United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0830
Issued: January 15, 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 March 3, 2015 appellant, through counsel, filed a timely appeal from a December 12,
2014 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 an injury causally
related to a November 26, 2011 employment incident.
FACTUAL HISTORY
On November 27, 2011 appellant, then a 53-year-old Express Mail clerk, filed a
traumatic injury claim (Form CA-1) alleging that on November 26, 2011 while in the
1

5 U.S.C. § 8101 et seq.

performance of duty she was carrying heavy bags and pulling them into a postal container when
she felt pain in her left leg and hip.
Appellant submitted several reports dating from November 27 to December 27, 2011
from Dr. Demetrios Mikelis, a physiatrist. In his November 27, 2011 report, Dr. Mikelis noted
that appellant was lifting bags and felt a sharp pain in her left leg. He diagnosed strain and
sprain of left quadriceps and reported that she could not return to work. In the November 29,
2011 report, Dr. Mikelis noted that appellant was lifting heavy bags into a postal container and
felt a sharp pain in her left leg radiating to her left hip. He diagnosed left hip pain, left thigh
pain, and ruled out muscle strain. Dr. Mikelis checked a box marked “yes” as to whether the
condition was caused or aggravated by an employment activity. For period of disability, he
filled in “undetermined.” Likewise, in his December 27, 2011 report, Dr. Mikelis noted the
history above, and diagnosed left hip and left thigh pain. He again checked a box marked “yes”
as to whether the condition was caused or aggravated by an employment activity. Dr. Mikelis
noted that appellant was experiencing lower back pain and was unable to work from
November 29 to December 27, 2011. He opined that, if the history was true, then her conditions
were caused by her work injury.
By letter dated February 3, 2012, OWCP informed appellant of the type of evidence
needed to support her claim.
In reports dated December 27, 2011 and January 31, 2012, Dr. Mikelis noted that
appellant had traumatic lumbar spine pain syndrome, left hip pain, rule out sprain and strain, left
thigh pain, rule out muscle strain. He noted that x-rays of the lumbosacral spine revealed
multilevel degenerative changes, and x-rays of the left hip revealed arthritic changes, showing
possible old trauma.
By decision dated March 14, 2012, OWCP denied appellant’s claim. It found that the
medical evidence did not establish a firm medical diagnosis in connection with the
November 26, 2011 employment incident.
On March 29, 2012 appellant requested a review of the written record by an OWCP
hearing representative. OWCP received statements from appellant dated March 29 and
May 14, 2012. Appellant argued that she had worked 23 years for the employing establishment
and sustained her injuries at work lifting heavy bags on hard floors. She noted that her injury
began on November 26, 2011 while lifting 30- to 50-pound bags and she felt a sharp pain in her
left leg radiating straight to her left hip. Appellant indicated that she could hardly walk, could
not sit for a long time, used a cane, and needed physical therapy.
Appellant also submitted additional medical reports from Dr. Mikelis dating from
January 31 to April 24, 2012. In his reports, Dr. Mikelis continued to indicate that appellant was
status post work-related accident who had returned for a follow-up and remained totally disabled
due to left hip, thigh, and lumbar spine pain. He noted arthritic changes on a magnetic resonance
imaging (MRI) scan. Dr. Mikelis checked a box marked “yes’ as to whether the condition was
caused or aggravated by an employment activity and recommended physical therapy. OWCP
also received copies of previously submitted reports.

2

A March 12, 2012 MRI scan of the left hip read by Dr. Robert D. Solomon, a Boardcertified diagnostic radiologist, revealed arthritic changes and no muscular soft tissue mass and
no evidence of a strain.
By decision dated July 11, 2012, an OWCP hearing representative affirmed that
March 14, 2012 decision.
By letter dated March 13, 2013, counsel for appellant requested reconsideration. On
March 19, 2013 OWCP received a December 7, 2011 report in which Dr. Mikelis noted
appellant’s history, diagnosed traumatic sprain of the left hip, left thigh pain, bronchial asthma,
by history, under treatment, and allergies to Penicillin. Dr. Mikelis opined that, with a degree of
medical certainty, the work incident was the competent producing cause of appellant’s injuries
and that there was a causal relationship between the accident and the injuries. He further opined
that she was partially disabled from her employment as a postal clerk. OWCP also received
copies of previously submitted reports.
By decision dated June 14, 2013, OWCP denied the claim finding that appellant had
failed to establish a causal relationship between the employment incident of November 26, 2011
and a firm medical diagnosis.
On October 21 and November 17, 2013 appellant requested reconsideration. In a July 11,
2013 report, Dr. Andrew Brown, a Board-certified internist, noted that appellant had reported
that on November 26, 2011 she was lifting 30- to 50-pound bags into a postal container when she
felt a sharp pain in her left hip and thigh. Thereafter, appellant was limping and unable to walk.
She related that her pain was a 9 on a scale of 1 to 10 and was constant. Appellant indicated that
it had increased since the accident and affected her sleep. The pain radiated down to the left
knee and then to the foot. Appellant reported symptoms of buckling and giving way. She
related that the pain was worsened by standing, sitting, walking, and bending. It limited her
ability to lift, stand, carry, walk, run, climb stairs, and exercise. The pain was reduced by lying
down. Appellant reported that she needed assistance with cleaning, cooking, and shopping.
Dr. Brown noted that appellant’s mobility on and off the examining table was moderately to
maximally impaired. Appellant was able to squat fully and rise without assistance. She used a
cane to ambulate. Going from a sitting to standing position was difficult. Appellant was able to
dress slowly with pain. Her gait was slow, guarded, and deliberate. Dr. Brown found that heel
to toe walking was absent secondary to pain. Appellant’s tandem gait was normal. Dr. Brown
opined that “I feel that there is a direct causal relationship between the accident described and the
patient’s current injuries. The patient’s symptoms and clinical findings are consistent with
musculoskeletal injuries to the described areas.” Dr. Brown diagnosed a left hip strain, with
trochanteric bursitis, iliotibial band syndrome, and aggravation of degenerative joint disease. In
a separate July 11, 2013 report, he found decreased motion and muscle strength.
In a September 12, 2013 report, Dr. Brown again noted appellant’s history of injury and
diagnosed a strain of the left hip, with trochanteric bursitis, iliotibial band syndrome, and
aggravation of degenerative joint disease. He opined that the incident described by appellant
was “a competent producing cause for the patient’s clinical presentation.” Dr. Brown noted that
appellant’s complaints were consistent with the history of injury and objective findings.

