United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, GENERAL POST
OFFICE ANNEX, Kansas City, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2145
Issued: February 20, 2007

Case Submitted on the Record

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

JURISDICTION
On September 20, 2006 appellant filed a timely appeal from a July 6, 2006 decision of
the Office of Workers’ Compensation Programs denying periods of intermittent wage loss.
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 has established entitlement to 6.26 hours of wage-loss
compensation and 1.25 hours of leave buyback during intermittent periods.

FACTUAL HISTORY
On October 12, 1998 appellant, a 57-year-old letter carrier, filed an occupational disease
claim alleging that his bilateral plantar fasciitis was employment related. The Office accepted
the claim for bilateral plantar fasciitis and right Achilles tendinitis.1
On December 2, 2005 the Office authorized physical therapy for the period December 1,
2005 through January 1, 2006. The Office received physical therapy treatment records for
December 19, 2005 and January 3, 4 and 6, 2006.
On April 14, 2006 appellant filed a claim for compensation (Form CA-7) for the period
June 3, 2005 to April 3, 2006 due to intermittent disability causally related to his March 2, 1998
left foot injury.2 An employing establishment time analysis form stated that appellant used a
total of 13.66 hours3 of LWOP on June 3, October 17 and December 19, 21, 23, 27, 28 and 30,
2005 and January 3, 4 and 6 and February 13 and 17, March 6 and April 3, 2006 for medical
appointments and physical therapy.4 The time analysis form reported zero hours of LWOP for
June 3, 2005 and April 3, 2006 as appellant worked eight hours.5 Appellant used 1.25 hours of
LWOP on October 17 and December 23, 27, 28, 2005 and January 3 and 6 and February 13 and
17 and March 6, 2006. He used 1.26 hours of LWOP on December 30, 2005 and 1.15 hours of
LWOP on January 4, 2005. Annual leave was used on December 19, 21 and 30, 2005.6
In a letter dated May 2, 2006, the Office noted that appellant filed a request for 13.66
hours of LWOP. Appellant was informed that medical evidence was lacking for the period
December 23, 27, 28 and 30, 2005 and February 17, 2006, for a total of 6.26 hours. The Office
advised appellant that he was paid for 7.40 hours of LWOP for the dates October 27, 2005 and
January 3, 4 and 6 and February 13 and March 6, 2006.

1

On June 1, 2000 the Office issued a loss of wage-earning capacity decision which found that appellant had no
loss of wages in his modified city carrier position which was effective March 11, 2000.
2

Appellant checked the box for a schedule award with the notation “reconsideration.” On August 31, 2004 the
Office awarded appellant a schedule award for a 5 percent impairment of the right lower extremity and a 10 percent
impairment of the left lower extremity. The record does not contain a final decision by the Office regarding
appellant’s request regarding his schedule award. As there is no final Office decision on this issue, the Board may
not address this issue on appeal. See 20 C.F.R. § 501.2(c).
3

Appellant claimed that he used a total of 18.75 hours of leave without pay (LWOP) on the forms. The
employing establishment adjusted the total to 13.66 hours of LWOP.
4

Appellant noted that he had doctor’s appointments on June 3 and October 17, 2005 and February 13 and 17,
March 6 and April 3, 2006 and physical therapy appointments on December 19, 21, 23, 27, 28 and 30, 2005 and
January 3, 4 and 6, 2006.
5

Appellant indicated that he used 1.25 hours of LWOP. The employing establishment crossed this out as he had
worked eight hours.
6

The employing establishment changed appellant’s LWOP to annual leave for December 19, 21 and 30, 2005.
Annual leave used was 1.24 hours for December 19, 2005, 1.23 hours for December 21 2005 and 4 hours for
December 30, 2005.

2

Appellant submitted medical evidence for January 3 to 6, 2006 and factual information.
He noted that he attended physical therapy on December 19, 21, 23, 27, 28 and 30, 2005 and had
a doctor’s appointment on April 3, 2006. The leave requests forms included requests for 1.25
hours of LWOP for physical therapy on December 19, 21, 23, 27, 28 and 30, 2005 and 2 hours of
LWOP for a medical appointment on April 3, 2006.
By letter dated May 22, 2006, the Office informed appellant that he was not entitled to
compensation for December 19 and 21, 2005 and April 3, 2006 as LWOP was not used.
Appellant was informed that the evidence established that he either worked eight hours or
worked part of the day and used annual leave for the remainder of the day for the dates in
question. The Office acknowledged receipt of a December 19, 2005 physical therapy report, but
noted that the record contained no supporting medical documentation regarding the remaining
dates in question.
By decision dated July 6, 2006, the Office denied appellant’s claim for wage-loss benefits
for a total of 6.26 hours. The Office found that there was no medical evidence establishing lost
wages on December 23, 27, 28 and 30, 2005 and February 17, 2006 for a total of 5.01 hours.
The Office also denied appellant’s claim for 1.25 hours of wage loss for a physical therapy
appointment on December 19, 2005. In support of this finding, the Office found that there was
no wage loss as he used annual leave.7
LEGAL PRECEDENT
Under the Act, the term disability is defined as the incapacity because of an employment
injury to earn the wages the employee was receiving at the time of injury.8 Whether a particular
injury causes an employee to be disabled for work and the duration of that disability are medical
issues which must be proved by the weight of substantial and reliable medical evidence.9
The claimant has the burden of proving that he is disabled for the period claimed as a
result of the employment injury. Appellant has the burden of establishing by the weight of the
substantial, reliable and probative evidence, a causal relationship between his claimed disability
for 6.26 hours of LWOP during the period June 3, 2005 to April 3, 2006 and his accepted
bilateral plantar fasciitis and right Achilles tendinitis.10 The Board will not require the Office to
pay compensation for disability in the absence of medical evidence directly addressing the

7

The Board notes that, following the July 6, 2006 decision, the Office received additional evidence. However,
the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); Donald R. Gervasi, 57 ECAB ___
(Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
8

See Robert A. Flint, 57 ECAB ___ (Docket No. 05-1106, issued February 7, 2006); Prince E. Wallace, 52
ECAB 357 (2001).
9

See Carol A. Lyles, 57 ECAB ___ (Docket No. 05-1492, issued December 13, 2005); Fereidoon Kharabi, 52
ECAB 291 (2001).
10

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005); Alfredo Rodriguez, 47 ECAB
437 (1996).

