United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Roanoke, VA,
Employer
__________________________________________

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

Docket No. 18-0506
Issued: August 15, 2018

Case Submitted on the Record

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

JURISDICTION
On January 12, 2018 appellant filed a timely appeal from an August 28, 2017 merit
decision and November 1 and December 14, 2017 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a lumbar
strain causally related to the accepted February 7, 2017 employment incident; and (2) whether
OWCP, in its November 1 and December 14, 2017 decisions, properly denied his requests for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 13, 2017 appellant, then a 39-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on February 7, 2017 he experienced low back pain on the
left side after lifting a tray of letters from an all-purpose container while in the performance of
duty. He stopped work on February 12, 2017.
A physician with an illegible signature completed a February 15, 2017 duty status report
(Form CA-17). The physician diagnosed low back strain and provided work restrictions.
In a March 3, 2017 development letter, OWCP requested that appellant provide additional
factual and medical information in support of his claim, including a detailed factual statement and
a report from his attending physician addressing the causal relationship between any diagnosed
condition and the claimed February 7, 2017 work incident. It afforded him 30 days to respond to
its request for additional evidence.
OWCP thereafter received a February 24, 2017 disability certificate from Dr. Elvis Ramon
Pagan, a Board-certified internist. Dr. Pagan related that he began treating appellant on
February 15, 2017 and indicated that he could resume work with limitations on March 1, 2017. It
also received a February 28, 2017 CA-17 form from a physician with an illegible signature. On
March 21 and 27, 2017 OWCP received additional CA-17 forms, but the date and signature are
not visible on the imaged form.
By decision dated April 4, 2017, OWCP denied appellant’s traumatic injury claim after
finding that he had not established the occurrence of the February 7, 2017 employment incident.
It determined that he had not provided a detailed statement describing the circumstances
surrounding the alleged work incident.
Subsequent to OWCP’s decision, appellant submitted a March 1, 2017 report from
Dr. Hetzak Hartley, Board-certified in occupational medicine. Dr. Hartley noted that he
experienced low back pain radiating down the left lower extremity after he picked up mail about
three weeks earlier. On examination he found tenderness to touch and pain in the left S1 joint.
Dr. Hartley diagnosed a work-related injury, lumbar strain, and acute low back pain on the left
side with left sciatica. He provided work restrictions.
In a March 14, 2017 progress report, Dr. Hartley related that appellant had a history of
degenerative disc disease with intermittent significant back pain for seven years. He diagnosed
low back strain, a work-related injury, and sciatica on the left side.
On March 22, 2017 Dr. Hartley obtained a history of appellant injuring his low back four
weeks earlier after lifting a heavy container causing symptoms of left sciatica. He found tenderness
at L2-3 on the posterior lumbar spine and a normal straight leg raise on examination. Dr. Hartley
diagnosed lumbar strain.
Dr. Hartley completed work restriction forms on February 28, and March 14 and 22, 2017.
On the forms he provided the date of injury as February 7, 2017, diagnosed low back strain with
left sciatica, and found that appellant could perform modified duty.

2

A March 31, 2017 magnetic resonance imaging (MRI) scan study of appellant’s lumbar
spine revealed a disc bulge at L3-4 with osteophytes, mild bilateral facet arthropathy with a disc
bulge and central annular tear at L4-5, and mild bilateral facet arthropathy and a disc bulge at
L5-S1.
In an April 3, 2017 CA-17 form, Dr. Chand Singh, a Board-certified internist, diagnosed
lumbar strain and checked a box marked “yes” that the history provided by appellant corresponded
to that on the form of him feeling a pop and pinch in his back on the left side after lifting a tray.
He provided work restrictions. In an April 3, 2017 report, Dr. Singh noted that appellant had not
been able to work recently due to pain. He diagnosed lumbar back strain and found that he should
continue modified employment. At the end of the report, Dr. Singh diagnosed chronic bilateral
low back pain without sciatica and a work-related injury.
Dr. Hartley, in an attending physician’s report (Form CA-20) dated April 13, 2017,
diagnosed lumbar back strain and checked a box marked “yes” that the condition resulted from the
employment activity of picking up a box of mail. He found that appellant could work as of
February 27, 2017 with restrictions.
Appellant, on May 31, 2017, requested reconsideration. In a May 24, 2017 statement, he
described the claimed February 7, 2017 work incident and his subsequent medical treatment.
By decision dated August 28, 2017, OWCP modified its April 4, 2017 decision to find that
appellant had established the occurrence of the February 7, 2017 employment incident. It
determined, however, that the medical evidence of record was insufficient to establish that he
sustained a diagnosed condition causally related to the accepted work incident. OWCP noted that
Dr. Hartley did not explain his causation finding on the April 13, 2017 CA-20 form.
On October 3, 2017 appellant requested reconsideration. In a September 27, 2017
statement, he asserted that he did not have a history of back pain for seven years, but rather had
experienced low back pain seven years earlier that had resolved until the occurrence of the
February 7, 2017 employment incident. Appellant related that Dr. Hartley clarified the CA-20
form that he completed.
By decision dated November 1, 2017, OWCP denied appellant’s request to reopen the case
for further review of the merits under section 8128(a). It found that he had not provided any new
evidence or argument in support of his reconsideration request.
Subsequent to OWCP’s November 1, 2017 decision, appellant resubmitted the April 13,
2017 Form CA-20 from Dr. Hartley. The form included an addition specifying that the condition
was caused or aggravated by employment as “picking up mail caused LBS [low back strain] shortly
after the incident.”
On November 12, 2017 appellant again requested reconsideration. He resubmitted his
September 27, 2017 statement. Appellant also submitted a report from a March 22, 2017 x-ray of
the lumbosacral spine.

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By decision dated December 14, 2017, OWCP denied appellant’s request to reopen his
case for further merit review under section 8128(a). It found that the evidence submitted was
cumulative and repetitious.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 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 an 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.3 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.4
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
time, place, and in the manner alleged.5 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.7 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.8 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).9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a lumbar strain
causally related to the accepted February 7, 2017 employment incident.
2

5 U.S.C. § 8101 et seq.

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

See Bonnie A. Contreras, 57 ECAB 364 (2006); Gary J. Watling, 52 ECAB 278 (2001).

6

See T.H., 59 ECAB 388 (2008); Deborah L. Beatty, 54 ECAB 340 (2003).

7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 2006.