3

By decision dated February 19, 2014, OWCP denied modification of its prior decision.
On May 15, 2014 counsel for appellant requested reconsideration. In support of the
request, appellant submitted an April 3, 2014 report from Dr. Brown. Dr. Brown explained that
appellant reported left leg pain which she rated as a 10 out of 10. Appellant noted being unable
to take public transportation and related limitations in her ability to ambulate, stand, lift, carry,
kneel, squat, negotiate stairs and ladders, and perform repetitive-type activities with the left leg.
She reported that her sleep was disrupted and difficulty maintaining one position. Dr. Brown
noted appellant’s past medical history that included hypertension, asthma, bronchitis, and “fatty
liver.” On examination, appellant was in obvious pain with significantly impaired mobility.
Dr. Brown determined that she had difficulty rising from a sitting to a standing position as well
as getting on and off the examining table. He noted that appellant had an antalgic gait which
favored the left side and she ambulated with a cane. Dr. Brown examined her range of motion
and provided findings which included pain with movement. He also found that palpation
revealed tenderness along the iliotibial band, over the trochanteric bursa, and in the anterior
aspect of the hip. Dr. Brown conducted muscle, grip, and vascular examination which revealed
no acute pathology for the left leg. He diagnosed a strain of the left hip, with trochanteric
bursitis, iliotibial band syndrome, aggravation of degenerative joint disease, and possible lateral
femoral cutaneous nerve (LFCN) compression. Dr. Brown opined that the incident that appellant
described was a competent producing cause of her clinical presentation. He explained that her
complaints are consistent with appellant’s history of injury and her objective findings.
Dr. Brown opined that appellant was totally disabled. OWCP also received copies of previous
reports.
By decision dated July 8, 2014, OWCP denied modification of its prior decision.
On September 30, 2014 counsel for appellant requested reconsideration. He submitted
new medical evidence and argued that appellant established causal relationship.
The medical evidence included a July 11, 2014 report from Dr. Brown. Dr. Brown
indicated that appellant was considering a possible left total hip replacement with another
physician. Appellant reported residual left hip pain and greater radiation into the left leg along
the lateral aspect to the ankle. Dr. Brown noted accounts of numbness and tingling and
functional limitations as noted in his prior reports. He advised that her past surgical history
included right and left knee surgery. Dr. Brown examined appellant and noted that she was in
obvious pain, had impaired mobility, and exhibited difficulty rising from a seated to a standing
position and from the examining table. He found that she had an antalgic gait favoring the left
side and she ambulated with a cane. Dr. Brown provided range of motion measurements and
found pain with movement, palpation that revealed tenderness over the iliotibial band, over the
trochanteric bursa, and in the anterior aspect of the hip. He diagnosed a left hip strain, with
trochanteric bursitis, iliotibial band syndrome, and aggravation of degenerative joint disease.
Dr. Brown opined that the incident that appellant described was a competent producing cause for
her clinical presentation. He advised that her complaints were consistent with the history of
injury. Dr. Brown noted the history of injury was consistent with the objective findings. He
opined that appellant was totally disabled.

4

In a July 14, 2014 attending physician’s report, Dr. Brown checked a box “yes” to
indicate that appellant’s condition was employment related. He indicated the period of disability
began on November 26, 2011 and was ongoing.
On October 17, 2014 OWCP received an undated statement from appellant. Appellant
noted that on November 26, 2011 she had an injury to her left hip while in the performance of
duty. She argued that it was almost three years and she “had not gotten any better.”
In a decision dated December 12, 2014, OWCP denied modification of its prior decision.
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,2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon 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 must first be determined whether a “fact of injury” has been established.
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 sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.7

2

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

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

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

6

Id.

7

I.J., 59 ECAB 408 (2008).

5

ANALYSIS
Appellant alleged that she sustained a traumatic left leg and hip injury while carrying
heavy bags and pulling them at work on November 26, 2011. OWCP accepted the incident but
denied the claim because the medical evidence was insufficient to establish that the employment
incident caused an injury. The medical reports of record do not establish that the carrying heavy
bags and pulling them at work caused a personal injury on November 26, 2011.
Appellant submitted several reports from Dr. Mikelis. In his December 7, 2011 report,
Dr. Mikelis noted appellant’s history and offered diagnoses that included traumatic sprain of the
left hip and left thigh pain. He opined that, to a degree of medical certainty, the work incident
was the competent producing cause of appellant’s injuries and that there was a causal
relationship between the accident and the diagnosed condition. However, Dr. Mikelis did not
explain the medical reasoning, or provide rationale, to support his opinion on causal
relationship.8 On January 31, 2012 he noted findings, including x-ray findings of left hip
arthritic changes and possible old trauma. Dr. Mikelis opined that “if” appellant’s history was
true, then her conditions were caused by her employment injury. The Board notes that this
opinion is speculative in nature.9 Dr. Mikelis did not explain how a specific activity at work on
November 26, 2011 caused or aggravated an injury. The need for reasoning is especially
important as the evidence indicates that diagnostic tests of the left hip showed preexisting
arthritis.
Reports from Dr. Mikelis also included several attending physician’s reports in which he
supported causal relationship simply by checking a box marked “yes” that appellant’s condition
was work related. However, the Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” on a medical form report without further explanation
or rationale is of little probative value.10 Dr. Mikelis did not explain the medical reasoning
providing the basis for his opinion. In his November 27, 2011 report, he noted that appellant was
lifting bags and felt a sharp pain in her left leg. Although, Dr. Mikelis diagnosed a strain, he did
not offer any reasoning to support how the work activity caused or contributed to the strain.
The record contains several reports from Dr. Brown. They include reports dated July 11
and September 12, 2013 in which he noted appellant’s history and findings on examination.
Dr. Brown diagnosed a left hip strain, with trochanteric bursitis, iliotibial band syndrome, and
aggravation of degenerative joint disease. Dr. Brown opined that the incident described by
appellant was “a competent producing cause for the patient’s clinical presentation” and noted
that appellant’s complaints were consistent with the history of injury and objective findings. He
opined that “I feel that there is a direct causal relationship between the accident described and the
8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
10

Alberta S. Williamson, 47 ECAB 569 (1996).