3

particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.11
Case law makes clear that an employee is entitled to disability compensation for any loss
of wages incurred during the time he or she receives authorized treatment and for loss of wages
for time spent incidental to such treatment. The rationale for this entitlement is that, during such
required examinations and treatment and during the time incidental to undergoing such
treatment, an employee did not receive his or her regular pay.12
ANALYSIS
Appellant requested wage-loss compensation for a total of 18.75 hours from June 3, 2005
to April 3, 2006. The employing establishment amended the forms to show the use of 13.66
hours of LWOP. The record reflects that, since March 11, 2001, appellant worked eight hours a
day as a modified city carrier position. The Office approved wage-loss compensation for 7.40
hours of LWOP for the intermittent dates between October 27, 2005 and March 6, 2006. It
denied his claim for wage-loss compensation for 6.26 hours of LWOP for the dates
December 19, 23, 27, 28 and 30, 2005 and February 17, 2006.
The issue on appeal is whether appellant has established entitlement to 6.26 hours of
wage-loss compensation due to medical appointments and physical therapy for the dates in
question. The Board finds that the Office properly calculated appellant’s wage-loss
compensation. The Office denied wage-loss compensation for 6.26 hours for December 23, 27,
28 and 30, 2005 and February 17, 2006. The evidence submitted by appellant consists of various
leave request forms and a December 19, 2005 physical therapy report. The leave request forms
are insufficient to establish his claim as they are not medical evidence. To support wage loss,
appellant must submit documentation from a doctor or physical therapist showing treatment or
an appointment on the dates in question for the accepted condition. As noted above, the Board
does not require the Office to pay compensation for disability in the absence of any medical
evidence directly addressing the period of disability for which disability is claimed. To do so
would essentially allow employees to self-certify their disability and entitlement to
compensation.13 The record contains no medical evidence supporting appellant’s contention that
he was at physical therapy or a medical appointment, the Office properly denied his request for
6.26 hours of wage-loss compensation.
The Board notes that appellant also claimed compensation for December 19, 2005, for a
1.25 hour physical therapy appointment. The record contains evidence that appellant had a
physical therapy appointment on that date and that the Office had authorized physical therapy on
that date for the accepted injury. As appellant attended physical therapy on December 19, 2005,
the Board finds that appellant has established that he was disabled on that date, for the claimed
1.25 hours for the medical appointment. A review of the record indicates that the time analysis
11

Fereidoon Kharabi, supra note 9.

12

Henry Hunt Searles, III, 46 ECAB 192 (1994).

13

Amelia S. Jefferson, supra note 10; Fereidoon Kharabi, supra note 9.

4

form notes that appellant had initially requested LWOP for 1.25 hours on December 19, 2005,
but that the employing establishment paid annual leave for this leave on December 19, 2005.
The record establishes that appellant attended physical therapy on December 19, 2005,
which was authorized by the Office for treatment of the employment-related injury. The Board
finds that appellant was disabled for 1.25 hours on December 19, 2005.
CONCLUSION
The Board finds that appellant has not established entitlement to 5.01 hours of wage-loss
compensation. However, the Board finds that appellant has established disability for 1.25 hours
on December 19, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 6, 2006 is affirmed, as modified.
Issued: February 20, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
PRISONS SYSTEM, Oakdale, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1463
Issued: April 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2010 appellant filed a timely appeal from a February 4, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 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 the Office properly found that an overpayment of
$103,117.02 was created from August 10, 2005 to October 20, 2008; and (2) whether the Office
properly found appellant was at fault in creating the overpayment.
FACTUAL HISTORY
The Office accepted that appellant sustained a right knee meniscus tear in the
performance of duty on November 16, 1998.
Appellant began receiving wage-loss
1

5 U.S.C. § 8101 et seq.

compensation. By decision dated March 28, 2001, the Office determined the selected position of
stock control clerk represented his wage-earning capacity and appellant’s compensation was
reduced.
Appellant was periodically requested to submit evidence regarding his earnings. In a
letter dated September 1, 2006, the Office requested that he complete a Form EN1032 covering
the prior 15 months. Appellant was advised that a false or evasive answer could be grounds for
forfeiture of compensation benefits. The form contains a certification clause acknowledging that
anyone who fraudulently conceals or fails to report income may be subject to criminal
prosecution, and that all statements made on the form are true, complete and correct to the best
of a claimant’s knowledge.
In a Form EN1032 dated November 9, 2006, appellant responded “yes” to a question as
to whether he was self-employed or involved in a business enterprise in the last 15 months. He
reported employment activity in a plant nursery at $7.00 an hour, approximately $200.00 a week.
In a Form EN1032 dated September 27, 2007, appellant again indicated that he worked in a plant
nursery office. He reported the rate of pay at $7.00 an hour, 20 to 30 hours a week.
The record contains a statement of earnings from the Social Security Administration
(SSA) indicating that appellant had $20,551.00 in self-employment earnings for the year 2006.
No earnings for 2005 were reported. Appellant completed an EN1032 dated October 20, 2008,
reporting employment activity at the plant nursery at $7.00 an hour and 280.00 a week. An SSA
document received by the Office on January 16, 2009 showed earnings of $49,801.00 in 2007.
By decision dated March 16, 2009, the Office determined that appellant forfeited his
compensation from August 10, 2005 to October 20, 2008. In an accompanying memorandum, it
stated that the period covered by the EN1032’s was August 10, 2005 to October 20, 2008. The
Office stated that appellant had been advised of his obligations to report earnings, and he had
knowingly submitted false and evasive answers, requiring forfeiture of his compensation from
August 10, 2005 to October 20, 2008.
In a letter dated March 23, 2009, appellant stated that he did not feel he had knowingly
underreported his earnings. He stated the earnings he reported to the Office were estimates
because he did not draw an actual check from the nursery. Appellant indicated that he deposited
his compensation payment in the same account that the nursery business used, making it difficult
to estimate his actual earnings.
By letter dated July 28, 2009, the Office advised appellant of a preliminary determination
that an overpayment of $103,117.02 had been created from August 10, 2005 to
October 20, 2008. It also made a preliminary determination that he was at fault in creating the
overpayment. Appellant requested a prerecoupment hearing on the overpayment issues.
At the November 24, 2009 hearing, appellant indicated that he was the owner of a
wholesale nursery business that had been operating since approximately 2000. He stated that
during the overpayment period, he did “paperwork in the office. I kind of go out and broker
plants and just try to sell plants.” According to appellant he would draw money from the
business account, approximately $21 b0.00 a week, although he would not draw funds every

2

week. An accountant testified that the business had a loss in 2005, profits of approximately
$22,000.00 in 2006 and $54,000.00 in 2007, with a loss in 2008.
By decision dated February 4, 2010, an Office hearing representative affirmed the
preliminary determination of a $103,117.02 overpayment. The hearing representative also
finalized a finding of fault in creating the overpayment. By decision dated February 19, 2010,
the Office requested that appellant submit payment for the entire amount of the overpayment.2
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Act provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at times the Secretary specifies…. An employee who:
(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered … under section 8129 of this title, unless
recovery is waived under that section.”3
ANALYSIS -- ISSUE 1
The Office made a finding that an overpayment was created from August 10, 2005 to
October 20, 2008 because appellant had knowingly understated his earnings on three specific
EN1032 forms: November 9, 2006, September 27, 2007 and October 20, 2008. In the
February 4, 2010 Office decision, the hearing representative did not consider each form
separately. To properly address the issue, the Office should establish for each Form EN1032
filed that: (1) there was an understatement of earnings; and (2) the understatement was
knowingly made.
With respect to the November 9, 2006 Form EN-1032, the Office did not establish that
earnings were understated. Appellant reported on the form he earned $7.00 an hour and
approximately $200.00 a week. The evidence cited by the hearing representative was the SSA
earnings and the testimony of the accountant regarding profit or losses for specific years. As of
November 9, 2006 the annual profit for 2006 for the nursery business had yet to be determined.
The Office cannot require appellant to account for earnings from annual business profits in 2006
before those annual profits have been determined. The Form EN1032 requires him to state his
earnings for the prior 15 months, which would include earnings he received directly from the
2

The Board’s jurisdiction over recovery of an overpayment is limited to cases where the Office seeks recovery
from continuing compensation payments under the Act. M.C., Docket No. 10-881 (issued February 7, 2011).
3