8

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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OWCP accepted that the employment incident of February 7, 2017 occurred as alleged. It
denied his claim because he had not submitted sufficient medical evidence which contained a
medical diagnosis causally related to the claimed February 7, 2017 employment injury.
The record contains a February 15, 2017 CA-17 form from a physician with an illegible
signature and additional CA-17 forms where the date and the signature are not visible. A medical
report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in section 8101(2) of FECA,10 and reports
lacking proper identification do not constitute probative medical evidence.11
In a February 24, 2017 disability certificate, Dr. Pagan indicated that appellant could work
with restrictions beginning March 1, 2017. As he did not provide a history of injury, examination
findings, a firm diagnosis of a particular medical condition, or address whether the accepted
February 7, 2017 work incident caused or aggravated appellant’s condition and resultant disability,
his opinion is of little probative value.12
On March 1, 2017 Dr. Hartley reviewed appellant’s history of low back pain with left
radiculopathy after he picked up mail around three weeks earlier. He provided examination
findings and diagnosed a work-related injury, lumbar strain, and left low back pain with left
sciatica. While Dr. Hartley generally mentioned that appellant had experienced a work injury, he
did not specifically relate the lumbar strain and left sciatica to the accepted February 7, 2017 work
incident or provide any rationale for his opinion.13 Medical conclusions unsupported by rationale
are of little probative value.14
In a March 14, 2017 progress report, Dr. Hartley advised that appellant had a history of
degenerative disc disease and had experienced periodical back pain for seven years. He did not
address the issue of whether appellant experienced a work injury on February 7, 2017 and thus,
the report is insufficient to meet his burden of proof.
Dr. Hartley, on March 22, 2017, discussed appellant’s history of an injury to his low back
causing left sciatica which occurred four weeks earlier after he lifted a heavy container. He found
tenderness at L2-3 and diagnosed lumbar strain. Dr. Hartley, however, did not specifically
attribute the diagnosed conditions to the accepted February 7, 2017 work incident. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.15

10

5 U.S.C. § 8101(2).

11

See C.B., Docket No. 09-2027 (issued May 12, 2010); Richard F. Williams, 55 ECAB 343 (2004).

12

See D.M., Docket No. 16-1885 (issued February 15, 2017).

13

See C.C., Docket No. 08-0017 (issued September 2, 2008).

14

See Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

15

See S.E., Docket No. 08-2214 (issued May 6, 2009).

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In work restriction forms dated February 28 and March 14, and 27, 2017, Dr. Hartley
diagnosed low back strain with left sciatica and opined that appellant could perform limited-duty
employment. While on the forms he indicated the date of injury as February 7, 2017, he did not
provide a history of injury or specifically relate the diagnosed condition to the accepted work
incident. As Dr. Hartley failed to offer a definite opinion on causal relationship between the
diagnosed low back strain with left sciatica and the February 7, 2017 employment incident, his
reports are of diminished probative value.16
Dr. Singh, in an April 3, 2017 CA-17 form, diagnosed lumbar strain and checked a box
marked “yes” that the history provided on the form corresponded to that told by appellant of
experiencing a pop and pinch in his back on the left side after lifting a tray. The Board has held
that an opinion on causal relationship which consists only of a physician checking a box marked
“yes” to a medical form report question on whether the claimant’s condition was related to the
history given is of little probative value. Without an explanation or rationale for the conclusion
reached, such report is insufficient to establish causal relationship.17
On April 3, 2017 Dr. Singh diagnosed chronic low back pain without sciatica. The history
provided by appellant corresponded to that on the form of him feeling a pop and pinch in his back
on the left side after lifting a tray. He did not, however, specifically identify the diagnosed
condition resulting from an employment injury or provide any rationale for his opinion. Without
a firm diagnosis supported by medical rationale, the report is of little probative value.18
In an April 13, 2017 CA-20 form, Dr. Hartley diagnosed lumbar back strain and checked
a box marked “yes” that the condition resulted from the employment activity of picking up a box
of mail. As noted, when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, without explanation or rationale, that opinion has little probative value
and is insufficient to establish a claim.19
On appeal appellant asserts that OWCP denied his claim as Dr. Hartley failed to explain
his causation finding on the CA-20 form. He relates that he took the form to Dr. Hartley, who
provided an explanation for his finding. Appellant questions why OWCP continues to deny his
claim. Appellant has the burden of proof to submit rationalized medical evidence establishing that
he sustained an injury causally related to the accepted February 7, 2017 employment incident.20
For the reasons set forth above, he failed to submit such evidence and thus did not meet his burden
of proof.21

16

See P.R., Docket No. 16-1666 (issued January 13, 2017).

17

See R.H., Docket No. 18-0021 (issued March 22, 2018).

18
See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
19

Deborah L. Beatty, supra note 6.

20

See D.T., Docket No. 17-1734 (issued January 18, 2018).

21

See D.S., Docket No. 18-0061 (issued May 29, 2018).

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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 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.23
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.24 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.25 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s timely requests for
reconsideration of the merits of his claim under section 8128(a). The underlying issue is whether
he submitted sufficient medical evidence to establish an injury causally related to the accepted
February 7, 2017 employment incident.
In support of his October 3, 2017 request for reconsideration, appellant did not allege that
OWCP erroneously applied or interpreted a specific point of law or submit pertinent new and
relevant evidence. He related that he had not experienced back pain for seven years, but instead
had experienced back pain seven years earlier that had resolved until the time of the February 7,
2017 work incident. However, the underlying issue in this case is whether the medical evidence
is sufficient to demonstrate that appellant sustained low back pain with left sciatica causally related
to the accepted February 7, 2017 work incident. His lay opinion regarding his condition is not
relevant to the medical issue in this case, which can only be resolved through the submission of
probative medical evidence from a physician.27 As appellant did not meet any of the necessary
22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

24

Id. at § 10.607(a).

25

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

26

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

27

See C.N., Docket No. 17-1475 (issued May 23, 2018).

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regulatory requirements, he was not entitled to further merit review based on his October 3, 2017
reconsideration request.
Appellant again requested reconsideration on November 12, 2017. He did not contend that
OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered. Appellant submitted an updated April 13, 2017 CA-20 form
which provided a notation that his condition was caused or aggravated by employment as he
experienced low back strain after the incident. Dr. Hartley, however, did not initial the addition
on the form or otherwise provide an updated signature to attest to his opinion and thus the updated
report does not constitute relevant medical evidence.28 Additionally, while the notation indicated
that appellant experienced low back strain after the incident, it did not clearly address the relevant
issue of how the accepted employment incident of February 7, 2017 caused a diagnosed condition.
Appellant also submitted a March 22, 2017 x-ray of the lumbar spine. Diagnostic studies
are of limited probative value as they do not address whether the employment incident caused any
of the diagnosed conditions.29 As this evidence is not relevant to the issue of the cause of his back
condition, it is insufficient to constitute a basis for reopening the case.30
The Board accordingly finds that appellant, in his October 3 and November 12, 2017
requests for reconsideration, did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3).
Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.31
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to an accepted February 7, 2017 employment incident. The Board further finds
that OWCP, in its November 1 and December 14, 2017 decisions, properly denied his request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

28

A report that lacks proper identification cannot be considered probative medical evidence. See K.B., Docket No.
17-1363 (issued February 14, 2018).
29

See R.S., Docket No. 17-1139 (issued November 16, 2017); G.M., Docket No. 14-2057 (issued May 12, 2015).

