on August 30, 2016 he sustained injury in the
form of ringing, white noise, and discomfort while using a wireless headset at work. OWCP
denied his claim because he failed to submit medical evidence sufficient to establish such a
work-related hearing injury.
The Board finds that appellant has not met his burden of proof to establish that he
sustained a work-related hearing condition on August 30, 2016.
In denying appellant’s claim, OWCP accepted that he experienced work factors in the
form of being exposed to noise from a headset while conducting air traffic controller duties on
August 30, 2016. The Board also finds that appellant was exposed to such work factors on
August 30, 2016. In finding that appellant had not submitted medical evidence establishing a
causal relationship between work factors and a diagnosed condition, OWCP indicated that he
submitted a Form CA-16, which had been completed on September 2, 2016, but that the form
report contained an illegible diagnosis and illegible physician’s signature. The Board finds that
the Form CA-16 is identifiable as having been completed by Dr. Lim, an attending physician,
and that Dr. Lim provided the specific diagnoses of hyperacusis, other abnormal auditory
perceptions, and tinnitus.

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury
caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period
longer than a single workday or work shift. 20 C.F.R. § 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
7

Julie B. Hawkins, 38 ECAB 393 (1987).

8

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

9

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

The September 2, 2016 form report of Dr. Lim is the only medical evidence submitted by
appellant and the Board finds that this report does not establish that appellant sustained a workrelated hearing condition on August 30, 2016. In this form report, Dr. Lim indicated that
appellant reported that on August 30, 2016, due to wearing a left ear headset, he “began to have
white noise, abnormal beeping after sounds, and headaches.” Dr. Lim noted “normal physical
exam[ination]” and checked a box marked “Yes” indicating that the diagnosed conditions of
hyperacusis, other abnormal auditory perceptions, and tinnitus were caused or aggravated by the
employment activity described.
The Board finds that Dr. Lim’s report is of limited probative value on the relevant issue
of this case because he did not provide a rationalized medical report relating the observed
conditions to the accepted work factors that appellant experienced on August 30, 2016.10 The
Board has held that when a physician’s opinion on causal relationship consists only of checking a
box marked “Yes” to a form question, without the addition of adequate medical rationale, that
opinion has little probative value and is insufficient to establish causal relationship.11 Appellant’s
burden includes the necessity of furnishing an affirmative opinion from a physician who supports
his or her conclusion with sound medical reasoning.12
Dr. Lim indicated that he checked the box marked “Yes” denoting work-related causation
only because appellant’s reported symptoms “started immediately after use of headset.”
However, the Board has held that the fact that a condition manifests itself or worsens during a
period of employment13 or that work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between a claimed condition and
employment factors. Temporal relationship alone will not suffice.15 Dr. Lim did not describe the
accepted work factors in any detail or explain the medical process through which appellant’s use of
a left ear headset could have caused the diagnosed conditions. As Dr. Lim did little more than
check a box marked “Yes” to a form question, his opinion on causal relationship is of little
probative value and is insufficient to discharge appellant’s burden of proof for a work-related
hearing condition.16

10

See supra note 9.

11

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

12

Lillian M. Jones, 34 ECAB 379, 381 (1982).

13

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

14

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

15

See D.I., 59 ECAB 158, 162 (2007).

16

The Board notes that where an employing establishment properly executes a Form CA-16 which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
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 OWCP
terminates the authorization sooner. See 20 C.F.R. § 10.300(c). The record is silent as to whether OWCP paid for
the cost of appellant’s examination or treatment for the period noted on the form.

