United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Denali Park, AK,
Employer
__________________________________________

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

Docket No. 16-0608
Issued: June 24, 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 February 10, 2016 appellant, through counsel, filed a timely appeal from a
December 11, 2015 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 has more than five percent permanent impairment of the
right upper extremity.
FACTUAL HISTORY
On June 6, 2011 appellant, then a 72-year-old seasonal park ranger, filed a traumatic
injury claim (Form CA-1) alleging that on May 11, 2011 she fractured her right wrist when she
1

5 U.S.C. § 8101 et seq.

slipped on ice while leading a hike. OWCP accepted the claim for a closed fracture of the lower
end of the radius with ulna and a closed fracture of the lower end of the right humerus.
On May 17, 2011 appellant underwent an open reduction internal fixation of the hand
innovation volar plate. An August 10, 2011 magnetic resonance imaging (MRI) scan of the right
wrist showed a radial fracture, widening of the scapholunate interval, and “focal thinning or a
full-thickness defect of the central triangular cartilage medial to the distal radioulnar joint.”
OWCP referred appellant for second opinion examinations in 2012 and 2013 to
determine the nature and extent of her condition and disability. In a report dated May 17, 2012,
Dr. Thomas L. Gritzka, a Board-certified orthopedic surgeon and OWCP referral physician,
measured range of motion of the right wrist as 60 degrees dorsiflexion, 60 degrees flexion, and
20 degrees ulnar and radial deviation. He noted that appellant’s hand seemed “radially deviated
about 10 degrees compared to the left.” Dr. Gritzka diagnosed a status post open reduction,
internal fixation of a fracture of the right distal radius, and chronic derangement of the right
distal radial ulnar joint.
On June 5, 2013 Dr. Douglas Bald, a Board-certified orthopedic surgeon and OWCP
referral physician, measured range of motion of the right wrist of 50 degrees flexion, 60 degrees
extension, 20 degrees radial deviation, 32 degrees ulnar deviation, 64 degrees pronation, and 56
degrees supination. He found instability of the distal radioulnar joint. Dr. Bald diagnosed
chronic derangement with a triangular fibrocartilage complex tear of the wrist due to the May 11,
2011 work injury.
Appellant returned to work on April 23, 2014 as an interpretive ranger.
On April 30, 2014 appellant filed a claim for a schedule award (Form CA-7). By letter
dated June 10, 2014, OWCP requested that she submit an impairment evaluation from her
attending physician providing the extent of any impairment in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).
In an impairment evaluation dated July 16, 2014, Dr. Michael E. Hebrard, a Boardcertified physiatrist, discussed appellant’s history of multiple wrist fractures when she slipped
and fell on ice.2 He noted that x-rays obtained on May 11, 2011 showed a displaced fracture of
the distal radius and a nondisplaced fracture of the ulna. On examination Dr. Hebrard found
swelling of the right wrist at the dorsal and volar aspect, 20 degrees radial deviation of the right
wrist, substantial motion of the carpal bones especially at the right ulnar styloid region, laxity of
the triangular fibrocartilage complex, and moderate-to-severe thenar and hypothenar atrophy.3
He measured wrist flexion of 30 degrees and extension of 40 degrees, with 3/5 motor strength on
the right. Dr. Hebrard noted that diagnostic testing on August 10, 2011 revealed “considerable
fragmentation of the triangular fibrocartilage complex on the ulnar side of the wrist as well as a
2

Electrodiagnostic testing performed on July 16, 2014 yielded normal findings.

3

Dr. Hebrard indicated that the atrophy was on the left rather than the right side. However, this appears to be a
typographical error.

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significant increase in the scapholunate gap consistent with ligamentous injury.” He diagnosed a
closed fracture of the right radius with ulna, a closed fracture of the lower end of the right
humerus, and instability of the right carpal bone. Dr. Hebrard, citing Table 15-3 on page 396 of
the A.M.A., Guides, identified the diagnosis as class 2 wrist dislocation with carpal instability.
He applied a grade 3 modifier for severe instability as seen by x-ray to find a grade D, or 25
percent impairment of the right upper extremity.
On September 4, 2014 an OWCP medical adviser noted that Dr. Hebrard did not provide
ratings for each grade modifier. He further indicated that the physician found severe instability;
but noted that there were no x-rays showing measurements of the scapholunate gap as required
by Table 15-9 on page 410 of the A.M.A., Guides to determine instability. The medical adviser
also noted that Dr. Hebrard’s range of motion findings deviated from those of other examiners.
He recommended a second opinion examination.
In an impairment evaluation dated March 12, 2015, Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon and OWCP referral physician, discussed appellant’s complaints of
pain with wrist activity. He measured range of motion of the right wrist as negative 15 to 60
degrees dorsiflexion, 55 degrees palmar flexion, 35 degrees radial deviation, and 15 degrees
ulnar deviation. Dr. Swartz found symmetrical circumference of the upper extremities. He
related that appellant had “a radial deviation of the right wrist of 15 degrees. I found this to be a
malunion of the distal radius.” Dr. Swartz diagnosed a closure fracture of the distal end of the
radius. He provided a rating based on a class 1 diagnosis with a default value of three percent.
Dr. Swartz applied a grade modifier of 2 for functional history due to difficulties performing
activities. He additionally applied a grade modifier of 3 for physical examination as “the range
of motion reveals an arc of motion of 45 degrees, which would represent a severe limitation of
motion….” Utilizing the net adjustment formula, Dr. Swartz moved the default value two places
over which yielded five percent permanent impairment of the right upper extremity. He found
no evidence of severe instability of the right wrist.
On March 30, 2015 an OWCP medical adviser reviewed Dr. Swartz’ findings and noted
that Table 15-3 on page 396 of the A.M.A., Guides provided a rating for a wrist fracture with
normal motion and either consistent objective findings or functional loss. He found, however,
that appellant’s only motion loss was reduced ulnar deviation which would equal two percent
impairment. The medical adviser utilized the diagnosis of a class 1 wrist fracture using Table
15-3, which yielded a default value of three percent. He applied a grade modifier of 1 for
functional history, 2 for physical examination, and 2 for clinical studies, which moved the grade
two places to the right to find five percent right upper extremity permanent impairment.
By decision dated April 7, 2015, OWCP granted appellant a schedule award for five
percent permanent impairment of the right upper extremity. The period of the award ran for 15.6
weeks from February 19 to June 8, 2015.
On April 21, 2015 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. At the hearing, held on November 4, 2015, she described her
continued difficulty and pain using her right arm to perform tasks.