30

See E.R., Docket No. 17-0540 (issued July 26, 2017).

31

See R.C., Docket No. 17-1314 (issued November 3, 2017) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the December 14, November 1, and August 28, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 15, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 22-0009
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On October 3, 2021 appellant filed a timely appeal from a September 24, 2021 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 met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 6, 2020 appellant, then a 51-year-old program specialist, filed an occupational
disease claim (Form CA-2) alleging that she developed trigger finger of her left middle finger due
to factors of her federal employment. She explained that she was working at her computer and
experienced left hand and left middle finger pain. Appellant noted that she first became aware of
1

5 U.S.C. § 8101 et seq.

her condition on April 21, 2020 and realized its relation to her federal employment on
May 5, 2020. She stopped work on May 6, 2020.
In a May 8, 2020 development letter, OWCP informed appellant that it had not received
any evidence in support of her claim. It advised her of the type of factual and medical evidence
necessary and provided a questionnaire for her completion. In a separate development letter of
even date, OWCP requested that the employing establishment provide additional information
regarding appellant’s alleged injury, including comments from a knowledgeable supervisor
regarding the accuracy of her allegations and an explanation of any areas of disagreeme nt. It
afforded both parties 30 days to submit the requested evidence.
OWCP thereafter received a May 5, 2020 after visit summary by Dr. Nwamaka Olutola
Oluwato, a Board-certified family physician, who noted a diagnosis of left trigger finger and
hypertension, and referred appellant for an orthopedic evaluation. In a separate note of even date,
Dr. Oluwato recommended that she remain out of work through May 8, 2020.
Dr. Audrey K. Tsao, a Board-certified orthopedic surgeon, in a note dated May 5, 2020,
also diagnosed left middle trigger finger.
In a May 13, 2020 response to OWCP’s questionnaire, appellant indicated that she believed
that typing on a computer and using a keyboard for eight to nine hours per day for the past 20 years
had caused her symptoms. She noted that on April 21, 2020 she was working at her keyboard and
started feeling pain in her left hand and left middle finger, which progressively worsened each day.
Appellant related that she then woke up on May 5, 2020 and her left middle finger was stuck in
the bent position, so she massaged it until straightened out.
In a May 15, 2020 response to OWCP’s development letter, the employing establishment
noted that appellant used a keyboard for up to eight hours per day, which depended upon whether
she had to attend conference calls.
OWCP also received a position description for a program specialist with the employing
establishment.
By decision dated August 4, 2020, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her diagnosed condition was
causally related to the accepted factors of her federal employment.
OWCP continued to receive evidence, including a July 24, 2020 after visit summary by
Allison M. Parver, a physician assistant, who noted that appellant received an injection.
In a note dated September 4, 2020, Dr. Oluwato indicated that appellant had received
medical treatment for a diagnosis of left middle trigger finger. She opined that this diagnosis can
be caused by repetitive use, such as frequent typing or repeated finger and thumb use.
On September 12, 2020 appellant requested reconsideration of OWCP’s August 4, 2020
decision.
By decision dated December 11, 2020, OWCP denied modification of its August 4, 2020
decision.

2

On January 25, 2021 appellant requested reconsideration of OWCP’s December 11, 2020
decision. In support of her request, she submitted a January 13, 2021 note by Dr. Tsao, who
diagnosed left middle trigger finger and opined that typing and keyboard work had aggravated her
condition and irritated her trigger finger. The note further indicated that appellant had undergone
two injections and may require surgery.
By decision dated September 24, 2021, OWCP denied modification of its December 11,
2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 3 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. 4 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. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

A.K., Docket No. 21-0278 (issued July 12, 2021); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

M.V., Docket No. 18-0884 (issued December 28, 2018).

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rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In a January 13, 2021 medical note, Dr. Tsao diagnosed left middle trigger finger and
opined that typing and keyboard work had aggravated appellant’s condition and irritated her trigger
finger. Similarly, Dr. Oluwato, in her note dated September 4, 2020, opined that trigger finger can
be caused by repetitive use such as frequent typing or repeated finger and thumb use. While these
reports supported causal relationship, they did not a pathophysiological explanation of how the
accepted factors of federal employment were competent to cause the diagnosed condition . The
Board has held that a report is of limited probative value regarding causal relationship if it does
not contain medical rationale explaining how a given medical condition was related to accepted
employment factors. 10 Consequently, the January 13, 2021 note by Dr. Tsao and September 4,
2020 note by Dr. Oluwato are insufficient to meet appellant’s burden of proof to establish her
claim.
In separate treatment notes dated May 5, 2020, Drs. Oluwato and Tsao diagnosed left
middle trigger finger, but did not provide an opinion on causation. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship. 11 Therefore, these notes are also insufficient
to establish appellant’s claim.
The remaining evidence of record consists of a July 24, 2020 after visit summary by
Ms. Parver, a physician assistant. Certain healthcare providers such as physician assistants,
physical therapists, nurse practitioners, and social workers are not considered “physician[s]” as
defined under FECA. 12 Consequently, their medical findings and/or opinions will not suffice for

9

Id.; Victor Woodhams, supra note 6.

10

J.W., Docket No. 18-0678 (issued March 3, 2020); G.R., Docket No. 19-0940 (issued December 20, 2019); D.L.,
Docket No. 19-0900 (issued October 28, 2019); see also V.T., Docket No. 18-0881 (issued November 19, 2018); Y.D.,
Docket No. 16-1896 (issued February 10, 2017); T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket
No. 08-2214 (issued May 6, 2009).
11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

Section 8101(2) provides that under FECA the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practic e as defined
by the applicable state law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2
Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical
therapists are not considered physicians under FECA).