5 U.S.C. § 8106(b).

3

business, and if he performed unpaid work, the amount he would have had to pay someone to
perform the work.4 The Office made no findings on these issues for the period covered by the
November 9, 2006 Form EN1032.
Appellant indicated that he sometimes took out
approximately $210.00 a week, but other times he did not. The Office did not refer to any
specific relevant evidence or make appropriate findings as to what amount he should have
reported on the November 9, 2006 Form EN1032. It is therefore not established that appellant
understated his earnings and the forfeiture of compensation based on the November 9, 2006
Form EN1032 is not supported by the record.
At the time of the September 27, 2007 Form EN1032, appellant did have established
earnings as reported by the SSA for 2006. The period covered by the form is June 27, 2006 to
September 27, 2007. The reported earnings for 2006 were approximately $400.00 a week and
these should have been reported on the Form EN1032. Since appellant reported only up to $7.00
an hour, 20 to 30 hours a week in earnings, he did understate his earnings. Moreover, the
evidence of record supports a finding that the understatement was “knowingly.” The Form
EN1032 clearly required him to report earnings for the prior 15 months, including any
employment for which he received wages, income or payment of any kind. Appellant argued
that he was making an “estimate” of his earnings on the form, without explaining why he failed
to report documented earnings from the nursery business. The certification clause of the Form
EN1032 states the claimant is certifying all statements are true, complete and correct to the best
of his knowledge. Based on the probative evidence, the Board finds that appellant knowingly
understated his earnings on the September 27, 2007 Form EN1032.5 Pursuant to 5 U.S.C.
§ 8106, appellant’s compensation from June 27, 2006 to September 27, 2007 is forfeited and the
Office may recover the overpayment.
Similarly, the October 20, 2008 Form EN1032 represents a knowing understatement of
earnings. The period of the form is July 20, 2007 to October 20, 2008, and appellant had
documented earnings in 2007 of over $950.00 a week. His statement on the October 20, 2008
Form EN1032 that he earned only $280.00 a week represents understated earnings. In view of
the clear requirement to report the earnings and the documented evidence of those earnings, the
Office properly found that appellant “knowingly” understated his earnings.
The Board accordingly finds that the evidence supports a finding that appellant forfeited
his compensation from June 27, 2006 to October 20, 2008. The evidence of record does not
support a forfeiture from August 10, 2005 to June 26, 2006. On return of the case record, the
Office should properly calculate the amount of the overpayment in this case.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129 provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of the Act or would be against equity and good

4

See M.C., supra note 2.

5

See P.M., Docket No. 07-2169 (issued March 3, 2009)

4

conscience.”6 Waiver of an overpayment is not permitted unless the claimant is “without fault”
in creating the overpayment.7 On the issue of fault, 20 C.F.R. § 10.433 provides that an
individual will be found at fault if he or she has done any of the following: “(1) made an
incorrect statement as to a material fact which he or she knew or should have known to be
incorrect; (2) failed to provide information which he or she knew or should have known to be
material; or (3) accepted a payment which he or she knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
As the Board noted above, appellant was found to have knowingly understated his
earnings on the September 27, 2007 and October 20, 2008 Form EN1032. Under the standards
for finding fault in the creation of an overpayment, a claimant is at fault if he failed to provide
information that he knew or should have known was material or made an incorrect statement as
to a material fact that he knew or should have known was incorrect. The discussion of the
evidence on forfeiture establishes that appellant did make an incorrect statement as to a material
fact that he knew or should have known was incorrect. Appellant signed the EN1032 forms
which required him to report earnings and advised him in explicit language that he might be
subject to criminal penalties if he knowingly made a false statement or misrepresentation or
concealed a fact to obtain compensation. By signing the form, is deemed to have acknowledged
his duty to fill out the form properly, including the duty to accurately report any employment or
self-employment activities and income.8 The Board finds the understatement of earnings is an
incorrect statement as to a material fact that appellant knew or should have known was incorrect.
Pursuant to 20 C.F.R. § 10.433, appellant was at fault in creating an overpayment from
June 27, 2006 to October 20, 2008. Since he was at fault, waiver of the overpayment is not
permitted.
CONCLUSION
The Board finds that the evidence establishes an overpayment of compensation from
June 27, 2006 to October 20, 2008. The case will be remanded for recalculation of the amount
of the overpayment. For the period of the overpayment, appellant was at fault in creating the
overpayment and is not entitled to waiver.

6

5 U.S.C. § 8129(b).

7

Norman F. Bligh, 41 ECAB 230 (1989).

8

P.M., supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 4, 2010 is affirmed with respect to fact of overpayment
for the period June 27, 2006 to October 20, 2008 and a finding of fault. The decision is reversed
with respect to an overpayment from August 10, 2005 to June 26, 2006 and the case remanded
for proper calculation of the amount of overpayment.
Issued: April 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0350
Issued: August 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 18, 2015 appellant, through counsel, filed a timely appeal from a
September 9, 2015 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.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board.
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the September 9, 2015 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt,
57 ECAB 126 (2005).

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective June 2, 2013 as she was no longer disabled due to the accepted
August 26, 2010 employment injury.
FACTUAL HISTORY
On September 16, 2010 appellant, then a 42-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 26, 2010 she sustained an injury to her lower back
and buttocks as a result of falling down onto her back when a pet iguana attacked her in the
performance of duty. She stopped work on September 17, 2010. OWCP accepted appellant’s
claim for lumbar sprain, lumbosacral spondylosis without myelopathy, displacement of cervical
intervertebral disc without myelopathy, and left shoulder sprain. It paid compensation benefits
and placed her on the periodic rolls.
Appellant was initially treated by Dr. Gary C. Dennis, a Board-certified neurosurgeon,
who related in a September 17, 2010 report that on August 26, 2010 she sustained injuries to her
neck, low back, and left shoulder at work when an escaped iguana lunged towards her and
caused her to fall backwards. Dr. Dennis discussed appellant’s history and provided findings on
examination. He diagnosed left shoulder contusion, cervical and lumbar strains, and
radiculopathy. Dr. Dennis indicated that appellant was 100 percent disabled.
In an October 11, 2011 report, Dr. Dennis related that a magnetic resonance imaging
(MRI) scan examination of the left shoulder revealed some tendinosis and MRI scan of the
cervical spine showed C3-4 disc with protrusion causing narrowing canal and herniations at
various levels. He provided findings on examination and diagnosed left shoulder spasms with
cervical radiculopathy and carpal tunnel syndrome. Dr. Dennis reported that appellant remained
disabled from work.
Dr. Horace Mitchell, a Board-certified neurological surgeon, began to treat appellant on
February 9, 2012 and indicated in his report that she complained of neck and low back pain that
radiated into her left buttock area. Upon examination of her neck, he observed severe spasm in
the left trapezius muscle and tenderness over the brachial plexus on the left. Examination of the
pectoralis muscle showed weakness and depressed deep tendon reflexes. Dr. Mitchell pointed
out that appellant had failed conservative treatment and recommended anterior cervical
discectomy and fusion surgery. In an April 23, 2012 progress note, he noted that she had
cervical disc herniation at C5-6, and to a lesser degree at C6-7, and severe radiculopathy with
spasm and torticollis in the neck on the left side. Dr. Mitchell recommended that appellant
undergo an anterior cervical discectomy and fusion at C4-5 and C5-6. He indicated that he was
awaiting authorization for surgery.
Appellant was referred to Dr. John Loupe, a Board-certified orthopedic surgeon, for a
second opinion examination to determine whether she continued to suffer residuals of her
August 26, 2010 employment injury and whether she required further medical treatment. In a
September 24, 2012 report, Dr. Loupe described the August 26, 2010 employment incident and
reviewed appellant’s history. He conducted a physical examination and diagnosed lumbosacral