6

patient’s current injuries. The patient’s symptoms and clinical findings are consistent with
musculoskeletal injuries to the described areas.” In reports dated April 3 and July 11, 2014,
Dr. Brown also opined that the work incident was a competent producing cause of appellant’s
condition. He explained that her complaints are consistent with her history of injury and her
objective findings. Dr. Brown opined that appellant was totally disabled. In a July 14, 2014
form report, he checked a box marked “yes” to indicate that appellant’s condition was
employment related. However, Dr. Brown has failed to explain the medical processes by which
this particular employment incident caused appellant’s condition. He did not explain how
carrying heavy bags and pushing and pulling them at work caused or contributed to the
diagnosed conditions. Without sufficient reasoning to support the conclusion, these reports are
insufficient to meet appellant’s burden of proof.11 Moreover, the July 14, 2014 form report is of
limited probative value as it provides support for causal relationship by checking a box “yes”
without further reasoning or rationale.12
Other evidence provided by appellant is insufficient to establish the claim as it does not
address the crucial issue of the causal relationship between appellant’s hip and back conditions
and her federal employment.13
An award of compensation may not be based on surmise, conjecture, or speculation.14 As
there is no reasoned medical evidence in the record explaining how the accepted employment
incident caused or aggravated a medically diagnosed condition, appellant has not met her burden
of proof.
On appeal, counsel for appellant argues that the submitted medical additional evidence
was sufficient to establish her claim. However, as found above, the Board has found that
evidence lacking.
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 failed to meet her burden of proof to establish an injury
causally related to a November 26, 2011 employment incident.

11

See supra note 8.

12

See supra note 10.

13

Jaja K. Asaramo, 55 ECAB 200 (2004) (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.
14

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

7

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 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

8


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

)
)
)
)
)
)
)
)

Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-203
Issued: September 29, 2009

Case Submitted on the Record

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

JURISDICTION
On October 27, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated September 25, 2008 affirming the denial of her claim
for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an occupational injury in the performance of duty.
FACTUAL HISTORY
On March 23, 2006 appellant, then a 48-year-old manual distribution clerk, filed an
occupational injury claim alleging that she developed sharp pains in her shoulders, chest, back
and right wrist from casing and pulling mail and working in automation areas sorting mail. She
first became aware of her condition on December 10, 2000 and first realized that it was caused
by her work on January 16, 2005. Appellant did not stop work. In a March 23, 2006

supplemental statement, she described the history of injury and the nature of work she
performed. In particular, appellant noted that she began having back, shoulder and chest pain
problems in December 2000 when she was assigned to case and pull mail at automation areas.
She stopped work from July 2000 to February 2002 due to back, shoulder and chest pain. The
employing establishment controverted the claim.
Appellant submitted medical evidence with her claim including a May 29, 2002 report
from Dr. P.R. Chandrasekaran, a Board-certified orthopedic surgeon, who diagnosed bilateral
shoulder impingement syndrome. Dr. Chandrasekaran noted that appellant’s job involved
repetitive motion to the shoulder and that her diagnosed condition was related to her job. On
September 10, 2002 he reiterated his diagnosis of bilateral shoulder impingement syndrome,
which he opined was “definitely due to [appellant’s] job.” Dr. Chandrasekaran also indicated
that radiological findings consisted of degenerative cervical disc disease, degenerative thoracic
disc disease and bilateral shoulder impingement syndrome.
In a December 19, 2002 report, Dr. Young Paik, a Board-certified orthopedic surgeon,
noted that appellant had clinical symptoms of minimal shoulder impingement which was
aggravated by work-related activities. On October 28, 2003 he noted appellant’s complaint of
mid-thoracic and low back pain. Dr. Paik indicated that this condition “may be a cumulative job
injury.” He recommended that appellant report the condition to a supervisor because of a
“possible job-related injury.” On May 18, 2004 Dr. Paik stated that examination showed lumbar
lordosis. He noted early stage degenerative discogenic disease and hypertrophy of the facet
joints. Dr. Paik advised that appellant had multiple joint pain that was aggravated by daily
activities, especially working at the employing establishment.
On April 3, 2006 the Office advised appellant of the factual and medical evidence
necessary to establish her claim. In response, appellant submitted a letter dated April 24, 2006
indicating that she wished to pursue her claim for shoulder, back and chest injury. She described
her nonwork activities and the duration she performed each. Appellant also requested an
extension to submit medical evidence.1
The employing establishment subsequently submitted a February 2, 2006 duty status
report, Form CA-17, from Dr. Richard Sall, Board-certified in occupational medicine, who noted
appellant’s complaint of injury to her right wrist from casing letters. Dr. Sall diagnosed right
wrist strain and left shoulder strain and indicated that appellant’s current complaints were not
related to her injury. He further noted that appellant could return to full duty that day and he
discharged her.
By decision dated May 17, 2006, the Office denied appellant’s claim finding that the
medical evidence was insufficient to establish her claim.
Appellant submitted a July 17, 2006 report from Dr. Ernest Bonner, Jr., an internist, who
noted that she suffered injuries and the onset of pain in her shoulders, back, chest and right wrist
in the course of her employment in December 2000, January 16, 2005 and March 6, 2006.
1

The Board notes that appellant’s statement also indicated that she had a separate claim for a left shoulder
condition that she initiated on January 16, 2005. This claim is not presently before the Board.

2

Dr. Bonner noted her history of employment since 1989 and the types of physical duties that she
performed in her job with the employing establishment. He stated that appellant began noticing
shoulder, low back and chest pain in December 2000 and advised that she had intermittent
exacerbations since that time, including one on January 16, 2005. Dr. Bonner diagnosed
recurrent cervical, thoracic, lumbosacral, chest wall and bilateral shoulder sprain and strain
secondary to cumulative work trauma. He also diagnosed residual fibromyositis at the neck,
upper back and lower back, chest wall and shoulders bilaterally secondary to cumulative work
trauma. Dr. Bonner noted that appellant’s history made it clear that she would have recurrent
injuries to her neck, upper back, lower back, chest wall and shoulder bilaterally. He advised that
“she has suffered such recurrent injuries over the years because of cumulative work trauma and
now experiences residual fibromyositis in those same areas.” Dr. Bonner noted that appellant
had been “off work repeatedly because of her recurrent work injuries, with the most recent such
absence from work occurring from April 13 through June 29, 2006.” He advised reassignment at
the employing establishment to prevent recurrent injury. Dr. Bonner also noted that appellant
experienced residual fibromyositis in those same areas.
Appellant requested reconsideration on March 26, 2007. She also submitted a July 12,
2006 report from Dr. Francisco Garcia, a Board-certified family practitioner, who diagnosed
impingement syndrome and vertebral subluxation. Dr. Garcia provided a list of work restrictions
and advised that appellant could not perform her usual occupation but could perform another line
of work.
By decision dated June 28, 2007, the Office affirmed its May 17, 2006 decision finding
that, although factors of employment were established, the medical evidence was insufficient to
establish causal relationship.
Appellant subsequently submitted a functional capacity evaluation performed by her
physical therapist on April 26, 2007 which indicated that appellant’s reported pain levels
suggested symptom magnification.
In a letter dated June 26, 2008, appellant’s attorney requested reconsideration and
asserted that the current medical evidence established causal relationship. Additional medical
evidence was submitted. A May 24, 2005 magnetic resonance imaging (MRI) scan of the right
shoulder from Dr. Manjul Shah, a radiologist, revealed mild to moderate indentation upon the
supraspinatus tendon by the acromion with no evidence of rotator cuff tear, slight irregularity of
the glenoid labrum and degenerative change at the acromioclavicular joint. On November 6,
2006 Dr. Bryan Winkler, a diagnostic radiologist, found that an MRI scan of the cervical spine
revealed mild degenerative changes of the cervical spine without evidence of significant central
canal or neural foraminal stenosis. He also noted that an MRI scan of the lumbar spine revealed
L4-L5 and L5-S1 broad-based disc protrusions and facet joint hypertrophy resulting in mild
central canal and mild bilateral neural foraminal stenosis.
In an October 9, 2006 report, Dr. Mark Schamblin, a Board-certified orthopedic surgeon,
noted appellant’s complaint of thoracic and lumbar spine pain and right wrist and shoulder pain.
He also noted that appellant reported multiple repetitive motions while at work. Dr. Schamblin
diagnosed rotator cuff calcific tendinitis secondary to chronic impingement syndrome. He also