4

purposes of establishing entitlement to FECA benefits. As such, this evidence is insufficient to
establish appellant’s claim.13
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s diagnosed medical conditions and the accepted factors of her federal employment, the
Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

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

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

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

13

D.P., Docket No. 19-1295 (issued March 16, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); see
M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
David P. Sawchuk, id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Little Rock, AR,
Employer
__________________________________________

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

Docket No. 14-0770
Issued: September 29, 2015

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 February 21, 2014 appellant filed a timely appeal from a September 23, 2013 merit
decision and a January 21, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established an emotional condition in the
performance of duty; and (2) whether OWCP properly denied merit review of the claim under
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has previously been before the Board. On April 18, 2012 appellant, a 39-year
old mail handler and local union representative, filed a claim alleging an emotional condition
resulting from an altercation with a coworker that date. He alleged that the coworker (Joe Smith)
began talking with him about an upcoming union election and a verbal and physical altercation
occurred. Appellant alleged that he was a union steward, on official time, and engaged in the
performance of duty at the time of the incident. OWCP found that the altercation was not a
compensable work factor as it related to private union business.
Appellant appealed that decision and in its May 21, 2013 decision, the Board remanded
the case for additional factual development.2 It noted that OWCP procedures provided specific
guidelines for developing cases involving an alleged injury while a claimant was performing
representational functions and that OWCP had failed to follow those procedure in developing the
factual aspect of this case.
The Board cited OWCP procedure manual which states that when an employee claims to
have been injured while performing representational functions, an inquiry should be made to
determine whether the employee was on, or would have been eligible to be on, official time and
in the performance of duty at the time of the injury.3 The history of the case as set forth in the
Board’s prior decision is incorporated herein by reference.
Upon return of the case record, by letter dated June 17, 2013, OWCP requested
information from the employing establishment as to whether appellant was on official time and
in the performance of duty on April 18, 2012 at the time of the incident. In a response received
on July 17, 2013, the employing establishment confirmed, through time and attendance reports,
that appellant was on official time on April 18, 2012 and was within his official hours of duty at
the time of the altercation on that date.
As to whether appellant was actually in the performance of duty at the time of the
altercation, however, Alicia A. Settles, a human resources specialist responding on behalf of the
employing establishment, responded: “No, [appellant] was just walking around on the
workroom floor.” There were no witnesses to the incident and the reports of both appellant and
Mr. Smith differed considerably as to the circumstances surrounding the incident. The
employing establishment had conducted an investigation, interviewed witnesses, and concluded
that at the time of the incident appellant was not in the performance of duty.
Appellant was provided copies of the employing establishment response and afforded an
opportunity to provide additional evidence to support his burden of proof to establish that he was
in the performance of duty at the time of the incident.

2

Docket No. 12-1816 (issued May 21, 2013).

3

Id. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16
(September 2010).

2

On August 26, 2013 appellant submitted a response stating that on April 18, 2012 he had
just left his wife’s office in the Human Resources office and was on his way to look for a
supervisor “Allen.” While on his way to look for that supervisor, he was confronted by the
coworker, Mr. Smith. Mr. Smith allegedly, with his forearm, pushed appellant in the chest and
later pushed appellant in the face with his hand. Appellant claimed that he did not know why
Mr. Smith was mad but appellant stated that he had not supported Mr. Smith in the upcoming
election for president of the local branch of the union. He claimed that Mr. Smith could have
been upset because appellant had reported that his supporters had been improperly distributing
election literature on the workroom floor. Appellant also claimed that Mr. Smith was angry at
him for allegedly disparaging Mr. Smith to coworkers, which was detrimental to Mr. Smith’s
election campaign.
Mr. Smith denied that he had ever touched appellant. He claimed that any cuts on
appellant’s face would have been self-inflicted. Mr. Smith claimed that this type of behavior
was a union tactic. He claimed he was running against Bobby Nation for president and appellant
was a local steward under Mr. Nation.
By decision dated September 23, 2013, OWCP denied the claim for compensation
finding that appellant had not established a compensable work factor. It found appellant had
failed to establish that he was in the performance of duty at the time of the altercation with the
coworker. Citing Sylvester Blaze,4 OWCP found that the incident arose out of internal union
business and did not contribute to or was facilitated by the workplace. It was motived by a
personal union matter between appellant and the coworker and did not arise in the performance
of duty.
In a letter dated September 26, 2013, appellant requested reconsideration. He stated that
he was not just walking around at the time of the April 18, 2012 incident, and reiterated that he
was looking for a supervisor about a potential grievance and had been looking for job
information relevant to union members. Appellant resubmitted statements from other coworkers
and contended that the injury compensation specialist handling the case was biased.
By decision dated January 21, 2014, OWCP denied the claim without considering the
merits. It found the evidence submitted was either duplicative or irrelevant to the underlying
issue of whether appellant was in the performance of duty at the time of the incident.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment.5
4

Sylvester Blaze, 37 ECAB 851 (1986).

5

Lillian Cutler, 28 ECAB 125 (1976).

3

The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment.6 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment.7
The Board has recognized an exception to this general rule when employees performing
representational functions, which entitle them to official time, are injured when in the
performance of duty. The underlying rationale for this exception is that an activity undertaken
by an employee in the capacity of a union official may simultaneously serve the interest of the
employer.8 OWCP procedure manual indicates that “representational functions” include
“authorized activities undertaken by employees on behalf of other employees pursuant to such
employees’ right to representation under statute, regulation, executive order, or terms of a
collective bargaining agreement.9
ANALYSIS -- ISSUE 1
In the present case, OWCP found that appellant had not established a compensable work
factor. It accepted that an incident occurred on April 18, 2012, and confirmed that he was on
official time at the time of the incident;10 however, despite the fact that he was on official time,
OWCP found that he was outside the performance of duty as the dispute involved internal union
activity.
The Board has interpreted the phrase sustained while in the performance of duty as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely
arising out of and in the course of employment.11 Arising in the course of employment relates to
time, place, and work activity: to arise in the course of employment, an injury must occur at a
time when the employee may reasonably be said to be engaged in his employer’s business, at a
place where he may reasonably be expected to be in connection with his employment, and while
he was reasonably fulfilling the duties of his employment or engaged in doing something
incidental thereto.12 The Board finds that the singular fact that one is on paid, official time for
union representation is not enough to establish that every interaction during such official time is
within the performance of duty.

6

Jimmy E. Norred, 36 ECAB 726 (1985).

7

C.M., Docket No. 10-753 (issued December 15, 2010).

8

Marie Boylan, 45 ECAB 338, 342-43 (1994).

9

Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.804.16(b).

10

The Board will accept the employing establishment’s determination as to whether a union representative was
on official time. See Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.804.16(e).
11

Bernard D. Blum, 1 ECAB 1 (1947).