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By decision dated December 11, 2015, the OWCP hearing representative affirmed the
April 7, 2015 decision.
On appeal appellant’s counsel contends that the Board has evidence that Dr. Swartz is
biased.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment Class of Diagnosis condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted that appellant sustained a closed fracture of the lower end of the radius
with ulna and a closed fracture of the lower end of the right humerus due to a May 11, 2011
employment injury. Appellant underwent an open reduction internal fixation of the wrist
fracture on May 17, 2011. Dr. Bald, an OWCP referral physician, also diagnosed a triangular
fibrocartilage complex tear of the wrist due to her May 11, 2011 work injury.
On April 30, 2014 appellant filed a claim for a schedule award. In an impairment
evaluation dated July 16, 2014, Dr. Hebrard measured 20 degrees radial deviation, 30 degrees
flexion, and 40 degrees extension of the right wrist. He further found reduced strength and laxity
of the triangular fibrocartilage complex. Dr. Hebrard diagnosed a closed fracture of the right
radius and lower end of the humerus and instability of the right carpal bone. Referencing Table
15-3 on page 396 of the A.M.A., Guides, he identified the diagnosis as a class 2 wrist dislocation
with carpal instability. Dr. Hebrard applied a grade modifier of three for severe instability by xray to find 25 percent right upper extremity impairment.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

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

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An OWCP medical adviser reviewed Dr. Hebrard’s report and noted that he did not
provide the x-ray measurements showing instability as required by Table 15-9 on page 410 of the
A.M.A., Guides. He further indicated that his range of motion measurements differed from those
of prior physicians and recommended a second opinion examination.
Dr. Swartz, an OWCP referral physician, provided a March 12, 2015 impairment
evaluation. He measured range of motion for the right wrist as negative 15 to 60 degrees
dorsiflexion, 55 degrees palmar flexion, 35 degrees radial deviation, and 15 degrees ulnar
deviation. Dr. Swartz found that appellant had a 15-degree radial deviation of the right wrist as
the result of a “malunion of the distal radius.” He opined that she had severe loss of motion as
the arc of motion for her right wrist was 45 degrees. Without specifically identifying the
diagnosis, Dr. Swartz found a class 1 impairment that had a default value of three percent. He
applied grade modifiers and concluded that appellant had five percent permanent impairment of
the right upper extremity.
On March 30, 2015 an OWCP medical adviser identified the diagnosis as a wrist fracture
using Table 15-3 on page 396 of the A.M.A., Guides, which yielded a default value of three
percent. He applied grade modifiers and found that appellant had five percent right upper
extremity impairment. Table 15-3, however, indicates that the diagnosis of wrist fracture is only
used if a claimant has normal motion. Dr. Swartz found that appellant had severely limited range
of motion of the right wrist. While the OWCP medical adviser indicated that her range of
motion loss was minimal and limited to a reduction in ulnar deviation, he did not explain his
conclusion in view of her 15 degrees radial deviation due to a malunion of the distal radius or
Dr. Swartz’ finding that a 45-degree arc of motion for the right wrist did not constitute a severe
motion loss.
The Board, consequently, finds that there is insufficient evidence to determine the extent
of appellant’s right upper extremity impairment. The case will be remanded for further
development of the medical evidence and an opinion on the extent of her ratable impairment
consistent with the A.M.A., Guides. Following any necessary further development, OWCP shall
issue a de novo decision regarding appellant’s schedule award claim.
Additionally, the Board notes that Dr. Bald, an OWCP referral physician, diagnosed
chronic derangement with a triangular fibrocartilage complex tear of the wrist causally related to
the May 11, 2011 work injury. OWCP has not advised whether it has expanded acceptance to
include this diagnosed condition, which is an identified diagnosis under Table 15-3 on page 396
of the A.M.A., Guides. On remand, it should determine if the claim should be expanded to
include a triangular fibrocartilage complex right wrist tear.
CONCLUSION
The Board finds that the case is not in posture for decision.

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ORDER
IT IS HEREBY ORDERED THAT the December 11, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 24, 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
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, Wl, Employer
__________________________________________

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Appearances:
David A. Teegarden, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1878
Issued: March 7, 2018

Case Submitted on the Record

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

JURISDICTION
On September 5, 2017 appellant, through her representative, filed a timely appeal from an
April 7, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury causally related to the accepted
factors of her federal employment.
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.

FACTUAL HISTORY
On October 10, 2015 appellant, then a 55-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained left forearm pain from her elbow to hand,
with tingling of fingers and palm, right arm weakness, and tightness in both thighs as a result of
her federal employment duties. In an attached narrative statement, she alleged that on August 11
or 12, 2015 she noticed a “jelly like” feeling in both thighs and felt that her thighs were so heavy
that she could not pick up her feet. Appellant noted that on or around September 14, 2015 she
began having left arm pain, from her elbow to hand, extending to her fingers. She described the
duties of her federal employment, which included retrieving mail and standing while placing
mail in case. Appellant noted that, as she was 4’10”, she was given a stool to reach upper
shelves, but she still had to reach over her shoulder and head. She explained that she would load
trays and tubs of mail into a vehicle, and she would then deliver the mail, which involved
carrying up to 35 pounds. Appellant noted that twisting, turning, and bending were required in
the performance of her duties. She stopped work on September 14, 2015.
The employing establishment controverted appellant’s claim, noting that she had not
established fact of injury or causal relationship.
By development letter dated December 14, 2015, OWCP informed appellant that further
medical evidence was necessary to establish her claim. Appellant was afforded 30 days to
submit the necessary evidence.
Appellant was treated by Dr. Shekhar A. Dagam, a Board-certified neurosurgeon. On
December 15, 2015 Dr. Dagam performed a T8-11 laminectomy for resection of thoracic
intraspinal extradural calcification and decompression of spinal cord.
In a December 16, 2015 report of a computerized tomography of the thoracic spine,
Dr. Matthew R. Brewer, a Board-certified radiologist, found:
(1) interval posterior
decompression from T8-10 with no residual central canal stenosis at these levels; (2) persistent
multilevel foraminal stenosis secondary to hypertrophic facet arthropathy; (3) stable calcified
disc protrusions at T8-9 and T9-10; and (4) nonobstructing left renal stone and stable left adrenal
adenoma.
A magnetic resonance imaging scan of appellant’s thoracic spine taken on December 17,
2015 was interpreted as showing: (1) postsurgical change from TI-10 laminectomy; (2) interval
development of ill-defined 12 millimeter (mm) longitudinal intramedullary hyperintense T2 cord
signal without enhancement concerning for edema; (3) stable focal 4 mm intramedullary
hyperintense T2 nonenhancing intramedullary cord signal C5-6 level; (4) and multilevel mild
disc degenerative changes and scattered facet arthropathy, stable foraminal stenosis T7-8, T9-10,
and T10-11 levels.
In a January 12, 2016 report, Dr. Dagman noted that he had treated appellant on multiple
occasions since September 30, 2015. He noted her complaints and discussed results of
diagnostic testing. Dr. Dagman diagnosed lumbar spinal stenosis, lumbar degenerative disc
disease, thoracic degenerative disc disease, thoracic myelopathy, thoracic spinal stenosis,
thoracic spondylosis, thoracic myelomalacia, and weakness of the lower extremities. He