2

spondylosis, cervical disc displacement, and left shoulder sprain, resolved. Dr. Loupe concluded
that appellant no longer suffered residuals of the work-related injury and that she no longer
needed further medical treatment for her accepted conditions. He advised that she was able to
return to work without restrictions.
OWCP determined that a conflict in the medical evidence existed between Drs. Dennis
and Mitchell, appellant’s treating physicians, and Dr. Loupe, the OWCP referral physician, with
respect to her employment-related conditions and her disability. It referred appellant to
Dr. Christopher Cenac, Sr., a Board-certified orthopedic surgeon, to resolve the conflict in
medical evidence.
In a January 14, 2013 report, Dr. Cenac described the August 26, 2010 employment
injury and noted that OWCP had accepted lumbar sprain, lumbosacral spondylosis without
myelopathy, displacement of cervical intervertebral disc, and left shoulder sprain. He reviewed
her medical records and noted that various diagnostic examinations of the lumbar and cervical
spine revealed degenerative changes. Dr. Cenac further mentioned that appellant had been on
continuous controlled substances from June 20, 2008 to November 21, 2012 for pain
management. He related her current complaints of pain in the lower lumbar spine with radicular
pain into the left leg and numbness in the left foot, radiating pain into the left shoulder with
muscle spasm, and pain to the left medial scapula with numbness in her left hand and fingers.
Upon physical examination, Dr. Cenac reported that grip strength testing was not valid as
appellant gave no effort with the use of the dynamometer involving the left upper extremity. He
noted that Waddell tests were multiple and positive consistent with symptom magnification and
illness behavior. Dr. Cenac indicated that he attempted to examine appellant’s cervical and
lumbosacral spines, but her rigidity limited the examination. He reported that palpation of her
cervical spine, lower thoracic spine, and upper lumbar spine revealed nonphysiologic complaints.
Dr. Cenac related that appellant had normal reflexes in the upper extremity, but diminished heel
reflexes bilaterally and diminished sensation in the S1 distribution bilaterally. He noted that she
had no active motion of the cervical spine and was unable to forward flex or extend. Tinel’s
testing at the elbows was positive. Dr. Cenac reported that he observed appellant when she
arrived and left his office and related that she did not demonstrate any difficulty in ambulating.
He agreed with Dr. Loupe that she was no longer in need of further treatment for her accepted
injuries and was able to return to work.
On March 13, 2013 OWCP proposed to terminate appellant’s wage-loss compensation
benefits based on Dr. Cenac’s January 14, 2013 referee medical report. It determined that the
special weight of the medical evidence rested with Dr. Cenac, who determined that she was no
longer disabled from work. Appellant was advised that she had 30 days to submit evidence or
argument if she disagreed with the decision.
In a letter dated March 22, 2013, appellant requested that her treating physician be
changed to Dr. Darryl W. Peterson, a Board-certified orthopedic surgeon, who specializes in
hand surgery. She alleged that Dr. Cenac’s examination was incomplete and inaccurate because
he did not understand her job duties or work requirements. Appellant asserted that she had not
recovered from the August 26, 2010 employment injury and still suffered severe muscle spasms
in her left shoulder, neck pain, and limited use of her hands.

3

OWCP finalized the termination of appellant’s wage-loss compensation benefits in a
decision dated May 31, 2013. It found that Dr. Cenac’s January 14, 2013 referee medical report
represented the special weight of the medical evidence and established that she was no longer
disabled due to her accepted work-related conditions. OWCP noted that the claim remained
open for medical benefits.
On June 11, 2013 OWCP received appellant’s request, through counsel, for a hearing
before an OWCP hearing representative. The hearing was held on November 19, 2013.
Appellant’s counsel asserted that new medical evidence demonstrated that appellant continued to
have symptoms in her left shoulder and lumbar and cervical spines and remained disabled due to
her August 26, 2010 employment injury. Appellant described her work duties as a letter carrier,
which required walking 7 to 12 miles a day and carrying a mailbag that weighed up to
70 pounds, and the August 26, 2010 employment incident. She discussed the conservative
treatment that she had received and asserted that she had never fully recovered from her injuries.
Counsel asserted that her statements and the new medical proof demonstrated that she still
needed further medical treatment for her accepted conditions and was unable to work.
Appellant provided new reports dated July 24 and October 22, 2013 by Dr. Kenneth A.
Gaddis, a Board-certified neurologist. Dr. Gaddis indicated that she had sustained a work-related
injury on August 26, 2010 and that she continued to experience severe pain in her neck and
shoulder, persistent muscle spasm, and limitation of motion of the left shoulder and neck. He
reviewed appellant’s diagnostic reports and noted cervical spondylosis at C4-5 and C5-6 with
apparent effacement and impingement of the nerve root on the left side.
Upon examination of appellant’s neck, Dr. Gaddis observed intense palpable and painful
muscle spasm in the left trapezius and cervical paraspinous muscles and obvious hypertrophy of
the left trapezius muscle. He also noted decreased range of motion of the left shoulder joint in
flexion, abduction, and extension, and limited rotation internally and externally. Dr. Gaddis
diagnosed cervical injury resulting in cervical dystonia, post-traumatic segmental dystonia
secondary to the work injury, bilateral carpal tunnel syndrome, ulnar neuropathy of the left
shoulder, and cervical spondylosis. He indicated that appellant was totally unable to perform her
duties as a mail carrier due to limitations with her left arm and neck.
Dr. Man Q. Le, Board-certified in anesthesiology and pain medicine, also treated
appellant and in progress notes dated August 26, 2013 to January 7, 2014 related her complaints
of pain in the neck, left shoulder, and lower back. He provided a history of the August 26, 2010
employment injury and the medical treatment she received. Upon examination of appellant’s
cervical spine, Dr. Le observed tenderness in the midline throughout the entire cervical spine and
tenderness off midline only on the left and moderate-severe in the trapezius. Sensation was
normal. Upon examination of appellant’s left shoulder, Dr. Le reported swelling and tenderness
and moderately limited range of motion. Muscle strength and sensation was normal. Dr. Le
diagnosed shoulder joint pain, cervical radiculopathy, cervicalgia, cervical spondylosis without
myelopathy, and low back pain.
By decision dated February 3, 2014, the OWCP hearing representative affirmed in part
and remanded in part the May 31, 2013 termination decision. She found that, at the time of the
May 31, 2013 decision, OWCP properly determined that appellant’s work-related disability had