12

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

4

In this case, the record establishes that although appellant had been on official union
time, there is no evidence to establish that he was in the performance of duty at the time of the
altercation. He acknowledged that he had just left his wife’s office, in the human resources
department, and reportedly was on his way to speak with a supervisor.
As to the substance of the altercation, the evidence indicated that the coworker
confronted appellant over an upcoming union election. There were no witnesses at the time of
the alleged altercation, but there is also no dispute that the substance of the altercation was solely
related to local union matters. This confrontation is more properly characterized as a private
dispute unrelated to job duties.13 The burden of proof is on appellant to establish that he was in
the performance of duty at the time of the altercation. OWCP procedure manual explicitly states
that activities relating to the internal business of a labor organization, such as soliciting new
members or collecting dues, are not considered in the performance of duties.14 The Board finds
this altercation to have been a diversion from the performance of duty and became a private
dispute between the two factions of the local union.
The Board finds that as this matter was solely related to internal union business, appellant
has failed to establish a compensable work factor with respect to the April 18, 2012 incident.15
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), its regulations
provide that the evidence or argument submitted by a claimant must: (1) show that OWCP
erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument
not previously considered by it; or (3) constitute relevant and pertinent new evidence not
previously considered by OWCP.16 Section 10.608(b) of its regulations provide that when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(3), OWCP will deny the application without reopening the case for a
review on the merits.
ANALYSIS -- ISSUE 2
Following OWCP’s September 23, 2013 denial of the claim for compensation, appellant
filed a timely request for reconsideration. In support of his request, he disputed the employing
establishment’s contention that he was not in the performance of duty but was “just walking
around” at the time of the April 18, 2012 incident. Appellant reiterated that he was looking for a
13

This situation relates more similarly to the importing of personal, private disputes (e.g., Edward Savage, Jr., 46
ECAB 346 (1994)) than to the “friction and strain” doctrine referenced in the Federal (FECA) Procedure Manual,
supra note 3 at Chapter 2.804(12). Further, the Board finds this case to be beyond the facts in Joseph H. McHale,
45 ECAB 669 (1994) (where a union-related discussion was found to be an insubstantial deviation from the
performance of duty).
14

Federal (FECA) Procedure Manual, supra note 3 at Chapter 2.804.16(d).

15

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
16

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

5

supervisor about a potential grievance and had been reviewing job information relevant to union
members. He resubmitted statements from other coworkers and contended that the injury
compensation specialist handling the case was biased.
In its January 21, 2014 decision, OWCP found the evidence duplicative of documents
already submitted into the record and his argument regarding the bias of the injury compensation
specialist was found to be irrelevant to the underlying issue of whether appellant was in the
performance of duty at the time of the altercation.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of his
claim. If a claimant fails to submit relevant evidence not previously of record, or advance legal
contentions of facts not previously considered, OWCP has the discretion to refuse to reopen a
case for further consideration of the merits.17 The statements from the coworkers were
previously of record and would not be sufficient to warrant a review of the merits. As for the
new argument about the bias of the injury compensation specialist, the Board finds that argument
irrelevant to the underlying issue and also insufficient to warrant a review of the merits.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP
or submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has failed to establish his burden of proof to establish an
emotion condition causally related to employment factors. The Board further finds that OWCP
properly denied appellant’s request for review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

17

Pamela I. Holmes, 49 ECAB 581, 586 (1998).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 21, 2014 and September 23, 2013 are affirmed.18
Issued: September 29, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective December 27, 2014.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION
HEADQUARTERS, Atlanta, GA, Employer
__________________________________________

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

Docket No. 09-2133
Issued: April 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On August 20, 2009 appellant filed a timely appeal from a July 30, 2009 merit decision
of the Office of Workers’ Compensation Programs denying him a schedule award for hearing
loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this schedule award claim.
ISSUE
The issue is whether appellant established that he sustained a ratable hearing loss
entitling him to a schedule award.
FACTUAL HISTORY
On March 31, 2009 appellant, a 58-year-old special agent, filed an occupational disease
claim (Form CA-2) for bilateral hearing loss that he attributed to performance of his employment
duties as a fire arms instructor, sniper and special agent bomb technician. He first realized his
condition and that it was caused by his federal employment on April 1, 1985.

On April 20, 1988 Dr. A. Gregory Jameson, a Board-certified internist, reported that
auditory testing revealed “decreased auditory acuity.” In a June 26, 1989 note, Dr. William
Levine, an internist, reported that auditory testing revealed “diminished hearing in both ears
(since 1984).” On April 26, 1993 Dr. Anthony Ditullio, an internist, reported appellant’s hearing
was “normal.”
Appellant submitted results from diagnostic tests, reports concerning annual physical and
other examinations conducted between 1984 and 2009, and a June 18, 2002 note in which
Dr. E. Darryl Walker, Board-certified in occupational medicine, reported that an audiogram
revealed the presence of moderate bilateral hearing loss. Several of these historical medical
records contained results from hearing tests but lacked the original audiograms. Appellant also
submitted results from historical audiograms. In a June 4, 2004 note, Dr. David Greenwald, an
orthopedist, reported that an audiogram revealed noise-induced hearing loss.
On July 12, 2006 Dr. Amanda Sahai, Board-certified in family medicine, reported that
results from an audiogram were “abnormal.”
Appellant submitted supplemental statements, dated March 26, 2009, documenting his
employment history and describing how his employment duties caused his hearing loss.
The Office referred appellant, together with a statement of accepted facts, for evaluation
by Dr. Joel Alexander, an otolaryngologist.
On June 23, 2009 Dr. Alexander reviewed appellant’s history of injury, presented
findings on examination and diagnosed bilateral sensorineural hearing loss. He opined that
appellant’s hearing loss exceeded that normally associated with presbycusis and that workplace
noise exposure was sufficient to produce appellant’s hearing loss. An audiogram performed
June 23, 2009 reflected testing at frequency levels of 500, 1,000, 2,000 and 3,000 hertz (Hz) and
revealed hearing losses in appellant’s right ear of 5, 5, 5 and 50 respectively and 10, 5, 10 and 40
on the left.
The district medical adviser reviewed Dr. Alexander’s report and concluded that
appellant’s hearing loss was not ratable.
By decision dated July 30, 2009, the Office accepted appellant’s claim for noise-induced
hearing loss but, finding that his hearing loss was not ratable, concluded that he was not entitled
to a schedule award for his hearing loss.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
1

The Act provides that, for complete or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).