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described appellant’s 25-year work experience at the employing establishment. Dr. Dagman
opined that the combination of the repetitive movements of lifting, bending, and twisting
provided stress on the spine which overtime led to degenerative disc disease, and that the
progression of degenerative disc disease ultimately may lead to canal stenosis and foraminal
narrowing, which he believed that were contributors to her symptoms. He noted that appellant
had radiographic evidence of calcified disc protrusions which were likely a result of repetitive
movements and overuse related to a high work demand. Dr. Dagam opined that her fall on ice
may have been exacerbated her symptoms, but the underlying spinal changes were the result of
repetitive, strenuous activities related to her position as a mail carrier for over 25 years.
By memorandum dated February 11, 2016, OWCP referred appellant’s case to an OWCP
medical adviser. In a March 9, 2016 response, OWCP’s medical adviser noted that there was no
diagnostic evidence of lumbar disease and no description of employment factors causative of
lumbar injury or disease. Accordingly, he recommended that appellant’s lumbar conditions not
be accepted.
By letter to Dr. Dagam dated April 19, 2016, OWCP requested that he provide diagnostic
evidence and reasoned medical opinion describing how employment factors aggravated the
diagnosed conditions in his January 12, 2016 report. In a response dated May 2, 2016,
Dr. Dagam described appellant’s employment duties and opined that her work environment
caused progressive degenerative disease in her thoracic spine with disc herniation at T9-10 as
well as T10-11 which caused compression of the spinal cord and myelopathic symptoms. He
believed that the repetitive heavy lifting, bending, twisting, carrying, and multiple falls were the
cause of her degenerative disc disease and ultimate disc herniation with compression of the
spinal cord. Dr. Dagam related that, while appellant would have some improvement of her right
lower extremity paresthesia and weakness, she would have a permanent deficit.
By memorandum dated May 20, 2016, OWCP asked its medical adviser to discuss the
relationship of appellant’s diagnosed conditions to her employment duties. In a May 23, 2016
response, the medical adviser opined that, based on a review of the file, the weight of the medical
evidence did not support a causal relationship between her diagnosed condition and her work
activities. He noted that appellant’s thoracic canal stenosis and associated calcification in all
likelihood represented degenerative changes due to her age without any causal relationship to her
work activities. In a supplemental report dated June 8, 2016, the medical adviser reviewed
additional records and determined that, from review of the entire case file, it appeared that her
problems with the thoracic spine resulted from degenerative joint/degenerative disc disease of
the thoracic spine with extradural calcification resulting in spinal cord compression. He related
that the weight of the medical evidence did not support causal relationship between this
condition and appellant’s work activities or her falls which occurred at work. The medical
adviser noted that, although the claimant did have documented falls at work, it appeared that
these were secondary to weakness in the lower extremities and there was no documentation that
any of these falls resulted in injury to her thoracic spine. In addition, he noted that, although
Dr. Dagam was of the opinion that appellant developed disc herniation as a result of work
activities, the operative report did not demonstrate any obvious thoracic disc herniation. The
medical adviser further found that the evidence did not support that her work activities resulted
in the development of thoracic spinal stenosis and extradural calcification which was the cause of
her problem.

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By letter dated July 8, 2016, OWCP referred appellant to Dr. Mysore S. Shivaram, a
Board-certified orthopedic surgeon, for a second opinion. In a July 27, 2016 report,
Dr. Shivaram diagnosed her with: (1) degenerative disc disease of the thoracic spine; (2) spinal
stenosis at T9, T10, and T11 secondary to degenerative disc disease of the thoracic spine; and
(3) cord compression at T9, T10, and T11 level. He opined that the conditions of degenerative
changes of the thoracic spine and disc herniations at T9-10 and T10-11 were not related to
claimant’s employment. Dr. Shivaram opined that appellant’s diagnosis had no relationship to
her work activities and her falls at work were secondary to weakness in both lower extremities
from cord compression. He also opined that the condition of degenerative disc disease and
consequent spinal stenosis were degenerative conditions and not medically related to the factors
of her federal employment. Dr. Shivaram noted that appellant had progressively worsening
degenerative conditions of the thoracic spine, which ultimately resulted in her current condition,
and was the result of degenerative arthritis of the thoracic spine, spinal stenosis, and calcified
discs at this level.
On June 8, 2016 OWCP’s medical adviser again reviewed the case file. He noted that
appellant did have problems with the thoracic spine that resulted from degenerative
joint/degenerative disc disease of the thoracic spine with extradural calcification resulting in
spinal cord compression. The medical adviser determined that the weight of the medical
evidence did not support any causal relationship between her condition and her work activities.
He noted that, although appellant did have documented falls at work, it appeared that these were
secondary.
By decision dated August 25, 2016, OWCP denied appellant’s claim as it determined that
the medical evidence of record was insufficient to demonstrate that her claimed condition was
related to the established work-related factors.
On December 19, 2016 appellant requested reconsideration. In support thereof, she
submitted a November 3, 2016 report wherein Dr. Dagam opined that her thoracic spine findings
were associated with a prolonged period of work-related exposure to strenuous and repetitive
activities. Dr. Dagam noted that repetitive twisting and turning could induce motion upon the
spine which over time, could contribute to breakdown of cartilage between joints, disc bulging
and degeneration, as well as bone spur formation, and that this in turn could lead to spondylosis
and spinal stenosis. Within a reasonable degree of medical certainty, he opined that appellant’s
employment, which she performed for well over two decades, contributed to a permanent
acceleration of a degenerative thoracic condition beyond the means of normal progression, which
ultimately led to the presentation of spinal myelopathy and symptoms of weakness in the lower
extremities that required surgical intervention.
OWCP determined that a conflict in medical opinion existed between appellant’s treating
physician, Dr. Dagam, and the second opinion medical examiner, Dr. Shivaram, as to whether
her progressive degenerative disc disease of her thoracic spine with disc herniation at T9-10 as
well as T10-11, with myelopathic symptoms, was causally related to her employment as a letter
carrier. Accordingly, by letter dated February 22, 2017, it referred her to Dr. Jonathan Citow, a
Board-certified neurosurgeon, for an impartial medical evaluation.

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In an April 6, 2017 report, Dr. Citow noted that appellant appeared to have an
inflammatory condition unrelated to actual pressure on her cervical or thoracic spine, as well as
chronic spondylosis and some element of stenosis in the cervical, thoracic, and lumbar spine. He
believed that her symptoms were not at all related to her work environment. Dr. Citow opined
that appellant had normal, age-appropriate spondylitic changes, and these were likely causing the
symptoms she was having. He noted that her acute deterioration and imaging studies with the
signal changes at levels that were not significantly stenotic, suggested an inflammatory
myelopathy such as transverse myelitis, and this was not related to her work duties which
required lifting and retrieving mail.
By decision dated April 7, 2017, OWCP denied modification of its prior decision, finding
that the evidence submitted was not of sufficient probative value to alter the August 25, 2016
decision. It determined that the special weight of the medical evidence rested with the opinion of
the impartial medical examiner, Dr. Citow, who provided a well-reasoned and unequivocal
medical opinion that was based on a complete, accurate, and consistent history covering both the
factual and medical aspects of this claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable
time limitation, that the injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence must include a physician’s rationalized opinion on the issue of whether
there is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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

3

Supra note 2.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999).