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a work-related hearing condition on August 30, 2016.
ORDER
IT IS HEREBY ORDERED THAT the October 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.N., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Oakland, CA, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1543
Issued: March 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 9, 2018 appellant, through counsel, filed a timely appeal from a June 29, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from the last merit decision dated March 30, 2011, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the June 29, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 14, 2005 appellant, then a 49-year-old contact representative, filed an
occupational disease claim (Form CA-2) alleging that she sustained cervical radiculopathy due to
factors of her federal employment, which required that she perform work on the computer and
telephone while sitting in one position for eight hours per day. She further explained that she
performed her work while sitting in an uncomfortable chair that placed pressure on her back and
neck. OWCP initially accepted the claim for cervical radiculopathy and paid appellant wage-loss
compensation on the supplemental rolls commencing January 17, 2005, and on the periodic rolls
commencing October 29, 2006.
By letter dated January 28, 2010, the employing establishment offered appellant a position
as a part-time customer service representative for four hours per day. Appellant accepted the job
offer on February 10, 2010.
In a progress report dated March 29, 2010, Dr. Douglas J. Abeles, Board-certified in
orthopedic surgery, noted that appellant could return to modified desk work only, for four hours
per day. On March 31, 2010 appellant returned to work for four hours per day. She was paid
wage-loss compensation for the remaining four hours per day commencing that day.
In multiple claims for compensation (Form CA-7) dated from April 20 to June 4, 2010,
appellant claimed that she was entitled to eight hours of wage-loss compensation on intermittent
dates.
By development letter dated June 9, 2010, OWCP advised appellant of the deficiencies in
the medical evidence submitted in support of her claim for wage-loss compensation and afforded
her 30 days to provide additional medical evidence.
In response to the development letter, OWCP continued to receive medical reports from
Dr. Abeles. In a report dated August 2, 2010, Dr. Abeles noted that appellant had developed right
hand and thumb tendinitis and possible joint basilar joint arthritis which he attributed to her 2005
employment injury. In a report dated September 1, 2010, he placed appellant off work for three
weeks due to increased pain in her neck and right hand.
By decision dated September 27, 2010, OWCP denied appellant’s claims for a recurrence
of disability, commencing April 20 to June 4, 2010, and continuing because the evidence of record
was insufficient to support that she had an increase in disability which prevented her from being
able to work 20 hours per week from April 20, 2010 forward as alleged. It noted that appellant
would continue to be paid compensation for the four hours per day already being paid.
On November 18, 2010 OWCP referred appellant, along with a statement of accepted facts
(SOAF), to Dr. Ramon Jimenez, Board-certified in general surgery, for a second opinion
examination to determine her disability status. In a SOAF dated November 18, 2010, it indicated

