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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1495
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On August 3, 2020 appellant, through counsel, filed a timely appeal from a March 6, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The case record contains August 13, 2019 and January 16, 2020 decisions in which OWCP denied appellant’s
request that the acceptance of her claim be expanded to include additional cervical conditions causally related to her
accepted February 24, 2015 employment injury. As more than 180 days has elapsed from the issuance of these
decisions to the filing of this appeal, the Board lacks jurisdiction over the denial of appellant’s expansion claim. See
20 C.F.R. §§ 501.2(c) and 501.3.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 22, 2018, as she no longer had
disability or residuals causally related to her accepted February 24, 2015 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing disability or residuals
after September 22, 2018 causally related to her accepted February 24, 2015 employment injury.
FACTUAL HISTORY
On March 2, 2015 appellant, then a 23-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 24, 2015 she sustained a back injury when she slipped and
fell on ice while in the performance of duty. She stopped work on February 25, 2015. In
March 2015 appellant first returned to work after her original work stoppage and, in May 2015,
she stopped work again. OWCP paid her wage-loss compensation for disability from work on the
supplemental rolls for the period May 18 through December 22, 2015.
On January 14, 2016 Dr. Marc Cohen, a Board-certified orthopedic surgeon, performed
OWCP-authorized back surgery, including open laminectomy and lateral recess decompression at
L5-S1, and posterolateral discectomy at L3-4 and L5-S1. In April 2016 appellant returned to lightduty work on a full-time basis.
OWCP accepted appellant’s claim for intervertebral disc disorders of the lumbosacral
region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of the cervical
region.
In a November 5, 2017 report, Dr. Michael Binder, a Board-certified anesthesiologist,
noted that appellant primarily complained of neck and lower back pain. He indicated that, upon
physical examination, appellant exhibited diminished range of motion of the cervical and lumbar
spine. Dr. Binder diagnosed left cervical post-traumatic sprain/strain; left cervical radiculopathy
at C6 versus bilateral cervical post-traumatic facet syndrome at the C4-5, C5-6, and C6-7; lumbar
post-traumatic sprain/strain; and left lumbar radiculopathy at L3-4 versus bilateral lumbar posttraumatic facet syndrome at the L3-4, L4-5, and L5-S1. He opined that these conditions were
related to the February 24, 2015 employment injury.
In March and July 2018 OWCP referred appellant for second opinion examinations and
evaluations with Dr. Melvin Vigman, a Board-certified neurologist, and Dr. Andrew Farber, a
Board-certified orthopedic surgeon. It provided each physician with a statement of accepted facts
(SOAF) and a series of questions and requested that they provide an opinion regarding whether
appellant continued to have disability or residuals causally related to her accepted February 24,
2015 employment injury.
In an April 5, 2018 report, Dr. Vigman discussed appellant’s factual and medical history,
noting that the SOAF indicated that the accepted conditions were “intervertebral discs disorders
with radiculopathy, lumbar region L3-4 and L4-5 and cervical region and dorsopathy.” He further
noted, “I presume that means dorsal spine.” Dr. Vigman advised that appellant currently
complained of back pain and shooting pain into the left lateral thigh. He reported the findings of
the physical examination he performed on April 4, 2018, noting that appellant’s upper extremity
examination showed normal strength in all muscle groups proximally and distally, normal
2