2

percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001) as the appropriate standard for evaluating schedule losses.2 Effective February 1,
2001, schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each frequency are
added up and averaged.4 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.7
ANALYSIS
On appeal, appellant disputes the Office’s findings and determination of his hearing loss.
The Office medical adviser applied the Office’s standardized procedures to the June 23,
2009 audiogram obtained by Dr. Alexander. According to the Office’s standardized procedures,
testing at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed hearing losses in
appellant’s right ear of 5, 5, 5 and 50 respectively. These totaled 65 decibels which, when
divided by 4, produced an average hearing loss of 16.25. The average of 16.25 decibels when
reduced by 25 decibels (the first 25 decibels are discounted as discussed above), equals 0 and
that, when multiplied by the established factor of 1.5 produced a 0 percent hearing loss in
appellant’s right ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed
hearing losses in the left ear of 10, 5, 10 and 40. These totaled 65 which when divided by 4,
produced an average hearing loss of 16.25 decibels. The average hearing loss of 16.25 decibels
when reduced by 25 decibels (the first 25 decibels are discounted as discussed above) equals 0
which, when multiplied by the established factor of 1.5 produced a 0 percent hearing loss in
appellant’s left ear.

2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

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The district medical adviser then proceeded to calculate appellant’s binaural hearing loss.
The zero percent hearing loss on the left, when multiplied by five, yielded a product of zero
percent. The zero percent loss was then added to the zero percent loss in appellant’s right ear to
obtain a total of zero percent which, when divided by six yields a zero percent binaural hearing
impairment. Thus appellant’s hearing loss is not ratable and he is not entitled to a schedule
award.
Although appellant submitted reports containing results from historical audiograms as
well as other medical evidence demonstrating the presence of varying degrees of hearing loss,
they are insufficient to satisfy appellant’s burden of proof as they do not comply with the
requirements set forth by the Office because, for example, they lack speech testing and bone
conduction scores and were not prepared or certified as accurate by “physician” as defined by the
Act.8 The Board has held that if an audiogram is prepared by an audiologist its accuracy must be
certified by a physician before it can be used to determine the percentage of hearing loss.9 It is
appellant’s burden to submit a properly prepared and certified audiogram to the Office.10 The
Office is not required to rely on this evidence in determining the degree of appellant’s hearing
loss because it does not constitute competent medical evidence and, therefore, is insufficient to
satisfy appellant’s burden of proof.
Therefore, although appellant’s claim for hearing loss was accepted and he is entitled to
medical benefits related to this loss, his hearing loss is not now ratable under the Act and thus,
appellant is not entitled to a schedule award.
CONCLUSION
The Board finds appellant has not established that he sustained a ratable hearing loss
entitling him to a schedule award.

8

Robert E. Cullison, 55 ECAB 570 (2004); Joshua A. Holmes, 42 ECAB 231 (1990).

9

Joshua A. Holmes, supra note 8.

10

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Tulsa, OK, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1528
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a July 15, 2020
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.

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 her burden of proof to establish that she sustained
an injury in the performance of duty on March 10, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2017 appellant, then a 60-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, at approximately 12:00 p.m. on that date, her
knees and wrists were scratched, bloodied and swollen when she tripped on uneven pavement
when she was walking to work while in the performance of duty. A coworker, S.G., provided a
statement on the Form CA-1 noting that while walking to work on March 10, 2017 she saw
appellant lying on the ground under the covered sidewalk on B side parking. Appellant informed
S.G. that she tripped on the sidewalk. On the reverse side of the claim form, the employing
establishment controverted the claim contending that appellant was not in the performance of duty
when she was injured, as the incident occurred before the start of her work shift, she was off
premises and was not engaging in official duties. It noted that her work schedule was 12:00 p.m.
to 8:30 p.m., Tuesday through Saturday. Appellant did not stop work.
In a March 20, 2017 development letter, OWCP advised appellant of the deficiencies of
her claim. It informed her of the type of factual and medical evidence needed to establish her
claim and provided her with a factual questionnaire for her completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide information
regarding the location and time of appellant’s injury. It afforded both parties 30 days to submit
the requested information.4
OWCP received medical evidence, including treatment notes dated March 13, 2017 from
Dr. Homer Hardy, an osteopath, diagnosing contusions of both knees.
On March 23, 2017 the employing establishment controverted appellant’s claim, asserting
that appellant’s injury occurred at 11:56 a.m. on March 10, 2017, but that her work shift did not
3

Docket No. 18-0617 (issued February 13, 2019).

4
Appellant submitted numerous reports to the record dating from March 10, 2017. On April 7 and 25, and June 26,
2017 Dr. Robert Coye, a Board-certified internist, diagnosed right medial knee pain. On May 9 and 30, June 1 and 6,
and July 18, 2017 Dr. James D. Cash, a Board-certified orthopedic surgeon, diagnosed bilateral knee contusions. On
June 2, 2017 Dr. Kelly Lindauer, a Board-certified diagnostic radiologist, reviewed appellant’s magnetic resonance
imaging (MRI) scan and found tear of the medial meniscus, chondromalacia, and effusion. Dr. Thomas Kern, a Boardcertified internist, examined appellant on July 31, 2017 and diagnosed derangement of medial meniscus of both knees.
Dr. Seth Migdalski, a psychiatrist, examined appellant on October 30, 2017 for emotional conditions. Appellant also
submitted numerous reports from Timothy Marlow, Chad Perkins, Dianne Briscoe, and Eve Fitzpatrick, physician
assistants, as well as notes from Whitney Ellsworth, a physical therapist. See M.M., Docket No. 17-1641 (issued
February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018).