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supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.7 The implementing regulations state
that, if a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.8 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well-rationalized and based
upon a proper factual background, must be given special weight.9
ANALYSIS
The Board finds that appellant has not established that her diagnosed medical conditions
were causally related to her accepted factors of her federal employment.
Dr. Dagam, appellant’s treating physician, determined that appellant’s duties of
employment, which she performed for well over two decades, contributed to a permanent
acceleration of her degenerative thoracic condition, and that this ultimately led to the
presentation of spinal myelopathy and symptoms of weakness in the lower extremities that
required surgical intervention. He supported his opinion with multiple medical reports that,
discussed her diagnostic studies, her physical findings, and her employment duties. OWCP
referred appellant for a second opinion with Dr. Shivaram who opined that the degenerative
changes of the thoracic spine and disc herniations at T9-10 and T10-11 were not related to her
employment. Dr. Shivaram opined that her diagnosis had no bearing on her work activities and
the incidents of falls at work were secondary to weakness in both lower extremities from cord
compression. He also found that the degenerative disc disease and consequent spinal stenosis
was a degenerative condition and not medically connected to the factors of appellant’s federal
employment. The Board finds that the reports of Drs. Dagam and Shivaram are in equipoise as
to whether her diagnosed conditions were causally related to the duties of her federal
employment.10 Accordingly, OWCP properly referred the case to Dr. Citow for an impartial
medical examination.11
6

Id.

7

R.C., Docket No. 12-0437 (issued October 23, 2012).

8

20 C.F.R. § 10.321.

9

F.C., Docket No. 14-0560 (issued November 12, 2015).

10

See L.B., Docket No. 17-0597 (issued September 1, 2017).

11

Id.

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In an April 6, 2017 report, Dr. Citow reviewed appellant’s medical history and conducted
a physical examination. He explained that she appeared to have an inflammatory condition
unrelated to the actual pressure on her spine, as well a chronic spondylosis and some element of
stenosis in the cervical, thoracic, and lumbar spine. Dr. Citow opined that these symptoms were
not related to appellant’s work environment, noting that she had normal, age-appropriate
spondylitic changes. He also noted that the acute deterioration and imaging studies were not
significantly stenotic and suggested an inflammatory myelopathy such as transverse myelitis
which was not related to lifting and retrieving mail at the employing establishment.
The Board finds that the special weight of the medical evidence rests with the wellreasoned report of Dr. Citow. As noted above, the opinion of an impartial specialist, if
sufficiently well rationalized and based on a proper factual and medical background, must be
given special weight.12 The Board finds that Dr. Citow provided a comprehensive report that
resolved the conflict, and his opinion represents the special weight of the medical evidence.13
Appellant therefore has not met her burden of proof to establish that her medical diagnoses were
related to her accepted factors of federal employment.
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 has not established an injury causally related to the
accepted factors of her federal employment.

12

C.L., Docket No. 17-0949 (issued September 19, 2017).

13

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 7, 2017 is affirmed.
Issued: March 7, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

8


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

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

Docket No. 17-1000
Issued: October 25, 2017

Case Submitted on the Record

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

JURISDICTION
On April 7, 2017 appellant, through counsel, filed a timely appeal from a November 16,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 12, 2016.
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.

FACTUAL HISTORY
Appellant, then a 43-year-old letter carrier, filed occupational disease claims
(CA-2 forms). In the first claim form, dated December 19, 2000, he described a November 6,
2000 incident when he pulled something in his back while loading his vehicle with trays of mail.
Appellant described the nature of the injury as a C4-5 disc herniation with multilevel
degenerative changes. In a second claim form, dated January 2, 2001, he alleged that the
performance of repetitive duties had contributed to C4-5 disc herniations with multilevel
degenerative changes. Both forms provided November 6, 2000 as the date appellant first became
aware of an employment-related condition. Appellant stopped work on November 7, 2000. He
returned to limited duty on January 9, 2001.
OWCP developed the claim as a traumatic injury based on the November 6, 2000
incident and accepted the claim for cervical and lumbosacral radiculopathy.3 Appellant worked
light duty and then filed a claim for a recurrence of disability (Form CA-2a) commencing
May 18, 2001.
OWCP accepted appellant’s claim for a recurrence of disability on
September 19, 2001. Appellant was placed on the periodic compensation rolls and received
wage-loss compensation every 28 days commencing June 16, 2002.
In a report dated October 11, 2001, Dr. Tariq Siddiqi, a Board-certified neurosurgeon,
noted that appellant had disc protrusions at C5-6 and cervical spondylosis at C5-7, but he did not
require surgery. He opined that appellant had reached maximum medical improvement and the
only recommendation was for a functional capacity evaluation (FCE).
The employing establishment referred appellant for a fitness-for-duty examination. In a
report dated November 26, 2001, Dr. Steven Valentino, an osteopath, diagnosed resolved history
of brachial and lumbosacral neuritis. He reported that he found no medical conditions currently
contributing to total disability.
Appellant continued to receive wage-loss compensation. An attending osteopath,
Dr. Michael Voyack, indicated in a March 5, 2006 work capacity evaluation (OWCP-5c) that
appellant remained totally disabled.
OWCP referred appellant for a second opinion examination with Dr. Surendrapal Mac, a
Board-certified orthopedic surgeon. In a report dated September 1, 2006, Dr. Mac provided a
history and results on examination. He referred to appellant loading a vehicle with mail.
Dr. Mac opined that cervical and lumbar radiculopathy had resolved. He indicated that appellant
had limitations due to cervical spondylosis, lumbar degenerative arthritis, and lumbar
degenerative disc disease.
OWCP referred appellant to Dr. Peter Spohn, a Board-certified orthopedic surgeon, for
an impartial medical evaluation.4 In a report dated March 15, 2007, Dr. Spohn provided a
3

A traumatic injury is a condition produced by events or incidents occurring within one workday or shift.
20 C.F.R. § 10.5(ee).
4

5 U.S.C. § 8123(a) provides that if there is a disagreement between an attending physician and a physician
selected by OWCP, a third physician shall be appointed to make an examination.