3

indicated that his findings were “likely resultant from a repetitive use at or above shoulder level.”
Dr. Schamblin advised work restrictions that limited work above the shoulder level.
In a July 3, 2007 report, Dr. Daniel Silver, a Board-certified orthopedic surgeon, noted
appellant’s complaint of bilateral shoulder pain, right wrist pain and left side chest pain. He also
summarized appellant’s injury history and the nature of the treatment sought. In particular,
Dr. Silver noted that appellant’s job sorting mail required repetitive pulling, lifting, carrying and
pushing and pulling using the upper extremities on a repetitive basis. He diagnosed chronic
bilateral shoulder post-traumatic arthritis of the acromioclavicular joint secondary to overuse
with impingement syndrome as well as chronic cervical sprain and strain. Dr. Silver also
diagnosed chronic thoracic sprain and strain, bilateral wrist carpal tunnel syndrome and chronic
sprain and strain. He further diagnosed insomnia, stress and depression. Dr. Silver opined that
appellant “definitely has a work-related injury due to repetitive use of her shoulder, wrist and
neck.” He recommended physical therapy. Appellant submitted several additional reports from
Dr. Silver diagnosing bilateral shoulder impingement syndrome and bilateral wrist carpal tunnel
syndrome and setting forth work restrictions. She also submitted several work capacity
evaluation forms from Dr. Silver who checked a box “yes” indicating that appellant’s condition
was work related.
By decision dated September 25, 2008, the Office denied modification of its June 28,
2007 decision, finding that the additional evidence submitted failed to clearly show how the
conditions were causally related to appellant’s factors of employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 the Act; 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 and/or specific condition for which
compensation is claimed are causally related to the employment injury. 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.2
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
diagnosed condition is causally related to the employment factors identified by the claimant.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
2

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

4

opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.4
ANALYSIS
The record reflects that appellant’s job duties consist of casing and pulling mail and
working in automation areas sorting mail. Therefore the issue is whether appellant has submitted
sufficient medical evidence to establish that factors of her employment injured her shoulders,
chest, back and right wrist. The Board finds that this case is not in posture for a decision.
The Office found that the medical evidence failed to show how the claimed conditions
were causally related to appellant’s employment duties. However, the Board finds that the
medical evidence of record is sufficient to require further development of the case record.
In a July 3, 2007 report, Dr. Silver diagnosed chronic bilateral shoulder post-traumatic
arthritis of the acromioclavicular joint secondary to overuse with impingement syndrome as well
as chronic cervical sprain and strain. He also diagnosed chronic thoracic sprain and strain,
bilateral wrist carpal tunnel syndrome and chronic sprain and strain. Dr. Silver noted that
appellant’s employment required repetitive tasks such as pulling, lifting and carrying. He opined
that appellant “definitely had a work-related injury due to repetitive use of her shoulder, wrist
and neck.” Dr. Silver also submitted several other reports and work capacity evaluation forms
diagnosing bilateral shoulder impingement syndrome and bilateral wrist carpal tunnel syndrome
and finding that appellant’s condition was work related.
Similarly, Dr. Bonner’s report dated July 17, 2006 supports causal relationship. He
diagnosed recurrent cervical, thoracic, lumbosacral, chest wall and bilateral shoulder sprain and
strain as well as residual fibromyositis at the neck, upper back and lower back, chest wall and
shoulders bilaterally, all secondary to cumulative work trauma. Dr. Bonner also indicated that
appellant’s shoulder, back, chest and right wrist injuries were sustained in the course of
employment in December 2000, January 16, 2005 and March 6, 2006. He noted appellant’s
work history and stated that she began having shoulder, low back and chest pain in
December 2000 and had intermittent exacerbations since that time. Dr. Bonner opined that
appellant had recurrent injuries over the years because of cumulative work trauma. He also
opined that appellant was disabled from her “recurrent work injuries, with the most recent such
absence from work occurring from April 13, 2006 through June 29, 2006.”
Additionally, in reports dated May 29 and September 10, 2002, Dr. Chandrasekaran
diagnosed bilateral shoulder impingement syndrome. He opined that appellant’s job involved
repetitive motion to the shoulder and that her diagnosed condition was definitely related to her

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

5

job. Likewise, Drs. Paik and Schamblin diagnosed appellant’s shoulder and back condition and
attributed these conditions to employment activities.
The record contains a February 2, 2006 duty status report from Dr. Sall that disputes
causal relationship. However, unlike the reports of Drs. Silver and Bonner, Dr. Sall’s report does
not indicate a familiarity with appellant’s history and work duties.5 Dr. Sall also did not
otherwise explain the basis of his opinion. Thus, his report is of limited probative value.
While the medical reports supporting causal relationship are not sufficiently rationalized
to meet appellant’s burden of proof in establishing her claim, they provide consistent support for
her claim and raise an inference between appellant’s claimed condition and factors of her
employment which is sufficient to require the Office to further develop the case record. It is well
established that proceedings under the Act are not adversarial in nature and, while the claimant
has the burden of establishing entitlement to compensation, the Office shares responsibility in the
development of the evidence to see that justice is done.6 Accordingly, the Board finds that the
case must be remanded for further development of the medical evidence. On remand the Office
shall obtain a rationalized opinion from an appropriate Board-certified physician as to whether
appellant’s claimed conditions are causally related to her factors of employment. Following this
and such other development as is deemed necessary, the Office shall issue an appropriate merit
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
sustained an occupational injury in the performance of duty.