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that acceptance of appellant’s claim had been expanded to include cervical spine stenosis and right
shoulder impingement.
In his December 20, 2010 report, Dr. Jimenez diagnosed a cervical disc protrusion,
acromial impingement syndrome bilaterally, brachial neuritis, and adhesive capsulitis of both
shoulders. He indicated that her residuals post anterior cervical fusion persisted, and that appellant
was unable to return to full-time work. Dr. Jimenez related that her condition was essentially
permanent and stationary.
By letter dated and received February 14, 2011, appellant requested reconsideration of
OWCP’s September 27, 2010 decision.
On February 28, 2011 OWCP requested that Dr. Jimenez answer supplemental questions
regarding his December 20, 2010 second opinion evaluation.
In a March 21, 2011 response, Dr. Jimenez noted that appellant’s diagnoses were medically
connected to her accepted employment injury. He indicated that the employment activities she
engaged in caused her to have neck symptoms and signs compatible with the resultant diagnosis
of cervical disc protrusion. Dr. Jimenez related that appellant’s physical examination findings of
limited range of motion in both shoulders, localized tenderness, and hypoesthesia in her left
forearm and hand are all signs that referred to her cervical spine pathology and also to the shoulder
acromial impingement syndrome and adhesive capsulitis.
By decision dated March 30, 2011, OWCP reviewed the merits of appellant’s claim, but
denied modification of the September 27, 2010 decision. It indicated that the evidence submitted
in support of appellant’s reconsideration request was insufficient to demonstrate that she was
totally disabled from work for intermittent dates from April 20 to June 4, 2010 and continuously
from August 30, 2010. OWCP noted that both Drs. Abeles and Jimenez discussed subjective
findings as represented in the change of appellant’s medical condition, but there was no change in
objective findings that was put forward as part of a medical explanation of her reason for being
totally disabled from work. It related that appellant’s entitlement to wage-loss compensation for
partial disability would continue uninterrupted.
In a report dated July 6, 2011, Dr. Abeles diagnosed degenerative disc disease of the
cervical spine status post cervical fusion. He ordered appellant to remain off of work.
In a subsequent report dated October 3, 2011, Dr. Abeles noted limited range of motion,
C5-6 radiculopathy bilaterally, and ordered a magnetic resonance imaging (MRI) scan. He
instructed appellant to remain off work.
On December 5, 2011 OWCP referred appellant for a second opinion evaluation with
Dr. Aubrey A. Swartz, a Board-certified in orthopedic surgeon. In a SOAF dated November 30,
2011, it related that acceptance of appellant’s claim had been further expanded to include brachial
neuritis, cervical disc protrusion, bilateral acromial impingement, and bilateral shoulder
impingement. Dr. Swartz was asked to assess appellant’s work-related condition including her
current physical condition and her ability to return to work.
In a December 13, 2011 MRI scan report Dr. Abeles diagnosed a tear of the supraspinatus
tendon, acromium with impingement, and arthropathy of the acromioclavicular joint.
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In a report dated December 19, 2011, Dr. Abeles noted the progression of the right shoulder
tear and the need for surgery. He also indicated that appellant had significant degenerative changes
to her cervical spine.
In a second opinion evaluation report dated January 9, 2012, Dr. Swartz diagnosed
aggravation of degenerative disc disease and aggravation of degenerative labral tears in both
shoulders. He related that appellant’s diagnoses were not related by direct cause, but would be by
aggravation and probable permanent aggravation as a result of a preexisting degenerative disease
and preexisting disc disease in the cervical spine. Dr. Swartz noted that both additional diagnoses
were related to appellant’s employment-related conditions, and indicated that she was capable of
performing at least sedentary work.
In a report dated November 15, 2012, Dr. Abeles modified appellant’s work restrictions.
In a subsequent report dated January 23, 2013, he requested authorization for surgery to repair the
torn rotator cuff in appellant’s right shoulder. Appellant was ordered to remain off work.
Dr. Abeles again requested authorization for surgery for the right shoulder on January 22, April 7,
May 7, August 27, and October 29, 2014.
In response to a memorandum to a district medical consultant, Dr. Ellen Pichey, Boardcertified in family practice and occupational medicine, opined on October 28, 2014 that it appeared
reasonable to authorize appellant’s right shoulder surgery.
Dr. Abeles continued to request authorization for appellant’s right shoulder surgery in
reports dated May 11, August 26, and September 21, 2015, and February 22, July 26, August 23,
and September 27, 2016. He performed the procedure on December 7, 2016. Appellant remained
off work.
On April 12, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Mohinder Nijjar, Board-certified in orthopedic surgery. Dr. Nijjar was asked to provide an
opinion as to the nature of appellant’s condition, the extent of her disability, and appropriate
treatment recommendations.
In a second opinion evaluation report dated May 16, 2017, Dr. Nijjar noted that appellant
needed further treatment, including manipulation under anesthesia. Upon reviewing past
diagnostic examinations, he diagnosed cervical radiculopathy, cervical spinal stenosis, brachial
neuritis, cervical disc protrusion, bilateral acromial impingement, bilateral shoulder impingement,
a right rotator cuff tear, and subacromial decompression and debridement of the shoulder joint.
Dr. Nijjar also indicated that appellant had adhesive capsulitis in her right shoulder and radiating
pain following her cervical surgery. He related that there had been no aggravation of a preexisting
condition to produce her diagnoses. Dr. Nijjar noted that his objective findings included surgical
scars, limited range of motion in the cervical spine, negative neurologic examination, and local
tenderness in the right shoulder. He related that appellant was unable to return to regular work,
but that she could return to work for four hours per day, with restrictions.
In a July 11, 2017 report, Dr. Abeles noted that appellant presented with a right shoulder
still very limited in range of motion. He noted that his recommendation for manipulation of the
shoulder under anesthesia had been denied. Dr. Abeles noted that there was no change in her total
disability work status and that she was retired.

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On October 27, 2017 appellant, through counsel, requested reconsideration of the
March 30, 2011 decision.
By decision dated June 29, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
appellant’s submission of a reconsideration request provided arguments substantially similar to
arguments previously considered. With respect to the additional medical evidence submitted,
OWCP concluded that the medical reports and the subsequently authorized surgery were not
relevant to the issue of total disability in 2010 when appellant had made her claim for total
disability.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.4 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s integrated Federal Employees’ Compensation System.5 The Board
has found that the imposition of the one-year time limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.7
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,8 is positive, precise, and explicit, and is manifest on its face
that OWCP committed an error.9 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision for which review is sought. Evidence that does not raise a substantial
question is insufficient to demonstrate clear evidence of error. It is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion. A determination of
whether the claimant has demonstrated clear evidence of error entails a limited review of how the
evidence submitted with the reconsideration request bears on the evidence previously of record.10

4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 5 at Chapter
2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a difficult standard).
8

See A.F., Docket No. 18-0645 (issued October 26, 2018); Dean D. Beets, 43 ECAB 1153 (1992).

9

See A.F., id.; Leona N. Travis, 43 ECAB 227 (1991).

10

J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010).