cutaneous sensation at dermatomes C5 through C8, and 1+ reflexes. On lower extremity
examination, appellant had normal strength in all muscle groups proximally and had normal
cutaneous sensation dermatomes L3 through S1 bilaterally. Dr. Vigman noted that, on flexing her
lower back to 90 degrees, appellant complained of left paraspinal discomfort. He provided a
diagnosis of no neurological disease, damage, or dysfunction.
After his review of the medical records, Dr. Vigman opined that there did not appear to
have been a true indication for the January 14, 2016 lumbar surgery. He indicated that the
magnetic resonance imaging (MRI) scans of record obtained on the date of injury demonstrated a
normal lumbar MRI scan and did not indicate that there were herniated lumbar discs and did not
confirm central spinal stenosis. Dr. Vigman maintained that these diagnoses were used to justify
the surgery, but that the surgery was not done for neurological purposes. He indicated that the
“objective aspects of the case are totally normal neurologically” and did not support the subjective
symptomatology. Dr. Vigman indicated that the lumbar spine MRI scans of record “did not
support neurological problems in this case.” He noted “the current diagnoses” from a neurological
standpoint did not exist and there was no neurological diagnosis, neurological damage, or
dysfunction. Dr. Vigman indicated, “[i]n my opinion, the question of the work-related conditions
having resolved: the work-related conditions never caused a neurological problem. Appellant has
reached maximum medical improvement [MMI] neurologically with no permanency.”
Dr. Vigman noted that, from a neurological standpoint, appellant was capable of full-time work
without any restrictions. In an April 4, 2018 work capacity evaluation (Form OWCP-5c), he
indicated that appellant was able to perform her regular job without restrictions.
In a July 2, 2018 report, Dr. Farber discussed appellant’s factual and medical evidence,
noting that she continued to complain of radicular symptoms in her left upper and left lower
extremities. He noted that, upon physical examination of the cervical spine, appellant was
nontender about the cervical spine and had a negative Spurling’s test. Upon examination of the
lumbar spine, there was no erythema or evidence of infection around the incision area from the
January 14, 2016 lumbar surgery and straight leg raising was negative bilaterally. Dr. Farber did
not find neurovascular deficits of the extremities. He indicated that appellant was not presently
suffering from disabling residuals of the accepted conditions and did not have a “current disability
based on the examination of today.” Dr. Farber concluded that appellant did not require further
medical treatment as she had reached MMI and was capable of returning to her date-of-injury work
without restrictions. In a July 2, 2018 Form OWCP-5c, he indicated that appellant was able to
perform her regular job without restrictions.
OWCP then requested that Dr. Farber clarify his July 2, 2018 report by providing a more
detailed discussion regarding appellant’s work-related residuals and disability. In a July 25, 2018
supplemental report, Dr. Farber indicated that appellant was not presently suffering from disabling
residuals of the accepted conditions based upon the July 2, 2018 physical examination. He noted
that, upon examination of the cervical spine, she was nontender about the cervical spine, range of
cervical motion was normal in all planes, and Spurling’s test was negative. Examination of the
lumbar spine revealed no erythema or evidence of infection and normal range of motion during
extension and side bending. Dr. Farber advised that flexion was decreased, a finding he believed
was normal given that appellant was status post lumbar laminectomy. Appellant had negative
straight leg raise bilaterally and there was no evidence of radiculopathy on examination.
Dr. Farber indicated that appellant had reached MMI and there was no need for further treatment.
He opined that appellant was not disabled and was capable of returning to her date-of-injury job
without restrictions.
3

In a notice dated July 26, 2018, OWCP advised appellant that it proposed to terminate her
entitlement to wage-loss compensation and medical benefits as she no longer had residuals or
disability causally related to her accepted February 24, 2015 employment injury. It informed her
that the weight of the medical opinion evidence regarding work-related residuals/disability rested
with the opinions of Dr. Vigman and Dr. Farber, OWCP’s referral physicians. OWCP provided
appellant 30 days to submit evidence and argument challenging the proposed termination action.
Appellant submitted an August 20, 2018 report in which Dr. Cohen indicated that, after the
January 14, 2016 surgery, she did have improvement with reduction in some of her leg pain , but
still had residual issues with respect to numbness and intermittent pain in the left leg. Dr. Cohen
further explained, “[u]nfortunately the patient was left with persistent back and left leg
radiculopathy…. She had pain going from the buttocks to the thigh to the calf to the foot with
associated tingling and numbness.” Dr. Cohen noted that appellant was left with a two-level
lumbar disc surgery that caused “functional and work-related permanency” with respect to her
ability to forward and laterally bend, to lift, and to sit or stand in one position for any extreme
period. Regarding appellant’s post-surgery condition, he opined that appellant’s injuries were
permanent in nature and that appellant was unable to return back to her job without restrictions.
Dr. Cohen noted that he was completely in disagreement with the opinions of Dr. Vigman and
Dr. Farber, which had been provided to him.
By decision dated September 21, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective September 22, 2018, as she no longer had disability
or residuals causally related to her accepted February 24, 2015 employment injury.
On October 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During a hearing held on January 29,
2019, counsel argued that the opinions of Dr. Vigman and Dr. Farber were not well rationalized,
or in the alternative, there was a conflict in the medical opinion evidence between their reports and
those of appellant’s attending physicians, Dr. Binder and Dr. Cohen.
OWCP received a January 3, 2019 report from Dr. Joseph W. Dryer, a Board-certified
orthopedic surgeon, who indicated that appellant did not sustain any permanent lumbar injuries
due to the February 24, 2015 accident.
By decision dated April 4, 2019, OWCP’s hearing representative affirmed the
September 21, 2018 termination decision.4
By decision dated March 6, 2020, OWCP denied modification of its April 4, 2019
termination decision.