4

ceased based on Dr. Cenac’s January 14, 2013 referee medical report.
The hearing
representative further noted that, subsequent to the decision, appellant provided additional
medical evidence which required further development. On remand, the district office was
instructed to provide Dr. Cenac with the new medical reports from Dr. Gaddis and Dr. Le and to
request a supplemental report from Dr. Cenac on whether the new medical reports changed his
prior opinion concerning appellant’s August 26, 2010 work-related injury.
In a February 25, 2014 supplemental report, Dr. Cenac indicated that he reviewed
Dr. Gaddis’ two reports and found “no evidence … that there was any objective evidence of a
cervical or shoulder injury.” He explained that all of Dr. Gaddis’ findings of pain to palpation
and limitation of motion were subjective. Dr. Cenac further reported that there was no evidence
in Dr. Le’s records of any identifiable objective findings, but only “continued subjective
complaints.” He noted that his opinion remained the same, specifically that appellant had
“bizarre complaints not substantiated by objective physical findings.”
Dr. Le continued to treat appellant and in progress notes dated February 4 to May 27,
2014 related her complaints of bilateral shoulder and low back pain. He reviewed her history
and conducted an examination. Dr. Le reported tenderness and muscle spasms in the cervical
spine and passive range of motion. Examination of appellant’s left shoulder revealed tenderness
over the rotator cuffs and muscle spasm in the trapezius. Muscle strength and sensation were
normal. Dr. Le diagnosed cervical radiculopathy, cervicalgia, cervical spondylosis without
myelopathy, and shoulder joint pain.
Appellant provided February 21 and July 28, 2014 reports by Dr. Gaddis. Dr. Gaddis
indicated that she had suffered a neck injury on the job in August 2010 and had since suffered
from persistent pain and muscle spasm on the left side of her neck extending into the top of the
left shoulder. He reported that diagnostic studies revealed the presence of cervical disc disease.
Upon examination of appellant’s neck, Dr. Gaddis observed hypertrophy and bony hard spasm of
the left trapezius and cervical paraspinous muscles and tenderness to palpation. Examination of
appellant’s left shoulder revealed that she was unable to bring the left shoulder in abduction or
flexion above shoulder level. Dr. Gaddis diagnosed segmental dystonia of the left neck,
secondary to work-related injury and fall, and persistent muscle spasm and pain with cervicalgia
and cervical disc disease.
Dr. Samir Patel, Board-certified in anesthesiology and pain management, also treated
appellant and in September 15 and October 15, 2014 narrative reports, described the August 26,
2010 employment injury and subsequent medical treatment. He noted her complaints of neck
pain radiating down her left shoulder and left upper extremity to the fingers and low back pain.
Upon examination, Dr. Patel reported severe muscle spasm in the left deltoid, left trapezoid, and
left paracervical spinal muscles. Strength and tone were normal. Dr. Patel diagnosed dystonia,
cervical radiculopathy, cervical spondylosis without myelopathy, and lumbar spondylosis.
By de novo decision dated October 31, 2014, OWCP reaffirmed the termination of
appellant’s wage-loss compensation benefits effective June 2, 2013. It found that the special
weight of the medical evidence was represented by Dr. Cenac, who determined that her workrelated disability had ceased.

5

Appellant requested a hearing before an OWCP hearing representative. She submitted a
November 6, 2014 progress note by Dr. Gaddis, who provided examination findings of obvious
palpable tender muscle spasms extending into the left trapezius and left cervical paraspinous
muscles. Dr. Gaddis diagnosed cervical disc disease and cervicalgia with persistent muscle pain
and spasm.
In a January 20, 2015 narrative report, Dr. Patel noted that appellant had been under his
care since September 15, 2014 for treatment of an August 26, 2010 work-related injury. He
related that an updated MRI scan of the lumbar spine showed small bilateral posterolateral disc
protrusions at L2-3 through L4-5 and facet arthritis most prominent at L4-5 and L5-S1. Dr. Patel
further reported that a December 30, 2014 MRI scan of the cervical spine revealed reversal of
lordosis C3 through C6 and spondylosis changes present predominantly at C4-5, greater than
C3-4 and C5-6. He opined that appellant had not reached maximum degree of medical
improvement. Dr. Patel provided progress notes dated November 13 and December 4, 2014.
On February 20, 2015 appellant requested authorization for neck spine fusion surgery.
OWCP referred appellant’s claim, along with an updated statement of accepted facts
(SOAF), to an OWCP medical adviser to determine whether surgery was medically necessary to
treat her work-related conditions. In a March 9, 2015 report, the medical adviser noted
appellant’s history of ongoing neck pain and left cervical radiculopathy symptoms related to the
August 26, 2010 employment injury. He reviewed her history and provided examination
findings. The medical adviser reported that the requested surgery was within the realm of the
accepted medical practice and was necessary to treat appellant’s accepted conditions.
OWCP authorized cervical surgery for appellant’s accepted conditions.
A hearing was held on June 18, 2015. Counsel noted that OWCP had authorized cervical
surgery on April 30, 2015 for appellant’s accepted conditions. He asserted that the fact that
OWCP had now authorized cervical fusion surgery supported that OWCP’s termination decision
was premature and incorrect. Counsel alleged that the fact that appellant needed surgery
demonstrated that she still suffered residuals of her condition and required further medical
treatment. Appellant also described her work duties as a letter carrier and explained that due to
her current symptoms in her neck, back, and left upper extremity she was not able to perform her
job.
Appellant underwent cervical surgery on June 19, 2015. She requested wage-loss
compensation while recovering from surgery. OWCP paid disability compensation beginning
June 19, 2015 and returned appellant to the periodic rolls.
In a decision dated September 9, 2015, the OWCP hearing representative again affirmed
in part and set aside in part the October 31, 2014 termination decision. He determined that at the
time of the May 31, 2013 termination decision, OWCP made a correct determination based on
the weight of medical evidence of record at the time. The hearing representative found,
however, that the additional medical evidence appellant provided after the termination of
appellant’s wage-loss compensation benefits warranted additional development of the claim to
determine whether her benefits should be reinstated. Appellant’s case was remanded for OWCP

6

to provide Dr. Cenac with an updated SOAF and the new medical reports in order for him to
provide a supplemental report addressing whether she remained disabled from work and whether
she was entitled to wage-loss compensation for the period May 31, 2013 through June 18, 2015.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 It may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to his or her employment.5 The right to medical benefits for an accepted condition
is not limited to the period of entitlement for disability compensation.6 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which require further medical treatment.7 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.8
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.9 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.10 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.11
ANALYSIS
OWCP determined that a conflict in medical opinion evidence existed between
appellant’s treating physicians, Drs. Dennis and Mitchell, who continued to support appellant’s
need for medical treatment due to her August 26, 2010 employment injury and her resultant
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
6