5

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (medical opinions based upon an incomplete history have little
probative value).
6

P.K., 60 ECAB ___ (Docket No. 08-2551, issued June 2, 2009); see John J. Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 25, 2008 is set aside and the case is remanded for further development
consistent with this decision.
Issued: September 29, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-593
Issued: June 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 27, 2006 appellant timely appealed the July 17, 2006 merit decision of the
Office of Workers’ Compensation Programs, which affirmed a schedule award for permanent
impairment of right upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has more than nine percent impairment of the right upper
extremity.
FACTUAL HISTORY
Appellant, a 53-year-old support services clerk, has an accepted claim for right distal
biceps tear, which occurred June 28, 2004. His ruptured biceps tendon was surgically repaired
on August 16, 2004. The Office paid appellant appropriate wage-loss compensation and he
ultimately resumed his regular duties on or about February 14, 2005.

Appellant filed a claim for a schedule award on October 14, 2005. In a June 3, 2005
report, Dr. David Weiss, a Board-certified orthopedist, found that appellant had 18 percent
impairment of the right upper extremity. The overall rating included separate components for
pain (3 percent), loss of grip strength (10 percent) and motor strength deficit involving the right
biceps (6 percent). Dr. Weiss indicated that appellant reached maximum medical improvement
on June 3, 2005.
The district medical adviser (DMA) reviewed the record and on October 6, 2005, he
concluded that appellant had nine percent impairment of the right upper extremity. The DMA
agreed with Dr. Weiss with respect to appellant’s three percent impairment due to pain.
However, he disagreed with the 10 percent impairment attributed to loss of grip strength. The
DMA stated that it was inappropriate to combine the six percent impairment due to loss of
strength in the right elbow with another strength award, such as loss of grip strength. Therefore,
the DMA only allowed the six percent impairment for muscle weakness about the right elbow.
On January 12, 2006 the Office granted a schedule award for nine percent impairment for
the right upper extremity. The award covered 28.08 weeks from June 3 to December 16, 2005.
Appellant subsequently requested a hearing, which was held May 9, 2006. The Office hearing
representative issued a July 17, 2006 decision affirming the nine percent impairment awarded
January 12, 2006.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act set 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 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 regulation have adopted the American Medical
Association, Guides to the Evaluation of Permanent Impairment 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

1

The Act provides that for a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’
compensation. 5 U.S.C. § 8107(c)(1) (2000).
2

20 C.F.R. § 10.404 (2006).

3

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

2

ANALYSIS
The DMA and Dr. Weiss agreed with respect to appellant’s right upper extremity
impairment attributable to pain (three percent) and loss of strength at the elbow (six percent).4
The Board finds that the combined nine percent impairment for muscle weakness and pain is
appropriate under the A.M.A., Guides (5th ed. 2001).5 However, the case is not in posture for
decision regarding appellant’s entitlement to an additional award for impairment due to loss of
grip strength involving the right hand. The DMA’s opinion is not adequately rationalized with
respect to his decision to disallow the 10 percent impairment for loss of grip strength. He stated
that appellant could be rated based on either muscle strength or grip strength, but not the two
combined. However, the DMA did not provide any support for this conclusion. Moreover, the
mutually exclusive approach applied by the district medical advisor is ostensibly inconsistent
with the A.M.A, Guides approach to rating and combining impairments of various regions of the
upper extremity, such as the hand, wrist, elbow and shoulder regions.6 But even assuming
arguendo there is some validity to the district medical advisor’s rating method, he nonetheless
failed to explain why he chose to rely on the manual muscle testing rating of 6 percent rather
than the higher impairment rating of 10 percent for loss of grip strength. Because of these noted
deficiencies, the case is remanded to the Office for further development of the record, followed
by a de novo decision regarding appellant’s entitlement to a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

4

The only variance among the two opinions regarding weakness about the right elbow was that Dr. Weiss
mistakenly referenced Table 16-15 (Upper Extremity Sensory and/or Motor Deficits Due to Peripheral Nerve
Disorders), A.M.A., Guides 492. Dr. Weiss’ June 3, 2005 report did not identify an upper extremity peripheral
nerve disorder. Therefore, the appropriate table for determining strength deficit due to loss of elbow flexion is Table
16-35 (Manual Muscle Testing), A.M.A., Guides 510. As noted, both doctors agreed that appellant had six percent
impairment due to biceps weakness.
5

See A.M.A., Guides 484, Table 16-11; A.M.A., Guides 510, Table 16-35; A.M.A., Guides 573, section 18.3d;
A.M.A., Guides 574, Figure 18-1; A.M.A., Guides 604-05, Combined Values Chart.
6

See A.M.A., Guides 511-12, section 16.9.

3

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: June 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERAL REVENUE SERVICE,
Syracuse, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0667
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2021 appellant filed a timely appeal from an October 1, 2020 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. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish that an injury
occurred in the performance of duty on May 20, 2020, as alleged.
FACTUAL HISTORY

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the October 1, 2020 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

On June 1, 2020 appellant, then a 55-year-old internal revenue agent, filed a traumatic
injury claim (Form CA-1) alleging that on May 20, 2020 she fractured her left upper extremity
while in the performance of duty. She further explained that, while working from home, she
tripped and fell while trying to kick a toy to her cat. On the reverse side of the claim form B.D.,
an employing establishment supervisor, indicated that appellant was in telework status and that the
incident occurred during scheduled work hours, but controverted the claim, contending that
appellant was not in the performance of duty. Appellant stopped work on the date of injury and
returned to work with restrictions on June 8, 2020.
In a June 3, 2020 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
afforded her 30 days to submit the necessary evidence.
In a statement dated June 8, 2020, appellant indicated that at the time of her injury, she was
walking to her home office when she noticed a cat toy in her path. While trying to kick it toward
her cat, her right foot skidded on the floor and she fell, landing on her left arm and face. Appellant
indicated that she believed she was in the performance of duty at the time of the injury, because
she was ordered to work from home until further notice due to the closing of federal buildings due
to COVID-19.
In a report dated May 21, 2020, Dr. Russell M. LaFrance, a Board-certified orthopedic
surgeon, diagnosed appellant with a left proximal humerus fracture including the greater tuberosity
with endosteal scalloping in the humeral head. He noted a history that she fell while kicking a cat
toy across her wood floor.
By decision dated July 8, 2020, OWCP denied appellant’s claim, finding that she had not
established that her injury was sustained in the performance of duty. It found that she was injured
while working from home and engaged in an act for personal comfort and convenience. OWCP
further noted that the personal comfort doctrine did not apply to employees working at home and
that only activities directly related to official duties were covered. It further found that the activity
appellant was engaged in at the time of her injury was not directed to the actual performance of
the duties of her federal employment. Consequently, OWCP concluded that the requirements had
not been met to establish an injury or medical condition as defined by FECA.
On August 6, 2020 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. In support of her request, she submitted a second
statement reiterating that she believed she was in the performance of duty when she was injured,
because she was instructed to work from home effective March 23, 2020. Appellant also explained
that, due to the sensitive nature of her work materials involving taxpayer information, she utilized
a confined space in her home as an office, and when she finishes her coffee in the morning, she
takes the cup downstairs to her kitchen so that it does not take up necessary office space. She
related that on May 20, 2020 she was returning to her home office from the kitchen and tried to
kick a toy to her cat, missed, and went flying onto the ground in front of her stairs.
By decision dated October 1, 2020, OWCP’s hearing representative affirmed OWCP’s
denial of the claim.