4

OWCP’s hearing representative also found that there was a conflict in the medical opinion evidence regarding
appellant’s expansion claim and remanded the case to OWCP for further development, including referral of appellant
for an impartial medical examination. Based on the July 18, 2019 report of Dr. Lydia Shajenko, a Board-certified
neurologist serving as an impartial medical examiner (IME), OWCP issued August 13, 2019 and January 16, 2020
decisions denying appellant’s request that the acceptance of her claim be expanded to include additional cervical
conditions causally related to her accepted February 24, 2015 employment injury. As noted above, the Board lacks
jurisdiction over the denial of appellant’s expansion claim. See supra note 3.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.
In his April 5, 2018 report, Dr. Vigman determined that appellant did not have any
residuals of her accepted employment injuries and could return to her date -of-injury job without
restrictions. However, he did not provide any notable discussion of the conditions accepted in
connection with the February 24, 2015 employment injury, i.e., intervertebral disc disorders of the
lumbosacral region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of
the cervical region. Dr. Vigman did not provide any discussion of when and how the accepted
employment injuries had resolved.
Moreover, in portions of his report, Dr. Vigman suggested that appellant did not actually
sustain all of the accepted employment conditions. He noted, “[i]n my opinion, the question of
the work-related conditions having resolved: the work-related conditions never caused a
neurological problem.” Dr. Vigman indicated that the magnetic resonance imaging (MRI) scans
of record obtained on the date of injury demonstrated a normal lumbar MRI scan and did not
indicate that there were herniated lumbar discs and therefore did not confirm central spinal
stenosis. However, OWCP had accepted that appellant sustained a lumbar condition that could be
characterized as having caused a neurological problem, i.e., the accepted lumbar radiculopathy
stemming from the L3-4 and L5-S1 discs. In addition, Dr. Vigman provided an opinion that the
January 14, 2016 lumbar surgery, which was authorized by OWCP was not necessitated by an
accepted employment injury. The Board has held that the findings of an OWCP referral physician
or IME must be based on the factual underpinnings of the claim, as set forth in the SOAF. 8
OWCP’s procedures provide that when an OWCP referral physician, IME, or district medical
adviser (DMA) renders a medical opinion based on an SOAF, which is incomplete or inaccurate
or does not use the SOAF as the framework in forming his or her opinion, the probative value of

5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See A.D., Docket No. 20-0553 (issued April 19, 2021).

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the opinion is seriously diminished or negated altogether. 9 Given his failure to acknowledge all
the accepted employment conditions, Dr. Vigman’s opinion is of diminished probative value.
The Board further finds that Dr. Farber’s opinion also is not sufficiently well-rationalized
to justify the termination of appellant’s entitlement to wage-loss compensation and medical
benefits, effective September 22, 2018. Dr. Farber indicated, in reports dated July 2 and 25, 2018,
that appellant did not have any residuals of her accepted employment injuries and could return to
her date-of-injury job without restrictions. However, his opinion in this regard consisted of brief
conclusory statements without adequate explanation. Dr. Farber also did not provide any notable
discussion of the conditions accepted in connection with the February 24, 2015 employment injury
or explain when and how these conditions had resolved. In fact, in a portion of his July 25, 2018
report, he suggested that appellant still had residuals of the OWCP-authorized January 14, 2016
lumbar surgery. Dr. Farber advised that appellant’s lumbar flexion was decreased, a finding he
believed was related to that lumbar surgery. After Dr. Farber produced his July 2, 2018 report,
OWCP requested that he provide a supplemental report, which included a more detailed discussion
regarding appellant’s work-related residuals and disability. However, the July 25, 2018
supplemental report did not provide significant additional discussion in this regard and essentially
summarized examination findings contained in his July 2, 2018 report.
For these reasons, the Board finds that OWCP did not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective September 22, 2018.10
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3a(10)
(October 1990).
10