2

begin until 12:00 p.m. It noted that she had not clocked in for duty and was not in any work
location when the injury occurred. The employing establishment reported that it did not own,
lease, or maintain the area where appellant’s injury occurred. It further noted that it did not direct
her to park her car in any of the various public parking lots that surrounded her duty station. J.M.,
an AirServ supervisor, witnessed appellant’s fall and described the location as occurring on the
sidewalk coming up from B side parking.
By decision dated April 25, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence submitted was insufficient to establish that she was injured in the performance
of duty. It found that she was not reasonably fulfilling the duties of her employment or doing
something incidental thereto at the time of her injury, that she had not begun her tour of duty, and
was walking on a public sidewalk toward the employing establishment. OWCP noted that under
FECA, an employee who is injured off premises while commuting to work is not in the course of
employment.
On May 4, 2017 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an e-mail to counsel dated July 16, 2017, appellant reported that she fell on the sidewalk
between the employee parking lot and the employing establishment office. She noted that she paid
for parking with the Green Option Commuter Card (For Federal Government Transit Subsidy Use
Only). Appellant’s card allotted $240.00 and she paid parking costs of $135.00 every six months.
She indicated that she would fax counsel a copy of the employer-paid parking receipt from
July 14, 2017.
In a letter dated July 31, 2017, counsel indicated that he was providing OWCP with medical
records, physical therapy notes, and a “copy of the receipt and the subsidized public transportation
pass paid for by the employing agency.”
Appellant testified during an oral hearing on October 6, 2017 before an OWCP hearing
representative. She alleged that she was required to wear a uniform for her position, but that the
employing establishment regulated the activities she could perform in uniform. Appellant testified
that the employing establishment rented a portion of the airport parking lot for its employees and
assigned them a place to park. The employing establishment required employees to go straight
from the parking lot to the employing establishment without diversion. Appellant asserted that her
parking was fully paid for by the employing establishment, and that she had to park in an assigned
area otherwise her car would be booted. She noted that the employing establishment provided her
with a commuter payment card and a placard for her car. Appellant testified that there was only
one sidewalk from the parking lot to her duty station and that no other route was available. She
noted that the parking area in question was encircled by a six-foot fence and that she had a badge
for that parking area. Appellant again alleged that she could not enter the employing establishment
from another parking location. She noted that other airport employees parked in the fenced lot
including pilots and stewardesses. Counsel contended that it was not plausible that the employing
establishment was not in control of the area as they paid for parking and that there was only one
entrance that appellant could utilize to get to her duty station.

3

On December 5, 2017 the employing establishment terminated appellant’s employment. It
noted that her appointment was subject to completion of a two-year trial period. The termination
was noted to promote the efficiency of the service and was primarily based on her extensive use
of leave.
By decision dated December 18, 2017, OWCP’s hearing representative found that
appellant was injured on the sidewalk between the off-premises parking lot and the worksite. She
noted that there was no evidence that the employing establishment controlled or maintained the
area where the fall occurred. OWCP’s hearing representative determined that the facts did not
establish an exception to the premises rule and that appellant’s injury did not arise out of and in
the course of her federal employment.
Appellant, through counsel, appealed to the Board. In its February 13, 2019 decision, 5 the
Board set aside the December 18, 2017 decision and found that the case was not in posture for
decision as OWCP had not properly developed the factual evidence to establish whether the
secured parking facility and the covered sidewalk were in control of the employing establishment
such that appellant was on the premises when injured. The Board remanded the case for further
development and a de novo decision.
In an April 2, 2019 development letter, OWCP requested that the employing establishment
provide a diagram demonstrating the boundaries of its premises and the location of appellant’s
injury site in relation to those premises.
On April 16, 2019 the employing establishment submitted several photographs with
notations identifying parking lot B, the sidewalk maintained by the Tulsa Airport Authority,
identified as the general area where appellant fell, and the employees’ entrance.
In an April 24, 2019 e-mail, OWCP requested that the employing establishment respond to
the remainder of the questions posed by the Board. In response, the employing establishment
reported that appellant was not required to park in parking lot B. It further noted that there were
various locations where she could have chosen to park, as parking lot A and B were open to all
employees that worked at the airport and maintained by American Parking. The employing
establishment further noted that there was an additional American Parking lot, and a lot maintained
by Fine Parking. It reported that parking lot B was opened to all employees of the airport, not just
its employees; however, it was not open to the general traveling public. The employing
establishment noted that it provided a parking subsidy to appellant, not a specific parking space,
and that she could have chosen not to accept it. It reported that she was not assigned to parking
lot B, that it did not assign or provide parking, but that it provided an optional subsidy to help to
pay for parking. The employing establishment denied responsibility for monitoring or inspecting
the parking lots for security purposes and added that it did not pay a third party for those services.
It reported that the covered sidewalk where appellant fell was the normal route that she would have
traveled after parking in lot B.
By decision dated May 16, 2019, OWCP denied appellant’s traumatic injury claim finding
that her injury did not occur in the performance of duty as she was not on the employing
5

Supra note 2.

4

establishment premises at the time her injury occurred. On May 21, 2019 appellant, through
counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review, which was held on August 27, 2019.
Appellant testified before an OWCP hearing representative and asserted that the general
public did not park in lot B. She further asserted that the general public did not use the sidewalk
where she fell, that it was the only way to get from parking lot B to the building, and that she paid
more to park in lot B as it was closer to her duty station than lot A. Appellant reported that there
was no mass public transit to the airport, only taxis or other automobile-based modes of transport.
By decision dated October 3, 2019, OWCP’s hearing representative vacated the May 16,
2019 decision. She remanded the case and directed OWCP to ascertain whether the employing
establishment was accessible to employees via public transportation and whether any employees,
in fact, traveled to work using public transportation.
On October 17, 2019 appellant provided a link to the Tulsa Transit System and noted that
it did not list the airport as a destination.
In a letter dated November 15, 2019, the employing establishment reported that the Tulsa
Transit System provided public transportation to and from the airport. It was located curbside
outside of baggage claim. The employing establishment noted that only one employee had utilized
this form of transportation. It also noted that taxi, other private vehicle transport, and airport
shuttle services were provided by the parking companies.
By decision dated December 31, 2019, OWCP denied appellant’s claim finding that she
was not injured in the performance of duty. On January 6, 2020 appellant, through counsel,
requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review, which
was held on May 14, 2020.
Appellant testified before an OWCP hearing representative and asserted that at the time of
her injury on March 10, 2017 there was no public transportation available to the employing
establishment due to construction on the airport premises. Ap pellant alleged that she had no choice
but to park in a lot at the airport. She noted that Tulsa had instituted a new bus service in 2019,
the Aero bus. Appellant testified that she was not currently working due to her knee conditions
and had undergone surgery on one knee.
By decision dated July 15, 2020, OWCP’s hearing representative found that there were
public parking lots available to appellant, that she chose to park in lot B, even though it was more
expensive, and that the employing establishment did not contract for parking lot B, maintain it,
police it, or otherwise demonstrate any control over parking lot B or the walkway where appellant
fell. He noted that were other means of ingress to the work facility, particularly those routes from
lot A, such that the walkway were appellant fell was not the only access to work. OWCP’s hearing
representative found that appellant was not on the premises when her March 10, 2017 injury
occurred and was, therefore, not in the performance of duty.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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, 6 that an injury was sustained 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. 7 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. 8
The phrase “sustained while in the performance of duty”9 Has been interpreted by the
Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”10 To arise in the course of employment,11 in
general, an injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in the master’s business; (2) at a place where he or she may reasonably be expected to be
in connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
her employment or engaged in doing something incidental thereto.12
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable13 but if the injury occurs off the premises, it is not compensable,
subject to certain exceptions. The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have

6

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Kathryn Haggerty, 45 ECAB
383, 388 (1994); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

See S.B., supra note 6; Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

5 U.S.C. § 8102(a); S.S., Docket No. 20-1349 (issued February 16, 2021); J.K., Docket No. 17-0756 (issued
July 11, 2018).
10

This construction makes the statute actively effective in those situations generally recognized as properly
within the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
11

See L.P., Docket No. 17-1031 (issued January 5, 2018).