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
7

A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
10

20 C.F.R. § 10.321.

11

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

7

disability for work, and the second opinion examiner, Dr. Loupe, who found that she was
capable of returning to her regular-duty position. It referred appellant to Dr. Cenac for an
impartial medical examination to resolve the conflict in medical opinion evidence regarding
whether she continued to suffer residuals of her employment injury and was unable to work.
In a January 14, 2013 report, Dr. Cenac described that on August 26, 2010 appellant fell
backwards when she was attacked by a pet iguana at work. He noted that she accepted
conditions for lumbar sprain, lumbosacral spondylosis without myelopathy, displacement of
cervical intervertebral disc, and left shoulder sprain. Dr. Cenac discussed appellant’s medical
treatment and related her current complaints of lower lumbar, left shoulder, and neck pain. Upon
examination of appellant’s cervical and lumbar spines, he reported that palpation revealed
nonphysiologic complaints. Dr. Cenac noted that her rigidity limited the examination. Upon
examination of her left shoulder, he observed normal reflexes, but diminished heel reflexes
bilaterally and diminished sensation in the S1 distribution bilaterally. Dr. Cenac indicated that
appellant’s grip strength testing was not valid as she gave no effort with the use of the
dynamometer involving the left upper extremity. He noted that Waddell tests were multiple and
positive consistent with symptom magnification and illness behavior. Dr. Cenac agreed with
Dr. Loupe’s opinion that appellant was able to return to regular duty and that she was no longer
in need of further medical treatment. In a February 25, 2014 supplemental report, he opined that
upon review of new medical reports his opinion remained the same that there were no objective
examination findings to substantiate any resultant work-related disability.
The Board finds that Dr. Cenac’s January 14, 2013 and February 25, 2014 reports were
entitled to the special weight of the medical opinion evidence and establish that appellant’s
employment-related disability had ceased as of June 2, 2013. Dr. Cenac provided an accurate
history of injury about the August 26, 2010 employment injury and reviewed her medical
records. He performed a thorough, clinical examination and provided findings on examination
regarding appellant’s cervical, lumbar, and left shoulder. Dr. Cenac opined that her complaints
were mostly subjective in nature and that there were no objective findings to support that she
remained disabled from work due to her August 26, 2010 employment injury. Accordingly, the
Board finds that Dr. Cenac’s medical opinion was sufficient for OWCP to justify the termination
of appellant’s wage-loss compensation effective June 2, 2013.
On appeal, counsel alleges that OWCP decision was wrong because compensation should
have been paid. As noted above, however, Dr. Cenac’s opinion was entitled to the special
weight of the medical opinion evidence as an impartial medical examiner and established that
appellant was not disabled as of June 2, 2013 as a result of the August 26, 2010 employment
injury. Appellant has not submitted any objective rationalized medical evidence to establish that
she had any work-related disability causally related to the August 26, 2010 employment injury
effective June 2, 2013.
Because the Board’s jurisdiction is limited to reviewing final, adverse decisions of
OWCP and OWCP has not issued a final decision on the issue of appellant’s continuing
disability, this issue is not before the Board at this time.12
12

20 C.F.R. §§ 501.2(c) and 501.3(a).

8

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective June 2, 2013.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2015 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: August 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Montgomery, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-2144
Issued: June 5, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant filed a timely appeal of a June 9, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her emotional condition
claim and a September 2, 2011 nonmerit decision. 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 merit and nonmerit issues of the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
developed an emotional condition due to factors of her federal employment; and (2) whether
OWCP properly denied appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2010 appellant, then a 52-year-old ultrasound medical technician, filed a
notice of occupational disease alleging that she developed stress, depression, frustration, severe
anxiety and work-related post-traumatic stress disorder. She attributed her condition to the
requirement that she stay past her scheduled dismissal time as she was unable to leave at the end
of her shift due to an overflow of patients. Appellant stated that the employing establishment
was short-handed and that her supervisor would not allow her to leave when her shift ended.
Appellant submitted notes from the medical clinic stating that on December 1, 2010 she
presented a note from her physician limiting her work schedule to her normal work hours with no
overtime. On November 2, 2010 Keith S. Hughes, a Board-certified family practitioner, stated
that she should not work overtime due to her mental health. On November 24, 2010 William C.
Freeman, M.D., stated that appellant should not work any overtime due to medical reasons for
two months. On December 3, 2010 Dr. Hughes completed a certification of serious health
condition in conjunction with her request for leave under the Family and Medical Leave Act. He
stated that appellant could not perform overtime or on-call duty and diagnosed post-traumatic
stress disorder.
Appellant submitted e-mails pertaining to the scheduling of patients for ultrasounds. In
an e-mail dated December 3, 2010, she requested that Connie L. Smith, supervisor, abide by her
physician’s restrictions and not schedule appointments such that appellant was required to work
overtime. On July 8, 2010 appellant protested that her on-call pay was removed from the entire
night when she did not respond to calls to her home telephone or being paged on her pager
number.
By letter dated February 18, 2011, OWCP requested additional factual and medical
evidence in support of appellant’s claim. In a statement dated February 21, 2011, appellant
stated that she was a veteran with post-traumatic stress disorder from spousal abuse and military
sexual trauma, an attempted rape and sexual harassment by her supervisor during her military
career. She stated that her health was precarious due to metabolic syndrome, extremely high
cholesterol as well as diabetes.
Appellant alleged that she was overworked, that she had asked for help and been
promised help for five years, but still worked by herself. She stated that her physician
recommended no overtime for two months, but the recommendation was not honored by the
employing establishment. Appellant noted that her regular hours were Monday through Friday
from 8:00 a.m. until 4:30 p.m. She stated that she was frequently pressured to stay past her shift,
with physicians adding patients at 4:29 p.m. Appellant stated that there were not enough
technicians to cover ultrasound calls resulting in delays in ultrasounds. She stated that
Ms. Smith and John L. Marshall, supervisors, pressured her to add more patients to the schedule
causing her stress. Appellant stated that patients were admitted and added to her schedule when
she returned from her scheduled days off resulting in the add-ons to the booked schedule. She
noted that weekend patients were directed to appear Monday morning at 8:00 a.m., but were not
informed that they would have to be worked into the schedule. These patients then frequently
became upset with appellant due to the wait, while patients with scheduled appointments also
became irate due to delays. Appellant stated that she was the only technician performing many

2

lengthy examinations. She stated that her supervisor tried to coerce her into working overtime
by adding patients at the end of the day. Appellant stated that her average day was more than 10
patients, plus add-ons from the emergency room, clinics and intensive care unit. She alleged that
her supervisors did not help to regulate patient flow by informing doctors that the table was
booked. Appellant noted on one occasion that she was an hour late leaving and was unable to
pay her power bill on time resulting in no power for her for two weeks. She stated that, when her
direct supervisor gave her a direct order to stay overtime, she was afraid that she would be found
insubordinate if she left and fired. Appellant alleged that she was unable to find assistance for
venous studies which required a second person to squeeze the legs for augmentation and
approximately an hour to scan both legs. She noted that she was instructed to have a chaperon
for ultrasound of scrotum, but was required to search for volunteers and if no one was available
she was frequently sexually harassed when performing these studies by herself. Appellant noted
that the patient population frequently required help to access the table either through lifting or
positional assistance and that she was also forced to search for volunteers. She alleged that she
was required to perform x-ray calls even though she had not performed x-rays for over 10 years.
Appellant stated that she requested to be removed from this duty but this request was denied.
She stated that she had no control over her schedule and was required to work in the x-ray
department which resulted in rescheduling her patients.
Appellant stated that patients, nurses and doctors yelled at her due to waiting times. She
stated that she was completely overwhelmed, going as fast as she could, but that her speed was
never fast enough. Appellant stated that she was subjected to sarcasm, antagonism, intimidation,
harassment, ridicule and retaliation on a daily basis. She stated that coworkers questioned her
sick leave usage. Appellant alleged that Mr. Marshal, a supervisor, asked why she did not wear
make-up as he liked eye candy. She stated that she reported sexual harassment to her supervisor
including “Ferman, a coworker,” reaching inside her bra, feeling and squeezing her breasts as
well as asking to see them. Appellant reported that a supervisor kept chocolate on his desk for
all the “moody” women and stated that one woman was always on her period. She noted that he
made her the butt of his jokes by telling coworkers that she was “too dumb to pass the registry
certification test.” Appellant alleged that her supervisor accused her of being “slutty” and
looking at naked pictures of men at work. She also alleged that she was discriminated against
through the denial of a bonus.
Appellant submitted e-mails in support of her claim. In an e-mail dated March 24, 2010,
she stated that three examinations had been rescheduled and that she already had add-ons.
Vichai Chaichamcheep responded and stated that this was an unresolved chronic issue and asked
whether additional qualified ultrasound staff could be requested. Appellant corresponded with
Stephen Pursley on October 6, 2010 and stated that she had 17 patients and stayed until 6:00 p.m.
Mr. Pursley suggested some ultrasound help. On December 3, 2010 appellant informed her
supervisors that she was not to work overtime in accordance with her physician’s orders.
Mr. Marshall refused to pay appellant an on-call subsidy on June 16, 2010 as she did not respond
to pages. Appellant checked her pager and the system indicated that she was not paged. She
requested that he correct the error in her paycheck. Mr. Marshall refused and appellant alleged
that she was treated differently from others as she was not paged and her on-call pay was
removed for the entire night. On September 16, 2009 appellant requested that clerks call the
patients and inform them when no technician was available. On September 18, 2009