In light of the Board’s finding regarding Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.T., Appellant
and
U.S. POSTAL SERVICE, HOUSTON
PERFORMANCE CLUSTER, Houston, TX,
Employer
__________________________________________

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

Docket No. 12-1324
Issued: November 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2012 appellant filed a timely appeal from the May 10, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant did not have permanent
impairment entitling him to schedule award compensation.
FACTUAL HISTORY
OWCP accepted that on April 9, 2009 appellant, then a 51-year-old letter carrier,
sustained a lumbar sprain while loading a postal vehicle. He worked in a limited-duty position
1

5 U.S.C. §§ 8101-8193.

and then returned to regular work in late May 2009. Appellant later began working on a parttime basis.
On April 6, 2010 appellant submitted a claim for a schedule award due to his accepted
injury. In support of his claim, he submitted a June 22, 2010 report in which Dr. Ernest T.
Roman, an attending Board-certified internist, reported findings on examination and diagnosed
lumbar intervertebral disc syndrome and lumbar radiculopathy (left L5). Dr. Roman indicated
that appellant reached maximum medical improvement on June 9, 2010 and concluded that he
had an eight percent permanent impairment of his whole person. He stated that, under Table
17-4 (Lumbar Spine Regional Grid) of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009), appellant’s
intervertebral disc herniation equaled a default value of seven percent impairment under class 1.
Dr. Roman stated that appellant had a physical examination score of +1 which raised his total
whole person impairment to eight percent.
On December 16, 2010 OWCP referred appellant’s case to Dr. Ronald Blum, a Boardcertified orthopedic surgeon serving as an OWCP medical adviser, for additional evaluation of
the extent of his claimed impairment. On December 28, 2010 Dr. Blum reviewed Dr. Roman’s
June 22, 2010 report and recommended that Dr. Roman be asked to provide an impairment
evaluation based on abnormalities found in appellant’s lower extremities resulting from the
accepted condition in the lumbar spine that would support the presence of impairment in the
lower extremities. Dr. Blum indicated that, if Dr. Roman was unable to provide such
clarification, appellant should be sent for a second opinion evaluation. In a December 29, 2010
letter, OWCP asked Dr. Roman to provide a clarifying opinion on impairment but he did not
respond to this request.
In June 2011, OWCP referred appellant to Dr. Ahmed A. Khalifa, a Board-certified
physical medicine and rehabilitation physician, for an examination and opinion on his permanent
impairment under the standards of the sixth edition of the A.M.A., Guides.
In a June 30, 2011 report, Dr. Khalifa described appellant’s medical history, detailed his
findings on physical examination and diagnosed sacroiliac/lumbosacral sprain and degenerative
disc and facet disease. He indicated that appellant had reached maximum medical improvement
as his condition had not changed over the past several months and there was no indication that
surgery or any other active treatment would make a difference in this condition. Dr. Khalifa
stated that, under Table 17-4 (Lumbar Spine Regional Grid) on page 570 of the sixth edition of
the A.M.A., Guides, appellant fell under the default value for class 1 due to chronic recurrent
lower back pain and symptomatic degenerative disc disease. Under Table 17-6 on page 575,
appellant fell under grade modifier 2 for function history because he had symptoms with normal
activity and, under Table 17-7, he fell under grade modifier 0 because there was no specific
motor or sensory deficit found on examination. Dr. Khalifa stated that, because there was no
segmental instability or surgical intervention with hardware, appellant fell under grade modifier
0 for clinical studies when applying Table 17-9 on page 581. He then applied the Net
Adjustment Formula to these values to arrive at a net adjustment value of 1 and stated, “Results
class 1 with an adjustment of 1. From Table 17-10 on page 582, impairment class 1, Grade D =
6 [percent] [whole person] = 15 [percent] [lower extremity].” Dr. Khalifa concluded that
appellant had 15 percent permanent impairment “of lower extremity.”