2

history and results on examination. He indicated that on November 6, 2000 appellant was
loading a vehicle with trays of mail. Dr. Spohn opined that appellant continued to have
employment-related medical conditions, including aggravations of cervical and lumbar
degenerative disc disease. He provided work restrictions that allowed no more than five pounds
lifting.
OWCP prepared an updated statement of accepted facts (SOAF), dated July 15, 2010,
which reported that accepted conditions now included: lumbosacral neuritis or radiculitis,
brachial neuritis or radiculitis, aggravation of cervical spondylosis, aggravation of degenerative
lumbar intervertebral disc, and displacement of cervical intervertebral disc.
OWCP referred appellant for a second opinion examination by Dr. William Lehman, a
Board-certified orthopedic surgeon. In a report dated October 23, 2010, Dr. Lehman provided a
history and results on examination. He opined that aggravations of cervical spondylosis and
lumbar degenerative disc disease had not resolved. Dr. Lehman reported that there was no
clinical evidence of brachial neuritis or displacement of cervical intervertebral disc. He noted
that an FCE had not been performed.
The record indicates that appellant underwent an FCE on December 7, 2010. By report
dated August 9, 2011, Dr. Lehman reported that bending, squatting, and reaching were not
tolerated due to back pain, which would limit appellant’s ability to perform light-duty work. He
completed an OWCP-5c work capacity evaluation form, and provided work restrictions that
included 15 pounds lifting and sitting one hour at a time.
In a report dated August 2, 2013, Dr. Voyack opined that appellant remained disabled
due to chronic neck and back pain, with radiculopathy.
OWCP again referred appellant for a second opinion examination by Dr. Seth Jaffe, an
osteopath. In a report dated November 25, 2014, Dr. Jaffe provided a history and results on
examination. He found that cervical spinal motion was 90 percent of normal in flexion,
extension, side bending, and rotation, with some cervicotrapezial spasm and tenderness.
Neurological testing was negative. As to the lumbar spine, range of motion was 80 percent of
normal, straight leg raising test and sciatic tension signs were negative. Dr. Jaffe noted that
appellant could heel walk, toe walk, and tandem walk, with some mild tenderness in the
sacroiliac joints. He diagnosed cervical spondylosis with history of C5-6 disc herniation,
multilevel lumbar disc disease with history of herniated discs L4-5 and L5-S1, and chronic pain
syndrome. Dr. Jaffe opined that appellant’s current condition was causally related to the
employment injury and that appellant could return to light-duty work. He also noted that
appellant’s inability to work full duty was not related to any medical conditions which related to
his current orthopedic disability. Dr. Jaffe completed an OWCP-5c form indicating that
appellant could work four to six hours per day, with restrictions that included a 20-pound lifting
restriction and three hours sitting.
The record contains a memorandum from an OWCP claims examiner dated May 22,
2015, reviewing the findings of Dr. Jaffe. The claims examiner wrote that it was unclear why
Dr. Jaffe limited appellant to part-time work, given the examination findings, and that an FCE
was needed. Appellant underwent an FCE on July 28, 2015.

3

On September 23, 2015 OWCP determined that a conflict in the medical evidence existed
as to whether appellant could return to work. It selected Dr. Timothy Wagner, a Board-certified
orthopedic surgeon, as an impartial medical examiner. A SOAF dated October 15, 2015 noted
the accepted conditions and indicated that appellant remained off work. It indicated that he had
claimed an injury from loading a vehicle with trays of mail. The questions posed to Dr. Wagner
included whether appellant was totally disabled solely due to residuals of accepted work
conditions and whether appellant was disabled from the date of injury.
In a report dated November 24, 2015, Dr. Wagner provided a history and results on
examination.5 He reported that in his physical examination of the cervical spine, both upper
extremities, lumbar spine, and both lower extremities, he found appellant to be neurologically
normal. Dr. Wagner wrote that any loss of range of motion of the cervical spine and lumbar
spine to be secondary to appellant’s state of physical conditioning, for which appellant was
responsible. He noted the 2001 reports from Dr. Siddiqui and Dr. Valentino. Dr. Wagner wrote
that any changes in the lumbar spine noted at a later date were part of the normal aging process
which would have progressed, and were not related to a strain injury to appellant’s cervical spine
and/or lumbar spine when lifting a tray of mail. He opined that appellant had none of the
conditions listed on the SOAF which were active and he had no objective symptoms noted on
physical examination, but a multitude of symptomatic complaints which were not corroborated
by clinical examination. Dr. Wagner opined that appellant’s only problem was that he was
physically deconditioned. He also wrote that appellant had mental problems that had not been
addressed, noting that a July 2003 report had indicated that appellant would benefit from a pain
management program with psychological, and general reconditioning, but he had declined to
enter the program.
By letter dated February 24, 2016, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits. It found that the weight of the medical
evidence was represented by Dr. Wagner and was sufficient to justify termination of
compensation. Appellant was advised to submit any additional evidence or argument within 30
days.
Counsel submitted a March 9, 2016 letter asserting his belief that Dr. Wagner had not
found that appellant had recovered from the work injury. He also asserted that Dr. Wagner had
found appellant to be deconditioned and raised a psychological component.
On March 22, 2016 appellant submitted a March 11, 2016 report from Dr. Voyack, who
provided results on examination. Dr. Voyack wrote that appellant had more pain than when he
saw appellant in 2014.
By decision dated April 12, 2016, OWCP terminated wage-loss compensation and
medical benefits. It found that the weight of the evidence was represented by Dr. Wagner.
On April 19, 2016 counsel requested a hearing before an OWCP hearing representative.
A hearing was held on September 26, 2016. Counsel argued that Dr. Wagner’s report was

5

The record also contains a November 6, 2015 review of the medical evidence of record by Dr. Wagner.

4

insufficient to terminate compensation. He also argued that asking Dr. Wagner whether
appellant was totally disabled solely due to accepted work conditions was prejudicial.
By decision dated November 16, 2016, the hearing representative affirmed the April 12,
2016 termination decision, finding that the medical evidence of record was sufficient to justify
termination of compensation benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his or her employment, OWCP may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.6
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability. To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.7
ANALYSIS
In the present case, appellant had filed CA-2 forms dated December 19, 2000 and
January 2, 2001. The December 19, 2001 Form CA-2 referred to loading trays of mail on
November 6, 2000. While the January 2, 2001 Form CA-2 referred briefly to repetitive duties,
appellant did not provide a description of the repetitive duties. OWCP developed the claim as a
traumatic injury claim based on loading trays of mail on November 6, 2000.8
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits. OWCP properly found a conflict in the medical evidence as
to appellant’s continuing disability as Dr. Jaffe had indicated that appellant could return to
light-duty work, while the attending physician, Dr. Voyack, found that appellant remained totally
disabled. FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination to resolve the conflict.9
OWCP selected Dr. Wagner to resolve the conflict. It is well established that, when a
case is referred to an impartial medical examiner for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.10 Dr. Wagner provided a complete history
6

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

7

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

8

Supra note 3.

9

5 U.S.C. § 8123. Id. at § 10.321 indicates that the examination by the third physician is called a referee or
impartial examination.
10

See F.C., Docket No. 16-1523 (issued May 15, 2017); Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

and he reviewed in detail the medical evidence of record. He provided results on examination
and based his opinion on a complete and accurate background. Dr. Wagner provided a wellreasoned medical opinion that appellant had no current employment-related medical conditions.
He found that any changes in the spine were part of the normal aging process, not an
employment-related condition, and he indicated that there were no objective findings on
examination and no evidence of an active employment-related condition. Dr. Wagner indicated
that appellant’s only problems related to a physical deconditioning, unrelated to the employment
injury. The Board, thus, finds that Dr. Wagner represents the weight of the medical evidence in
this case.
On appeal counsel argues that Dr. Wagner’s report was insufficient to meet OWCP’s
burden of proof. He argues that Dr. Wagner failed to acknowledge the full extent of appellant’s
accepted conditions, but Dr. Wagner provided a detailed history and review of the evidence, and
the SOAF clearly reported the accepted conditions. A psychological condition has not been
accepted as causally related to the accepted injury and appellant never filed a claim based on
psychological conditions causally related to his accepted injury.11 Counsel argues that
Dr. Wagner reported that appellant was not totally disabled solely due to an employment injury,
without considering whether there was a contribution from an employment injury. Dr. Wagner,
as noted, found that there was no continuing active employment-related condition. Counsel also
argues that the SOAF was improper as it contained information that biased Dr. Wagner, since it
confirmed that appellant remained off work and received compensation every 28 days. The
information as to appellant’s continuing disability is relevant as the issue was whether he
remained disabled due to an employment injury. OWCP procedures explain that the SOAF
should provide the claimant’s “employment history, including periods of wage loss and returns
to full or light duty for the present claim -- helps put the employee’s injury and work history in
perspective. If the employee did not stop work, that should be reported.”12
For the reasons discussed above, the Board finds that OWCP met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective April 12, 2016.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
and medical compensation benefits effective April 12, 2016.