3

Mr. Marshall noted that appellant examined 8 patients and performed 10 examinations 3 of
which transferred from another facility.
There was a series of e-mails dated January 18, 2010, which appellant alleged were from
Ferman regarding whether appellant would have sex with him. On August 3, 2010 and
February 10, 2011 appellant sent an e-mail and listed her issues with scheduling. Mr. Marshall
responded and suggested that Ms. Smith only perform tests on emergency and ward patients
when appellant is using annual leave.
In an e-mail dated February 16, 2011, Sandra Melton, a supervisor, requested that
appellant change her sick leave requests from January 26 through 28, 2011 to a request for
annual leave as she had no sick leave available.
In a report dated December 16, 2010, Dr. Daniel C. Clark, a licensed psychologist,
provided testing results and diagnosed generalized anxiety disorder, post-traumatic stress
disorder -- chronic, panic disorder without agoraphobia, major depressive disorder, sexual abuse
of an adult, victim by history and physical abuse of an adult, victim by history.
In a note dated February 3, 2011, Dr. William C. Freeman, a Board-certified psychiatrist,
stated that he initially examined appellant on November 24, 2010. He recommended that she be
excused from any overtime work due to medical reasons.
By decision dated June 9, 2011, OWCP denied appellant’s claim for an emotional
condition on the grounds that she had not submitted any medical evidence relating a diagnosed
condition to her employment.
Appellant requested reconsideration on July 11, 2011. She submitted evidence of
appointments with Bobby J. Dunn, a licensed clinical social worker. Appellant also submitted
copies of prescriptions from Dr. Freeman.
By decision dated September 2, 2011, OWCP declined to reopen appellant’s case for
review of the merits on the grounds that she failed to submit any relevant new evidence in
support of her request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between

4

the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between
the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.5 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.6 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.7 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
2

Lourdes Harris, 45 ECAB 545, 547 (1994).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Robert W. Johns, 51 ECAB 136 (1999).

7

Cutler, supra note 4.

8

Id.

5

assigned work duties of the employee and are not covered under FECA.9 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.10 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.11
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision. Contrary to OWCP’s June 9,
2011 decision, appellant has submitted medical evidence of a preexisting military serviceconnected emotional condition. Dr. Hughes diagnosed post-traumatic stress disorder on
December 3, 2010. Furthermore, Dr. Clark diagnosed generalized anxiety disorder, posttraumatic stress disorder -- chronic, panic disorder without agoraphobia, major depressive
disorder, sexual abuse of an adult, victim by history and physical abuse of an adult victim by
history on December 16, 2010. As appellant has submitted medical evidence of a diagnosed
emotional condition, OWCP is obligated to consider her factual allegations and determine
whether she has alleged and substantiated any compensable factors of employment.
OWCP, as part of its adjudicatory function, must make findings of fact regarding which
working conditions are deemed compensable factors of employment and are to be considered by
the physician when providing an opinion on causal relationship and which working conditions
are not deemed factors of employment and may not be considered. If a claimant does implicate a
factor of employment, it should then determine whether the factual evidence of record
substantiates that factor. When the matter asserted is a compensable factor of employment and
the evidence establishes the truth of the matter asserted, OWCP must base its decision on an
analysis of the medical evidence.12 The Board has found that when OWCP does not make
findings on the compensability of factors alleged, then the case should be remanded to OWCP to
determine whether the incidents constitute compensable employment factors and, if so, whether
the medical evidence establishing that appellant’s condition was causally related to compensable
work factors.13
The Board finds that the case should be remanded to OWCP to consider the factors of
employment alleged by appellant and to make findings of whether she has implicated and
substantiated a compensable employment factor. After this and such other development as it
deems necessary, OWCP should issue a de novo decision as to whether she sustained an

9

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

10

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
11

Roger Williams, 52 ECAB 468 (2001).

12

M.D. 59 ECAB 211 (2007); Albert K. Ignacio, 50 ECAB 121 (1998).

13

See Ignacio, supra note 12.

6

emotional condition in the performance of duty causally related to compensable factors of her
federal employment.14
CONCLUSION
The Board finds that this case is not in posture for a decision and remands for further
development of the factual evidence by OWCP.
ORDER
IT IS HEREBY ORDERED THAT the September 2 and June 9, 2011 decisions of
Office of Workers’ Compensation Programs are set aside and remanded for further development
consistent with this decision of the Board.
Issued: June 5, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Due to the disposition of this issue, it is not necessary for the Board to address the denial of merit review in
OWCP’s September 2, 2011 decision.

7


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

)
)
)
)
)
)
)
)

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

Docket No. 15-1629
Issued: July 3, 2017

Case Submitted on the Record

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

JURISDICTION
On July 27, 2015 appellant filed a timely appeal from an April 30, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish more than two
percent permanent impairment of her right upper extremity, for which she previously received a
schedule award.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence after OWCP’s April 30, 2015 decision. The Board cannot consider
evidence which was not before OWCP at the time it issued its final decision. Thus, the Board is precluded from
reviewing this evidence. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision and order are incorporated herein by reference. The
relevant facts are as follows.
Appellant, a 63-year-old former secretary, has an accepted occupational disease claim
(Form CA-2) for bilateral carpal tunnel syndrome, right de Quervain’s/radial styloid
tenosynovitis, right hand/wrist tenosynovitis, right lateral epicondylitis, and right shoulder
disorder of the bursae and tendons. These conditions arose on or about February 22, 2008.
Appellant voluntarily retired effective May 31, 2011.
In a December 29, 2011 report, Dr. Samuel J. Chmell, an attending Board-certified
orthopedic surgeon, indicated that, under Table 15-23 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A.,
Guides), appellant had 23 percent permanent impairment of her left upper extremity due to
carpal tunnel syndrome. He advised that, under Table 15-32 through Table 15-34, she had 56
percent permanent impairment of her right upper extremity due to limited range of motion
(ROM) of her right wrist, elbow, and shoulder.4
On April 25, 2013 Dr. Chmell noted that his prior impairment rating was based not only
on carpal tunnel syndrome, but also on tenosynovitis of the right hand and wrist, disorder of
bursae/tendons of the right shoulder, and lateral epicondylitis of the right elbow.
Appellant filed a claim for a schedule award (Form CA-7) due to her accepted work
injuries. In a February 7, 2014 decision, OWCP determined that she had failed to establish
permanent impairment warranting a schedule award compensation.
OWCP subsequently referred appellant for a second opinion examination and impairment
evaluation to Dr. Allan Brecher, a Board-certified orthopedic surgeon. In a June 30, 2014 report,
Dr. Brecher determined that appellant’s carpal tunnel syndrome, epicondylitis, and right shoulder
tendinitis had resolved and, therefore, she had no permanent impairment due to these conditions.
He also determined that appellant continued to have right de Quervain’s tenosynovitis and
concluded that she had two percent permanent impairment of her right upper extremity due to
this condition under the standards of the sixth edition of the A.M.A., Guides. Dr. Brecher noted,
“[W]e look at Table 15-5, she has a class 1, grade D, functional history 2, physical exam[ination]
2, clinical studies 3, and [QuickDASH] score 52 gives her [two] percent upper extremity
impairment. Therefore, [appellant’s] regional impairment is [two] percent.”5
3