12

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

L.P., supra note 11; Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general
rule of workers’ compensation law in circumstances where the employee was on an authorized break. See Eileen R.
Gibbons, 52 ECAB 209 (2001).

6

ownership and control of the place of injury, the place may nevertheless still be considered part of
the premises. 14
The Board has also held that the factors, which determine whether a parking area used by
employees may be considered part of the employing establishment’s premises include whether the
employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the area were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no authorized cars were parked in the area,
whether parking was provided without cost to the employees, whether the public wa s permitted to
use the area, and whether other parking was available to the employees. Mere use of a parking
facility alone is insufficient to bring the parking area within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees. 15
As noted above, there are exceptions to the premises rule, and one is the proximity
exception, which allows constructive extension of the premises to those hazardous conditions,
which are proximate to the premises and may, therefore, be considered as hazards of the
employment.16 Underlying the proximity exception is the principle that course of employment
should extend to an injury that occurred at a point where the employee was within the range of
dangers associated with the employment. 17 The most common ground of extension is that the offpremises point at which the injury occurred lies on the only route, or at least on the normal route,
which employees must traverse to reach the premises, and that, therefore, the special hazards of
that route become the hazards of the employment. 18 This exception contains two components.
The first is the presence of a special hazard at the particular off-premises point. The second is the
close association of the access route with the premises, so far as going and coming are concerned.19

14

S.S., supra note 9; C.L., Docket No. 19-1985 (issued May 12, 2020); Wilmar Lewis Prescott, 22 ECAB 318,
321 (1971).
15

Federal (FECA) Procedure Manual, Part 2 - Claims, Performance of Duty, Chapter 2.804.(4)(f) (August 1992);
C.L., id.; R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997); Rosa M.
Thomas-Hunter, 2 ECAB 500 (1991); see also Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB
487 (1982); R.M., Docket No. 07-1066 (issued February 6, 2009).
16

D.K., Docket No. 11-1029 (issued February 1, 2012).

17

See J.K., supra note 9; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

18

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3). See also J.K, supra note 9; R.O., Docket
No. 08-2088 (issued May 18, 2009).
19

Id. at § 13.01(3)(b); L.P., supra note 11; Wilmar Lewis Prescott, supra note 14. Another exception to the rule is
the proximity rule, which the Board has defined by as where, under special circumstances, the industrial premises are
constructively extended to hazardous conditions, which are proximately located to the premises and may, therefore,
be considered as hazards of the employing establishment. The main consideration in applying the rule is whether the
conditions giving rise to the injury are causally connected to the employment. See William L. McKenney, 31 ECAB
861 (1980).

7

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 18, 2017 merit decision because
the Board considered that evidence in its February 13, 2019 decision. Findings made in prior
Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.20
The Board has held that the premises of the employer are generally extended when an
employee must travel a public thoroughfare to traverse between two premises of the employer. 21
In order to determine whether the covered sidewalk between the employing establishment and
parking lot B, where appellant’s March 10, 2017 fall occurred, should be considered part of the
employing establishment’s premises, the Board must first consider the factors necessary to
determine whether parking lot B was under sufficient control of the employing establishment to
constitute its premises.22 As noted above, in determining whether a parking lot or garage should
be considered part of the employing establishment’s premises, the Board must consider such
factors as whether the employing establishment contracted for its exclusive use by its employees,
whether the employing establishment assigned parking spaces, whether the parking area was
checked to see that no unauthorized cars were parked in the parking area, whether the public was
permitted to use the parking area, whether parking was provided without cost to the employees,
and whether other parking was available to the employees. 23
The Board finds that appellant has not established that parking lot B, was exclusively or
principally used by employees of the employing establishment. Appellant and the employing
establishment have agreed that parking lot B was open to airport employees as well as those of the
employing establishment. The parties agree that the employing establishment did not assign the
space or the lot in which appellant parked. Both parties also agree that appellant could have parked
in lot A or B or in other public parking locations at the airport. Appellant chose to park in lot B as
it was closest to the employing establishment entrance and paid a premium above the parking
subsidy allotment provided to her to park in that lot.24 While she noted that parking lot B was the

20

See B.R., Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998); see
also 20 C.F.R. § 501.6(d).
21

R.B., Docket No. 11-1320 (issued September 5, 2012).

22

R.E., Docket No. 18-0515 (issued February 18, 2020).

23

C.L., supra note 14.

24

C.B., Docket No. 12-1849 (issued January 13, 2014).

8

nearest option for all employees, she has not provided any relevant evidence to establish that she
was required to park in that parking lot or assigned specific parking space. 25
As parking lot B was not a part of the employing establishment premises, and as app ellant
was not required to park there, the off-premises point at which the injury occurred, the covered
sidewalk, does not lie on the only route or on the normal route, which employees must traverse to
reach the premises, such that the special hazards of that route become the hazards of the
employment. 26 The record reveals that there were multiple places that appellant could park on the
airport premises and, therefore, multiple ways that she could have accessed her workplace. She
did not establish within the meaning of FECA, that there were hazardous conditions proximately
located to the premises, which would establish a constructive extension.27 Rather appellant’s act
of tripping on uneven pavement was a hazard common to all travelers on the sidewalk and was not
causally related to her employment. 28 Thus, her injury constitutes an ordinary nonemployment
hazard of the journey itself, shared by all travelers. 29
As the record fails to support the application of an exception to the off -premises rule, the
Board finds that appellant did not meet her burden of proof to establish that she sustained an injury
in the performance of duty on March 10, 2017.30
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 met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.

25

J.B., Docket No. 17-0378 (issued December 22, 2017).

26

See F.S., Docket No. 09-1573(issued April 6, 2010) (finding that although the crosswalk where the claimant was
injured may have been the normal route to reach the employing establishment from the short-term lot, the claimant
was not required to park in the short-term lot and, by extension, was not required to use the crosswalk).
27

D.B., Docket No. 13-0510 (issued June 10, 2013).

28

F.S., supra note 26.

29

Id.

30

See Jon Louis Van Alstine, 56 ECAB 136 (2004). See also Linda S. Jackson, 49 ECAB 486 (1998).

9

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10