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ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations11 and procedures12 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.13
The most recent merit decision was OWCP’s March 30, 2011 decision which found that the
evidence of record was insufficient to establish that appellant was totally disabled for the period
alleged. As her request for reconsideration was not received by OWCP until October 27, 2017,
more than one year after the March 30, 2011 decision, it was untimely filed.14 Because appellant’s
request was untimely, she must demonstrate clear evidence of error on the part of OWCP in having
denied total disability compensation for the period alleged.
OWCP denied the claimed period of total disability finding that the medical evidence then
of record did not support that there had been a material worsening of appellant’s medical condition
that precluded her from performing specific job activities required by the January 28, 2010 job
offer which she had accepted and for which she successfully worked four hours per day until
April 20, 2010. It noted that the medical reports of Drs. Abeles and Jimenez discussed subjective
findings, but did not identify an objective basis upon which total disability from work could be
supported. OWCP determined that there was no other medical evidence of record relevant to the
issue of total disability for the period claimed. Therefore, it determined that, while the evidence
supported that appellant remained precluded from performing her date-of-injury job, or working
in a full-time modified position, it did not support a finding of total disability.
In her request for reconsideration, counsel asserted that, following the March 30, 2011
decision, appellant had suffered a material change in the nature and extent of her accepted
conditions, that she could no longer perform the 2010 job offer, and that she had not been provided
with a formal loss of wage-earning capacity determination. She did not, however, argue that the
medical evidence of record at the time of the last merit decision was sufficient to establish a claim
for total disability. The Board thus finds that these arguments fail to demonstrate clear evidence
of error on the part of OWCP in its March 30, 2011 decision as they are not relevant to the issue
of whether appellant had met her burden of proof to establish, through the submission of medical
evidence, total disability for claimed period.15
Appellant has also submitted new medical reports noting a progression of her disability.
She submitted a series of medical reports from her attending physician, Dr. Abeles. In his reports,
11

J.W., Docket No. 18-0703 (issued November 14, 2018); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
12

Supra note 5 at Chapter 2.1602.4 (February 2016); see Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

J.W., supra note 11; Robert F. Stone, 57 ECAB 292 (2005).

14

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

15

See S.M., Docket No. 16-0270 (issued April 26, 2016); E.M., Docket No. 14-0667 (issued May 7, 2014);
Howard Y. Miyashiro, 51 ECAB 253 (1999).

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Dr. Abeles diagnosed additional conditions including degenerative disc disease of the cervical
spine status post cervical fusion, a tear of the supraspinatus tendon, acromium with impingement,
and arthropathy of the acromioclavicular joint; recommended right shoulder surgery; performed
the right shoulder surgery on December 7, 2016; and restricted appellant from work. Likewise, in
second opinion reports, Drs. Swartz and Nijjar diagnosed additional upper extremity conditions
and recommended additional medical treatment, which was found to be reasonable by a district
medical advisor.
The Board finds, however, that the new reports from Dr. Abeles and the second opinion
physicians, Drs. Swartz and Nijjar, are irrelevant to the issue of whether appellant was totally
disabled for the period claimed in the March 30, 2011 decision. None of the medical evidence
submitted subsequent to the March 30, 2011 decision provides an opinion that appellant was totally
disabled from work for the claimed period. Therefore, these reports fail to demonstrate clear
evidence of error in OWCP’s denial of appellant’s disability claim.16
The Board finds that the evidence submitted in the untimely request for reconsideration
does not raise a substantial question as to the correctness of OWCP’s last merit decision and is
therefore insufficient to demonstrate clear evidence of error. The underlying issue in appellant’s
claim is medical in nature with respect to the claimed period of total disability prior to the
March 30, 2011 decision. The Board notes that the term clear evidence of error is intended to
represent a difficult standard.17 Even a detailed, well-rationalized medical report, which would
have created a conflict in medical opinion requiring further development if submitted prior to
issuance of the denial decision, is insufficient to demonstrate clear evidence of error.18 It is not
enough to show that evidence could be construed so as to produce a contrary conclusion. Instead,
the evidence must shift the weight in appellant’s favor.19
Accordingly, the Board finds that OWCP properly denied appellant’s reconsideration
request, as it was untimely filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

16

See M.N., Docket No. 15-0758 (issued July 6, 2015).

17
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 8.
18

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

19

See supra note 16.

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ORDER
IT IS HEREBY ORDERED THAT the June 29, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 6, 2019
Washington, DC

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

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

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

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