11

See C.D., Docket No. 09-1152 (issued February 23, 2010).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.809.5 (September 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 16, 2016 is affirmed.
Issued: October 25, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
DEPARTMENT OF THE ARMY, RESEARCH,
DEVELOPMENT & ENGINEERING
COMMAND, PICATINNY ARSENAL, NJ,
Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1175
Issued: November 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 1, 2019 appellant, through counsel, filed a timely appeal from a December 6, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted July 14, 2017 employment incident.
FACTUAL HISTORY
On July 18, 2017 appellant, then a 61-year-old industrial engineering technician, filed a
traumatic injury claim (Form CA-1) alleging that on July 14, 2017 he slipped backward on wet
steps, slid downward on his back and buttocks, and sustained bruises and abrasions on his left arm,
shoulders, back, and buttocks while in the performance of duty. He provided a July 14, 2017
witness statement from coworker M.F. indicating that appellant slipped and fell backward down
three stairs, landing on his buttocks, back, and shoulders.
Appellant sought treatment on July 14, 2017 at the employing establishment health clinic,
but there was no physician or nurse on duty.
In a July 17, 2017 report, Dr. James Bilello, Board-certified in occupational and preventive
medicine, noted appellant’s account of falling on stairs at work on July 14, 2017. He ordered
x-rays.3 Dr. Bilello restricted appellant to light duty. Appellant returned to full duty in late
July 2017.
In September 26, 2017 reports, Dr. Michael A. Deehan, a Board-certified orthopedic
surgeon, noted that on July 14, 2017 appellant slipped and fell backward on wooden steps while
at work, injuring his right shoulder. He diagnosed right rotator cuff impingement and a labral tear.
On October 12, 2017 appellant filed a notice of recurrence (Form CA-2a), claiming
disability for work commencing September 26, 2017. He described continued soreness of the right
shoulder. Appellant noted that on July 25, 2017 he had sustained a separate and unrelated
employment injury to his left hand.4
In an October 23, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him. OWCP afforded
appellant 30 days to respond.
In response, appellant submitted a November 13, 2017 statement. He described slipping
and falling backward on four stairs of a wooden dock, striking his back, tailbone, and shoulders.
Appellant sought treatment at an employing establishment clinic where he had abrasions cleaned.
On July 17, 2017 he underwent x-rays and a clinic physician diagnosed arthritis of the right

3

July 17, 2017 x-rays demonstrated mild degenerative changes of the right shoulder, postsurgical changes of the
lower cervical and upper thoracic spine, and mild disc space narrowing at L5-S1.
4
On July 25, 2017 appellant sustained a small puncture wound to the dorsum of the first web of the left hand from
a fragment of a snapped drill bit. OWCP assigned the claim OWCP File No. xxxxxx026.

2

shoulder. Appellant returned to work. As his symptoms remained significant, he consulted
Dr. Deehan, who diagnosed a rotator cuff tear.5
An October 13, 2017 magnetic resonance imaging (MRI) scan of the right shoulder
demonstrated a full-thickness supraspinatus tear with retraction, high-grade tears of the
subscapularis and infraspinatus tendons, a superior labral tear, acromioclavicular arthrosis,
subacromial and subdeltoid bursitis, and glenohumeral joint effusion.
In a report dated November 9, 2017, Dr. Deehan noted that on July 14, 2017 appellant
injured himself at work when he fell “backwards and injured his shoulder.” Appellant’s right
shoulder dysfunction, weakness, and pain remained unimproved. Dr. Deehan diagnosed a right
rotator cuff tear requiring arthroscopic repair.
By decision dated December 6, 2017, OWCP accepted that the July 14, 2017 incident
occurred at the time, place, and in the manner alleged, but denied appellant’s claim, finding that
he had not met his burden of proof to establish causal relationship.
On December 18, 2017 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. He submitted additional evidence.
In an October 19, 2017 report, Dr. Deehan diagnosed right supraspinatus and infraspinatus
tears, impingement, and chronic pain.
In a January 11, 2018 report, Dr. Philip E. Lutz, a Board-certified anesthesiologist, noted
that appellant had slipped and fallen down four steps while at work on July 14, 2017 striking his
buttocks, back, and head. On examination, he found limited range of right shoulder motion,
diminished grip strength in the right hand, and lumbar paraspinal tenderness. Dr. Lutz prescribed
medication.6
In a report dated March 1, 2018, Dr. Lutz noted progressive atrophy of the right shoulder
with decreased strength and range of motion. He diagnosed a post-traumatic right rotator cuff and
labral tears, acromioclavicular arthrosis, bursitis, glenohumeral joint effusion, marked
acromioclavicular osteoarthritis, chronic right shoulder pain, and lumbar stenosis with bilateral
radiculopathy.
In a March 14, 2018 report, Dr. Deehan noted the accepted July 2017 employment
incident. He diagnosed a right labral tear of the supraspinatus tendon with retraction, a
subscapularis tendon tear, and infraspinatus tendon tear. Dr. Deehan indicated that the arthritic
changes in the AC joint certainly preexisted the trauma sustained. He opined that “the causative
factor of [appellant’s] shoulder problem is clearly the trauma he sustained and these injuries are
structurally quite substantial.”

5

Appellant also submitted witness statements from coworkers O.D. and M.F., who corroborated appellant’s account
of his slip and fall down wooden stairs. Immediately, after the incident, the coworkers transported appellant to the
employing establishment’s health clinic for evaluation.
6

Dr. Lutz also provided January 15, 2018 laboratory test results.