2

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, 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
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”6 The phrase
“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of “arising out of and in the
course of employment.”7 The phrase “in the course of employment” is recognized as relating to
the work situation, and more particularly, relating to elements of time, place, and circumstance.
To arise in the course of employment, an injury must occur at a time when the employee may
reasonably be stated to be engaged in the master’s business, at a place where the employee may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his employment or engaged in doing something incide ntal
thereto.8 This alone is insufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requireme nt being that the
employment caused the injury. 9
Its procedures provide that ordinarily, the protections of FECA 10 do not extend to the
employee’s home, but there is an exception when the injury is sustained while the employee is
performing official duties. In situations of this sort, the critical problem is to ascertain whether at
the time of injury the employee was in fact doing something for the benefit of the employer.11
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

5 U.S.C. § 8102(a).

7

See D.L., Docket No. 19-0276 (issued April 20, 2020); M.T., Docket No. 17-1695 (issued May 15, 2018); S.F.,
Docket No. 09-2172 (issued August 23, 2010); Charles Crawford, 40 ECAB 474, 476-77 (1989).
8

See M.T., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

9

See M.T., id.; Eugene G. Chin, 39 ECAB 598, 602 (1988).

10

Supra note 1.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
see also M.T., Docket No. 16-0927 (issued February 13, 2017); S.F., Docket No. 09-2172 (issued August 23, 2010).

3

In determining whether an injury occurs in a place where the employee may reasona bly be
or constitutes a deviation from the course of employment, the Board will focus on the nature of
the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment. 12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on May 20, 2020, as alleged.
As noted above, for employees performing official duties at home, OWCP has provided
that employees must be directly engaged in the performance of their duties to be covered under
FECA.13 Appellant alleged that she was injured when she kicked a toy to her cat. Her actions
constitute a deviation from the course of employment. At the time of the slip and fall, appellant
was not engaged in an activity essential to her employment or reasonably incidental to the duties
that she was hired to perform. 14 The Board thus finds that the injury she sustained did not occur
in the performance of her federal employment duties.
For these reasons, the Board finds that appellant has not met her burden of proof to establish
an injury in the performance of duty on May 20, 2020, as alleged.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury, in the
performance of duty on May 20, 2020, as alleged.

12

See A.S., Docket No. 17-1880 (issued December 12, 2018); T.C., Docket No. 16-1070 (January 24, 2017).

13

Supra note 1

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
AIRPORT TERMINAL, Humacao, PR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1423
Issued: April 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 17, 2015 appellant filed a timely appeal of an April 1, 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 to
consider the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on January 3, 2015.

1
2

5 U.S.C. § 8101 et seq.

On appeal to the Board appellant submitted new evidence. As OWCP did not consider this evidence in reaching
a final decision, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 7, 2015 appellant, then a 44-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on January 3, 2015 at 9:00 p.m. she slipped in
the break room of the employing establishment injuring her knee, back, and hip. On the reverse
of the form, appellant’s tour of duty is listed as from 9:00 p.m. to 5:30 a.m.
In support of her claim, appellant submitted a magnetic resonance imaging (MRI) scan of
her left knee dated January 9, 2015 which demonstrated medial collateral ligament sprain. On
February 4, 2015 Dr. Leonardo Pirillo, a physiatrist, examined appellant due to knee pain and
reviewed her MRI scan. The remainder of this note is illegible.
Dr. Manuel Soto Ruiz, an orthopedic surgeon, completed a note on February 18, 2015
and determined that appellant could not work. He also completed a note in Spanish on the same
date.
OWCP requested additional factual and medical information from appellant in support of
her claim on February 27, 2015. It provided appellant with a questionnaire and requested that
she sign, date, and return the completed document to OWCP. OWCP allowed 30 days for a
response. Appellant submitted a narrative statement in Spanish, which she had previously
provided to the employing establishment. She also submitted medical documentation written in
Spanish and a letter from counsel dated February 17, 2015 also in Spanish.
Dr. Arnaldo Reyes, a family practitioner, examined appellant on January 15 and 28,
2015, finding that she was totally disabled through February 19, 2015. He diagnosed tear of the
lateral cartilage or meniscus of the knee and sprain of the medial collateral ligament of the knee.
In a note dated March 4, 2015, Dr. Ruiz provided work restrictions of no lifting over 30
pounds, no bending, and standing up to 30 minutes at a time. Appellant accepted a limited-duty
assignment on March 17, 2015.
By decision dated April 1, 2015, OWCP denied appellant’s claim for a traumatic injury,
finding that she had failed to submit the necessary evidence to establish her claim. It stated that
appellant had failed to provide the factual evidence requested in the February 27, 2015 letter and
to provide medical evidence establishing a causal relationship between her diagnosed conditions
and her January 3, 2015 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment

3

5 U.S.C. §§ 8101-1893.

2

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
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
ANALYSIS
The Board finds that the case is not in posture for a decision.
OWCP denied appellant’s claim because she had failed to submit sufficient factual
evidence to establish that the events occurred as she alleged. It stated that appellant failed to
provide factual evidence requested in the February 27, 2015 letter. OWCP further noted that
appellant had failed to provide medical evidence establishing a causal relationship between a
diagnosed condition and her employment. The case record, however, does not contain a
translation of the Spanish portions of appellant’s medical records.
OWCP denied appellant’s claim as she had failed to submit sufficient factual and medical
evidence to establish that the events occurred as she alleged or that there was causal relationship
between the diagnosed condition and her employment. The Board has held that it is
unreasonable for OWCP to deny a claim before it attempts to secure an accurate translation of
relevant medical evidence.9 It is well established that proceedings under FECA are not
adversarial in nature and that, while the claimant has the burden to establish entitlement to

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

20 C.F.R. § 10.5(ee).

7

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

8

J.Z., 58 ECAB 529 (2007).