Docket No. 14-1896 (issued January 15, 2015).

4

Dr. Chmell noted that, with respect to her right wrist, appellant had three percent permanent impairment due to
45 degrees of flexion, three percent permanent impairment due to 40 degrees of extension, and two percent
permanent impairment due to 10 degrees of ulnar deviation.
5

Regarding Dr. Chmell’s April 25, 2013 report, Dr. Brecher indicated that in the past Dr. Chmell had used the
ROM impairment rating method, but noted that this was “not relevant as we are supposed to use diagnosis-related
impairment.”

2

In an August 4, 2014 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, indicated that he agreed with Dr. Brecher’s assessment
that appellant had two percent permanent impairment of her right upper extremity under the
standards of the sixth edition of the A.M.A., Guides.
In an August 14, 2014 decision, OWCP granted appellant a schedule award for two
percent permanent impairment of her right upper extremity. The award ran for 6.24 weeks from
June 27 to August 9, 2014 and was based on the June 30, 2014 report of Dr. Brecher and the
August 4, 2014 report of Dr. Garelick.
Appellant filed an appeal with the Board on August 25, 2014. In a January 15, 2015
decision, the Board set aside OWCP’s August 14, 2014 decision and remanded the case for
further development of the medical evidence.6 The Board found that there were various
deficiencies in Dr. Brecher’s June 30, 2014 report that needed to be clarified. The Board noted
that Dr. Brecher rated the right shoulder tendinitis condition using the diagnosis-based
impairment (DBI) rating method, under Table 15-5 of the sixth edition of the A.M.A., Guides,
without explaining why he chose this diagnosed condition as the primary condition for rating.
The Board further indicated that Dr. Brecher did not provide adequate explanation for how he
chose the grade modifier for Functional History (GMFH), grade modifier for Physical
Examination (GMPE), and grade modifier for Clinical Studies (GMCS). Additionally, the Board
found that Dr. Brecher indicated that various accepted conditions other than de Quervain’s
tenosynovitis had resolved, including bilateral carpal tunnel syndrome and right epicondylitis,
but he did not provide adequate rationale as to why he opined that they had resolved. Lastly, the
Board determined that Dr. Brecher did not adequately explain why he discounted Dr. Chmell’s
use of the ROM impairment rating method, rather than the DBI impairment rating method. The
Board directed OWCP to carry out development to clarify these matters and issue a decision
regarding whether appellant has more than two percent permanent impairment of her right upper
extremity.
On remand OWCP referred the case back to Dr. Brecher for a supplemental opinion
clarifying the matters raised by the Board in its January 15, 2015 decision.
In a March 13, 2015 report, Dr. Brecher provided an assessment of appellant’s
impairment under the sixth edition of the A.M.A., Guides. He indicated that appellant had
de Quervain’s tenosynovitis, rather than right shoulder tendinitis, and that the portion of
Table 15-2 regarding digital stenosing tenosynovitis (class 1) provided the correct standards to
use for this diagnosis. Dr. Brecher opined that appellant’s bilateral carpal tunnel and shoulder
conditions had resolved based on her subjective complaints and the findings on physical
examination. He noted that, under Table 15-7 through Table 15-9, appellant had a GMFH of 2
due to a moderate problem with a history of difficulty using her right hand, decreased sensation,
and decreased ROM in the right thumb. Dr. Brecher also noted a GMPE of 2 due to moderate,
clearly palpatory findings including a positive Finkelstein test. Finally, he found a GMCS of 2
due to clinical confirmation of moderate de Quervain’s tenosynovitis. Dr. Brecher advised that

6

See supra note 3.

3

application of the net adjustment formula meant that appellant had eight percent permanent
impairment of her right upper extremity.
On April 6, 2015 Dr. Garelick, again serving as an OWCP medical adviser, reviewed the
supplemental opinion of Dr. Brecher. He indicated that he disagreed with Dr. Brecher’s
conclusion that appellant had eight percent permanent impairment of her right upper extremity.
Dr. Garelick noted that Dr. Brecher properly indicated that appellant had ongoing de Quervain’s
tenosynovitis, but improperly assigned the DBI category for the diagnosis of stenosing
tenosynovitis in Table 15-2 of the sixth edition of the A.M.A., Guides. He opined that
de Quervain’s tenosynovitis fell under the DBI category for a wrist sprain in Table 15-3.
Dr. Brecher found that the most appellant could be awarded for her permanent impairment under
this DBI category was two percent of the right upper extremity.
By decision dated April 30, 2015, OWCP found that appellant did not meet her burden of
proof to establish more than two percent permanent impairment of her right upper extremity for
which she previously received a schedule award. It based this determination on Dr. Garelick’s
April 6, 2015 review of Dr. Brecher’s March 13, 2015 report.7
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with Director of the Office of Workers’
Compensation Programs.8 Section 8107 of FECA 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.9 FECA, however, does not specify the manner by which the percentage loss
of a member, function, or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. Through its implementing regulations, OWCP adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.10
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
7

After appellant filed this appeal on July 27, 2015, OWCP issued a March 17, 2016 decision granting her an
award for five percent permanent impairment of her left upper extremity and an additional five percent permanent
impairment of her right upper extremity. This decision, however, is null and void as the Board and OWCP may not
simultaneously have jurisdiction over the same case. OWCP may not issue a decision regarding the same issue on
appeal before the Board, in this instance, a schedule award for upper extremity impairment. See Russell E. Lerman,
43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3).
8

See 20 C.F.R. §§ 1.1-1.4.

9

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
10

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

4

5 U.S.C.

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).11 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.12
ANALYSIS
The issue on appeal is whether appellant has met her burden of proof to establish more
than two percent permanent impairment of her right upper extremity for which she previously
received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.13
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.14 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board has observed that
physicians interchangeably cited to language in the first printing or the second printing when
justifying use of either ROM or DBI methodology. Because OWCP’s own physicians were
inconsistent in the application of the A.M.A., Guides, the Board found that OWCP could no
longer ensure consistent results and equal justice under the law for all claimants.15
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the April 30, 2015 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
12

Isidoro Rivera, 12 ECAB 348 (1961).

13

T.H., Docket No. 14-0943 (issued November 25, 2016).

14

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

15

Supra note 13.

5

CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: July 3, 2017
Washington, DC

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

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

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

6