3

At the hearing, held on May 14, 2018, counsel contended that appellant’s uncontroverted
assertion of a right shoulder injury related to the accepted July 14, 2017 employment incident was
supported by the detailed opinions of Dr. Deehan and Dr. Lutz. Counsel emphasized that
Dr. Deehan provided medical rationale differentiating preexisting arthritis from the claimed
traumatic injury.
By decision dated June 14, 2018, an OWCP hearing representative affirmed the
December 6, 2017 decision, finding that the medical evidence of record was insufficient to
establish causal relationship.
On September 18, 2018 appellant, through counsel, requested reconsideration. Counsel
submitted additional medical evidence.
In a June 4, 2018 report, Dr. Deehan explained that the accepted July 14, 2017 incident
“resulted in forceful motion of the right arm and resulted in tear of the rotator cuff. This is a
common mechanism for this type of injury and is clearly causative based on his history of absence
of prior disease and confirmatory MRI [scan].”
By decision dated December 6, 2018, OWCP denied modification as the evidence of record
did not contain sufficient medical rationale supporting causal relationship to meet appellant’s
burden of proof.
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,7 that an injury 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.8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.10
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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.11 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.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of his claim, appellant provided a series of reports from Dr. Deehan, dated from
September 26, 2017 to June 4, 2018. In his initial report, Dr. Deehan noted the accepted July 14,
2017 employment incident in which appellant slipped and fell backward on wooden stairs, sliding
downward on his back, buttocks, and right shoulder. He opined on November 9, 2017 that the
accepted incident caused a right rotator cuff tear. Additionally, Dr. Deehan in his March 14, 2018
report indicated that the arthritic changes in the AC joint certainly preexisted the trauma sustained.
He opined that the causative factor of his shoulder problem was clearly the trauma between
appellant’s preexisting acromioclavicular joint arthritis and the claimed traumatic injury.
Dr. Deehan opined that the rotator cuff injuries were clearly caused by the July 14, 2017 traumatic
incident as they were structurally substantial. He elaborated in a June 4, 2018 report that forceful
right arm motion during the accepted July 14, 2017 employment incident caused the diagnosed
rotator cuff tendon tears. Dr. Deehan noted that this was a common method of causation and had
been confirmed by MRI scan.
Dr. Deehan provided a consistent, detailed explanation of how appellant’s right shoulder
conditions resulted from accepted July 14, 2017 employment incident. Although his reports are
insufficient to discharge appellant’s burden of proving that his current right shoulder conditions
were caused or aggravated by the July 14, 2017 employment incident, his opinion is of sufficient

10

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee) and 10.5(q)
(traumatic injury and occupational disease defined, respectively).
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB 345(1989).

12

James Mack, 43 ECAB 321 (1991).

13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
R.A., Docket No. 19-0423 (issued August 7, 2019); D.S., Docket No. 17-1359 (issued May 3, 2019).

5

probative quality to require further development of the case record by OWCP, and is
uncontroverted in the record.14
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.15
On remand OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician should provide an evaluation and a
rationalized medical opinion as to the relation of the claimed right shoulder conditions to the
accepted July 14, 2017 employment incident. After such further development of the case record
as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: November 15, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
14

R.A., id.; D.S., id.

15
Id.; X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019);
William J. Cantrell, 34 ECAB 1223 (1983).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION REGIONAL
OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 08-2378
Issued: July 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 2, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs’ dated January 15 and August 11, 2008 that denied her claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition causally related to her federal employment on August 3, 2007.
FACTUAL HISTORY
On August 28, 2007 appellant, then a 39-year-old veterans service representative (VSR),
filed a Form CA-1, traumatic injury claim, alleging that on August 3, 2007 she sustained an
emotional condition when while on temporary duty at the St. Paul, Minnesota regional office,
she was pulled from a classroom and dismissed from her temporary position as a challenge

curriculum course instructor. She claimed that this occurred because she was the only minority
and African-American woman working with an all white staff.
In an August 8, 2007 statement, Carol Burke, course manager, advised that appellant was
an alternate instructor for national VSR training list and was selected to replace an instructor
who could not attend the training. She described events that led up to the August 3, 2007
removal. Appellant presented documents concerning her right ear neurosensorial hearing loss,
right eye blindness and uncontrollable bowel but had not requested any special accommodation
while at St. Paul. Ms. Burke related that on August 1, 2007 appellant gave a presentation that
was attended by, a training mentor, John Gustin, who reported that appellant’s instruction was
deficient in content and accuracy, showing a lack of familiarity with the materials. On the
morning of August 2, 2007 appellant instructed a different class and provided a handout to all
attendees. The course manager was not aware that appellant would provide a handout, which
contained multiple grammatical errors. Mr. Gustin observed this class and again advised that she
lacked adequate skills in substantive areas as an instructor. He felt that appellant should not be
permitted to continue teaching. On Friday August 3, 2007 appellant presented another course
and received poor evaluations from the attendees. Ms. Burke stated that, at approximately
3:00 p.m. that day, Jeffrey Alger, the regional director of operations, held a meeting and stated
that appellant would be relieved of her duties. She brought appellant to a conference room for a
meeting with Mr. Alger, Kay Anderson, a course manager, and Sheila Jackson, a coach in
St. Paul. At the meeting Mr. Alger informed appellant that her teaching responsibilities were
finished because her instruction was sub par and that she was expected to report back to her
Chicago office on Monday morning.
Appellant requested union representation and
Stanley Walton, a St. Paul union steward, met with her, after which he stated further discussion
with management was not needed. Ms. Burke also notified appellant’s hotel that she would be
checking out that weekend and, on the afternoon of Sunday August 5, 2007, was notified that she
had not checked out. When she called the hotel, she was informed that at 1:00 a.m. that
morning, appellant was taken to a local hospital by ambulance. Ms. Burke notified Mr. Alger
that she was hospitalized and he notified the director of the Chicago regional office of the
situation. Appellant’s fiancé informed Ms. Burke that she would be in the hospital all week.
In an August 8, 2007 statement, Mr. Alger reported that, on August 1, 2007,
Ms. Anderson informed him that she was prepared to pull the St. Paul employees from the
training provided by appellant because it was not up to St. Paul standards. He informed
Ms. Anderson that she could not take that prerogative but could reteach the material at a later
date if necessary. Mr. Alger reported that on August 2, 2007 he was informed about appellant’s
handout, which had not been shared with either the course manager or other instructors and was
concerned because this appeared to be a manipulation of students’ evaluations. He discussed this
with Mr. Olson, and asked Ms. Anderson and Ms. Burke to monitor class activities to ensure the
course curriculum was being followed and to ensure that there were no more disruptions to the
appropriate training. Mr. Alger related that, on August 3, 2007, Ms. Anderson told him that the
morning presentation by appellant was substandard. He then asked and was granted permission
from the central area and office of field operations to remove her as an instructor for failure to
2