9

Ana D. Pizarro, 54 ECAB 430 (2003) (finding that appellant had submitted medical evidence in Spanish, but
that OWCP had not analyzed or sought a translation of this medical evidence, and remanding the case for this
purpose); Armando Colon, 41 ECAB 563 (1990) (OWCP abused its discretion in denying an employee’s request for
reconsideration because the medical evidence submitted lacked probative value because it was in a foreign
language); H.S., Docket No. 11-1170 (issued December 14, 2011); M.T., Docket No. 09-208 (issued November 9,
2009); A.G., Docket No. 08-206 (issued May 12, 2008); R.R., Docket No. 13-1405 (issued October 21, 2013).

3

compensation, OWCP shares responsibility in the development of the evidence. OWCP has an
obligation to see that justice is done.10
For OWCP and the Board to properly consider all medical evidence of record, an
accurate translation of the medical report in Spanish is needed. The Board clarifies, however,
that OWCP is under no obligation to translate appellant’s or her attorney’s own statements. It
must, however, provide appellant an opportunity to provide these documents in English before it
finds these documents of no probative value. Therefore, the case will be remanded for action
consistent with this decision and, after conducting such further development as it may find
necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for a decision and must be remanded for
further development of the record.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2015 decision of the Office of
Workers’ Compensation Programs is remanded for further action consistent with this decision of
the Board.
Issued: April 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

John J. Carlone, supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, BALTIMORE
PERFORMANCE CLUSTER, Baltimore, MD,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1115
Issued: January 4, 2012

Case Submitted on the Record

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

JURISDICTION
On April 5, 2011 appellant filed a timely appeal from the March 22, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) granting a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
an eight percent permanent impairment of her right arm or an eight percent permanent
impairment of her left arm, for which she received schedule awards.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
In April 1985 OWCP accepted that appellant, then a 31-year-old letter sorting machine
operator, sustained bilateral carpal tunnel syndrome due to the repetitive duties of her job over
time. It authorized the performance of bilateral carpal tunnel release surgeries in 1985.
Appellant stopped work in July 2003 and retired from the employing establishment in
February 2009.
Appellant filed a claim for a schedule award due to her accepted work injuries.
Electromyogram (EMG) and nerve conduction velocity (NCV) testing from June 2007 revealed
severe right and moderate-to-severe left median nerve compression at the wrists.
In a July 14, 2009 report, Dr. Raymond A. Wittstadt, an attending Board-certified hand
surgeon, reported his findings on examination and noted that appellant could not make quite a
full fist, that her fingertips did not touch her palms and that there was a positive Phalen’s test
with paresthesias and a negative Tinel’s test. Both hands had similar findings on examination
and the median nerve distal latency was over five milliseconds on both sides, which indicated the
existence of moderately severe carpal tunnel syndrome. Dr. Wittstadt recommended that surgery
be conducted, but appellant refused the surgery. He did not utilize the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009), but rather recommended a 15 percent permanent impairment of the right hand and a 15
percent permanent impairment of the left hand under the fifth edition of the A.M.A., Guides (5th
ed. 2001).
In an August 16, 2009 report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser, indicated that he had reviewed the medical
evidence of record, including the findings of Dr. Wittstadt, and noted that he was providing an
impairment rating under the standards of the sixth edition of the A.M.A., Guides. Dr. Berman
stated that a June 2007 EMG study demonstrated axonal loss for each arm which, with respect to
test findings, would place each arm under a grade modifier 3 of Table 15-23 (Entrapment
Compression Neuropathy Impairment) on page 449. He indicated that appellant’s condition also
warranted a grade modifier 3 for the history category and a grade modifier 3 for the physical
findings category for each arm. Dr. Berman averaged the three individual grade modifier 3
scores to equal a total score of grade modifier 3. The default value for a grade modifier 3
constitutes an eight percent impairment rating under Table 15-23. Dr. Berman indicated that
appellant’s functional score for each arm was severe and fell under a grade modifier 3 and
therefore there was no adjustment of the default value of eight percent.2 He concluded that she
had an eight percent permanent impairment of her right arm and an eight percent permanent
impairment of her left arm under the sixth edition of the A.M.A., Guides.

2

Dr. Berman made reference to other portions of the sixth edition of the A.M.A., Guides, including Table 15-7
through Table 15-9, but his calculation was principally made under Table 15-23.

2

In a March 22, 2011 decision, OWCP granted appellant a schedule award for an eight
percent permanent impairment of her right arm and an eight percent permanent impairment of
her left arm. The award ran for 49.92 weeks from April 11, 2010 to March 26, 2011.3
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.8 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.9
ANALYSIS
OWCP accepted that appellant sustained work-related bilateral carpal tunnel syndrome
and authorized the performance of bilateral carpal tunnel releases surgeries. Appellant filed a
claim for a schedule award due to her work injuries.
In an August 16, 2009 report, Dr. Berman, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, discussed his review of the medical records and provided an
3

Information included with OWCP’s March 22, 2011 decision advised appellant that she might qualify for a
lump-sum payment of her schedule award compensation if she was currently working or receiving retirement
benefits from the Office of Personnel Management (OPM). Appellant was provided instructions for making such a
request.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

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

8

See A.M.A., Guides 449, Table 15-23.

9

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
function scale score. Id. at 448-49.

3

opinion that appellant had an eight percent permanent impairment of her right arm and an eight
percent permanent impairment of her left arm under the standards of the sixth edition of the
A.M.A., Guides.10 Dr. Berman properly applied these standards to reach his conclusion about
appellant’s permanent arm impairment.
Dr. Berman properly made reference to Table 15-23 (Entrapment/Compression
Neuropathy Impairment) on page 449 of the sixth edition of the A.M.A., Guides.11 He chose
grade modifiers for the various relevant categories and determined that appellant fell under grade
modifier 3 which had a default value equaling an eight percent impairment rating. Dr. Berman
determined that appellant’s functional score in each arm did not require this default value to be
adjusted. The Board notes that there is no probative medical evidence of record showing that
appellant has more than an eight percent permanent impairment of her right arm and an eight
percent permanent impairment of her left arm, for which she received a schedule award.12 For
these reasons, OWCP properly declined to award appellant additional schedule award
compensation.
On appeal, appellant asserted that OWCP improperly failed to pay her schedule award in
a lump-sum payment. However, there is no indication in the record that he made a request with
OWCP for a lump-sum payment of her schedule award.13 Moreover, appellant has already
received all the schedule awards’ monies to which she was entitled.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than an eight percent permanent impairment of her right arm and an eight percent
permanent impairment of her left arm, for which she received a schedule award.

10

OWCP’s decision regarding impairment was not issued until after May 1, 2009 and therefore evaluation of
appellant’s impairment under the sixth edition of the A.M.A., Guides was appropriate. See supra note 7. The
medical evidence reviewed by Dr. Berman included a July 14, 2009 report of Dr. Wittstadt, an attending Boardcertified hand surgeon.
11

A.M.A., Guides 449, Table 15-23 (6th ed 2009).

12

In his July 14, 2009 report, Dr. Wittstadt determined that appellant had a 15 percent permanent impairment of
her right hand and a 15 percent permanent impairment of her left hand under the fifth edition of the A.M.A., Guides.
However, this rating is of no probative value because it was not made under the relevant standards for the present
case, i.e., the sixth edition of the A.M.A., Guides. See supra note 7.
13

Information included with OWCP’s March 22, 2011 decision advised appellant that she might qualify for a
lump-sum payment of her schedule award compensation if she was currently working or receiving retirement
benefits from OPM. Appellant was provided instructions for making such a request.

4

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Anchorage AK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1596
Issued: March 27, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 19, 2012 appellant filed a timely appeal of the February 15, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than one
year elapsed between the most recent merit decision dated February 7, 2011 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of this case pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant contends that the medical evidence of record is sufficient to
establish his entitlement to continuing disability compensation. He further contends that his
request for reconsideration was timely filed as it was mailed on February 6, 2012.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 24, 2007 OWCP accepted that appellant sustained post-traumatic stress disorder
due to his employment as a supervisory personnel management specialist.
On September 23, 2008 appellant filed a claim for wage-loss compensation Form CA-7
commencing December 12, 2005. Medical records dated August 29, 2001 to March 16, 2010
addressed his emotional conditions and work capacity.
In a February 7, 2011 decision, OWCP denied appellant’s claim for compensation
commencing December 12, 2005. It found that the medical evidence was not contemporaneous
to the claimed period of disability and did not address his disability during this period. The
attached notice of appeal rights advised that any request for reconsideration had to be received
within one calendar year of the date of the decision.
By letter dated May 7, 2011, appellant requested reconsideration.
In an August 11, 2011 decision, OWCP denied his request for reconsideration, finding
that he did not show that OWCP erroneously applied or interpreted a point of law, advance a
point of law not previously considered by OWCP or include pertinent new and relevant evidence
sufficient to warrant merit review of its prior decision.
In an appeal request form dated February 6, 2012 and received by OWCP on
February 10, 2012, appellant requested reconsideration of the February 7, 2011 merit decision.
He submitted additional evidence which included an undated medical report from Dr. Eric W.
Garby, an attending Board-certified psychiatrist, and a February 4, 2012 report from
Dr. William G. Campbell, a Board-certified psychiatrist, which addressed the treatment and
cause of his emotional conditions.
In a February 15, 2012 decision, OWCP denied appellant’s request for reconsideration,
without a merit review, on the grounds that it was not timely filed and failed to establish clear
evidence of error in the last merit decision dated February 7, 2011. It found that his February 6,
2012 request was not received until February 10, 2012. OWCP further found that the submitted
medical evidence did not address the basis on which appellant’s claim was denied on
February 7, 2011.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.2
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.3

2

20 C.F.R. § 10.607(a).

3

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

2

OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.4 OWCP regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.11
OWCP procedures were changed effective August 29, 2011. Section 10.607 of the new
regulations provide that the date of the reconsideration request for timeliness purposes was
changed from the date the request was mailed to the date the request was received by OWCP.12
OWCP procedures, however, provide that, for decisions issued on or after June 1, 1987 through
August 28, 2011, the one-year period begins on the date of the original decision and the

4

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

5

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).
OWCP procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
6

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

7

See Leona N. Travis, 43 ECAB 227, 240 (1991).

8

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

9

See supra note 7.

10

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

11

Leon D. Faidley, Jr., supra note 3.

12

20 C.F.R. § 10.607.

3

application for reconsideration must be mailed to OWCP within one year of the date of OWCP’s
decision for which review is sought.13
ANALYSIS
In its most recent merit decision dated February 7, 2011, OWCP denied appellant’s claim
for wage-loss compensation commencing December 12, 2005. The one-year time limitation for
reconsideration began to run on the date following the date of that decision. Therefore, as the
statement of appeal rights attached to the February 7, 2011 decision advised, appellant had one
year from February 7, 2011 to submit a timely request for reconsideration to OWCP.14
As the decision was issued on February 7, 2011, appellant’s appeal rights attached at that
time and the regulations in place on the date of the February 7, 2011 decision should be
determinative as to whether his appeal request was timely filed. At the time that OWCP’s
February 7, 2011 decision was issued, OWCP’s regulations provided that a request must be sent
within one year of the date of OWCP’s decision for which review was sought. If submitted by
mail, the regulations provide that the application will be deemed timely if postmarked by the
U.S. Postal Service within the time period allowed.15 These procedures provided that if the
postmark or other evidence establishing the date of mailing was not available, the date of the
letter itself should be used.16 The Board finds that since the case record does not contain a copy
of the envelope in which appellant’s request for reconsideration arrived, and there is no other
evidence to establish the date of mailing, the timeliness of the request will be determined by the
date of the request for reconsideration, i.e., February 6, 2012. As appellant’s request for
reconsideration was timely, the Board finds that OWCP improperly denied his request by
applying the legal standard reserved for cases where reconsideration is requested after one year.
Since OWCP erroneously reviewed the evidence submitted in support of appellant’s
reconsideration request under the clear evidence of error standard, the Board will remand the
case for review of the evidence under the proper standard of review for a timely reconsideration
request.17
CONCLUSION
The Board finds that OWCP improperly found that appellant’s request for
reconsideration of OWCP’s February 7, 2011 decision was untimely filed.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4e (August 2011).

14

See C.K., Docket No. 10-1665 (issued May 25, 2011).

15

Supra note 12.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004);
L.R., Docket No. 10-2410 (issued April 6, 2011).
17

In light of the disposition of this case, the Board will not address appellant’s arguments on appeal.

4

ORDER
IT IS HEREBY ORDERED THAT the February 15, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: March 27, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5