follow the prescribed curriculum and for presenting the material in a substandard fashion.
Mr. Alger described the meeting later that day with appellant, Ms. Anderson, Ms. Jackson and
Ms. Burke when he informed her that her presentation skills were substandard and that she was
to return to Chicago. He stated that appellant’s immediate response was that Mr. Alger was
racist and demanded union representation, which was provided. Mr. Alger was subsequently
called by Ms. Burke and informed that appellant was taken to the hospital by ambulance.
By letter dated September 24, 2007, the Office informed appellant that her claim would
be adjudicated as an occupational disease and informed her of the evidence needed to support her
claim. On October 13, 2007 appellant stated that she returned to work on October 1, 2007 and
was continuing psychiatric care. She requested that her vision problems be included as part of
the claim because she had to get treatment. Appellant advised that she had filed an Equal
Employment Opportunity Commission (EEOC) claim. On October 29, 2007 she informed the
Office that she was not filing a claim of occupational illness or disease because her condition
was caused by the traumatic incident of August 3, 2007. Appellant stated that, on August 3,
2007, around 3:50 p.m. while she was assisting teaching a class, she was interrupted in front of
the class by Ms. Burke, who is white, who told her to come with her and she was then placed
alone in a room. Mr. Alger, who is white, came into the room and told her in a “mean and cold
tone” that she was being sent back to Chicago. As a result of this, appellant was hospitalized
beginning August 5, 2007. She submitted medical reports from her hospitalization at the
University of Minnesota Fairview Hospital, where she was admitted on August 5, 2007 and
discharged on August 13, 2007. Appellant was treated there by Dr. Boris Kholomyansky,
psychiatrist, who diagnosed adjustment disorder with depressed mood/anxiety with possible
personality disorder traits. She reported that she had a history of low-grade depression and was
being treated with Prozac and seeing a Dr. Valentin Berman, a Board-certified psychiatrist, in
Chicago.
In an August 15, 2007 report, Dr. Rion Rowles, an osteopath, provided a psychiatric
assessment, noting that appellant was referred for the partial hospital program at Advocate
Christ Medical Center. He diagnosed major depressive disorder, severe, with psychotic features.
In an August 30, 2007 note, Dr. Berman advised that appellant should be excused from work
from August 4 to December 31, 2007. In an attending physician’s report dated September 24,
2007, she diagnosed psychotic depression and paranoia and checked a form box “no,” advising
that the diagnosed conditions were not caused or aggravated by employment activity.
Dr. Berman noted that appellant was on four medications and was totally disabled. In a
November 9, 2007 report, Barbara Brooks, a therapist, advised that appellant was referred by
Dr. Berman for therapy beginning August 18, 2007 and had been compliant. She advised that
there was a 50/50 percent probability that appellant experienced a nervous breakdown on
August 3, 2007 due to being forced to leave her job.
By decision dated January 15, 2008, the Office denied the claim, finding that the medical
evidence did not mention a work-related incident or explain how employment factors caused the
diagnosed condition.
3

On January 17, 2008 appellant requested a hearing, reiterating that she was not filing an
occupational disease claim. At the hearing, held on May 20, 2008, she testified that St. Paul was
her first teaching assignment and she was to be there for three weeks. Appellant described the
events of Friday, August 3, 2007 and noted that when she returned to the hotel she became sick
and suicidal. She called the suicide hot line and, after her fiancé arrived, he called an ambulance.
Appellant was hospitalized for five days in St. Paul and, upon her return to Chicago, entered day
treatment. She returned to work on October 1, 2007 and continued treatment with Dr. Berman
and Lynne Dolce-Brouwer. Appellant alleged that while in St. Paul the other instructors were
rude to her and considered this to be racism. She noted that Ms. Jackson was the only AfricanAmerican manager there and testified that Mr. Alger did not explain why she was being sent
home. Although the union representative in St. Paul said he would investigate the situation, he
did not. Appellant concluded that the August 3, 2007 removal was a demeaning experience. In a
May 19, 2008 report, Ms. Brouwer, M.S.W., noted appellant’s report of the precipitating events
in St. Paul and described her treatment at the hospital there. She began treating appellant on
August 18, 2007, described her symptoms and diagnosed severe depression with psychotic
features.
By decision dated August 11, 2008, a hearing representative modified the January 15,
2008 decision to reflect that appellant failed to establish a compensable factor of employment
and thus failed to establish that she sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.4 When an employee experiences
emotional stress in carrying out his employment duties and the medical evidence establishes that
1

Ronald K. Jablanski, 56 ECAB 616 (2005).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 137 (1999).

4

the disability resulted from his emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability results from his emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of his work.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.10
With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEOC, which is charged with statutory authority to investigate and evaluate such matters
in the workplace. Rather, in evaluating claims for workers’ compensation under the Act, the
term “harassment” is synonymous, as generally defined, with a persistent disturbance, torment or
5

Lillian Cutler, supra note 2.

6

See Dennis J. Balogh, 52 ECAB 232 (2001).

7

Id.

8

Charles D. Edwards, 55 ECAB 258 (2004).

9

Kim Nguyen, 53 ECAB 127 (2001).

10

James E. Norris, 52 ECAB 93 (2000).

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persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and feelings of
harassment will not support an award of compensation.11
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition on August 3, 2007. Appellant did not attribute her emotional
condition to the performance of her regular duties as a veterans service representative in
Chicago. Rather, she attributed her condition to how she was treated at a meeting on August 3,
2007 when she was removed as a training instructor while on temporary duty in St. Paul.
Appellant contended that she was harassed and discriminated against at the meeting, which was
abusive.
Management officials in the St. Paul training program provided a lengthy explanation
describing their experiences with appellant from July 30 to August 3, 2007. Mr. Alger, the
regional director, advised that after checking with the central office and field operations, he was
granted permission to remove appellant from her teaching duties. Appellant was dismissed from
the program for failure to follow the prescribed curriculum and for presenting the material in a
substandard manner.
Disciplinary actions are administrative functions of the employer and not duties of the
employee and, unless the evidence discloses error or abuse on the part of the employing
establishment, not compensable employment factors.12 In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.13 Other than stating that she had filed an EEOC claim, appellant
did not submit sufficient evidence to show error or abuse on the part of the St. Paul officials.
The primary reason for requiring factual evidence from the claimant in support of his or her
allegations of stress in the workplace is to establish a basis in fact for the contentions made as
opposed to mere perceptions.14 Appellant submitted no such evidence. She therefore did not
establish a compensable employment factor with regard to this administrative matter.
Regarding appellant’s contention that she was harassed at the meeting and treated in a
discriminatory manner, mere perceptions of harassment or discrimination are not compensable
under the Act.15 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. A claimant must establish
11

Beverly R. Jones, 55 ECAB 411 (2004).

12

Jeral R. Gray, 57 ECAB 611 (2006).

13

Robert Breeden, 57 ECAB 622 (2006).

14

J.F., 59 ECAB ____ (Docket No. 07-308, issued January 25, 2008).

15

James E. Norris, supra note 10.

6

a factual basis for his or her allegations with probative and reliable evidence.16 As noted
appellant did not submit sufficient evidence to support her contention. She therefore did not
establish a factual basis for her claim of harassment by probative and reliable evidence.17
There is no affirmative evidence of record to establish that the incident of August 3, 2007
rose to the level of error or abuse or otherwise comes within the coverage of the Act.
Appellant’s reaction would be considered self-generated and not a compensable factor of
employment.18 As the record lacks probative evidence to support her claim, the Board finds that
she has not established a compensable employment factor of employment. Appellant did not
establish that she sustained a stress-related condition on August 3, 2007.19
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

16

Id.

17

See Robert Breeden, 57 ECAB 622 (2006).

18

V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007).

19

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the August 11, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8