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On January 9, 2012 Dr. Blum indicated that he had reviewed the June 30, 2011 report of
Dr. Khalifa. He noted that Dr. Khalifa utilized Table 17-10 on page 582 to find that appellant
had a class 1 impairment of six percent of the whole person, but indicated that his application of
Table 17-10 was improper as the table was to be used only as an example as to how to calculate
grade modifiers and did not present values for lumbar spine disease.2 Dr. Blum stated that
Dr. Khalifa provided an evaluation of the lumbar spine to derive at a whole person impairment,
which he then converted to a lower extremity impairment. He noted that the spine and whole
person are not scheduled members under FECA and therefore he was unable to recommend
impairment for appellant based on impairment of the spine or whole person. Prior to concluding
that appellant had a zero percent permanent impairment of his right leg and a zero percent
permanent impairment of his left leg, Dr. Blum stated:
“Under the provisions of [FECA], awards for permanent impairment may not be
paid for the spine. However, such awards can be paid for impairment of the upper
or lower extremities caused by injury to a spinal nerve. Dr. Khalifa recommended
whole person impairment and converted this value to lower extremity. He also
stated the motor and sensory function to the lower extremities is intact. This
means to me that [Dr. Khalifa] does not identify any impairment in the lower
extremities resulting from the accepted conditions in the lumbar spine. It is for
this reason that it is my opinion the claimant does not have objective evidence for
impairment in the lower extremities resulting from the accepted work[-]related
condition in the lumbar spine.”
In a May 10, 2012 decision, OWCP determined that appellant did not have permanent
impairment of his legs entitling him to schedule award compensation. It based this
determination on the January 9, 2012 report of Dr. Blum.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
2

Dr. Blum also indicated that the grade modifier calculations that Dr. Khalifa provided were incorrect.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

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

3

A schedule award is not payable for the loss, or loss of use, of a part of the body that is
not specifically enumerated under FECA. Neither, FECA nor its implementing regulations
provide for a schedule award for impairment to the back, spine or to the body as a whole.
Furthermore, the back is specifically excluded from the definition of organ under FECA.7
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain while loading a postal vehicle.
In a May 10, 2012 decision, it determined that appellant did not have permanent impairment of
his legs entitling him to schedule award compensation. OWCP based this determination on the
January 9, 2012 report of Dr. Blum, a Board-certified orthopedic surgeon who served as an
OWCP medical adviser. Dr. Blum had evaluated a June 30, 2011 report of Dr. Khalifa, a Boardcertified physical medicine and rehabilitation physician who served as an OWCP referral
physician.
The Board finds that OWCP properly relied on the January 9, 2012 report of Dr. Blum to
determine that appellant did not have permanent impairment entitling him to schedule award
compensation.
In his report, Dr. Blum explained that Dr. Khalifa inappropriately derived an impairment
rating for appellant’s back/spine (under Table 17-4 on page 570 of the sixth edition of the
A.M.A., Guides) because neither FECA nor its implementing regulations provide for a schedule
award for impairment to the back or spine.8 He also noted that Dr. Khalifa improperly utilized
Table 17-10 on page 582 to find that appellant had a class 1 impairment of six percent of the
whole person, because this table was to be used only as an example as to how to calculate grade
modifiers and did not present values for lumbar spine disease.9 Dr. Blum stated that a schedule
award could be granted for the legs if it was shown that a permanent impairment extended into
the legs from a work-related back condition. However, he explained that the findings of record
did not show any impairment of appellant’s legs which stemmed from the accepted condition of
lumbar sprain. Dr. Blum noted that Dr. Khalifa acknowledged this fact when he stated that no
specific motor or sensory deficit of appellant’s legs was found on examination. In this regard, he
stated, “This means to me that [Dr. Khalifa] does not identify any impairment in the lower
extremities resulting from the accepted conditions in the lumbar spine. It is for this reason that it
is my opinion the claimant does not have objective evidence for impairment in the lower
extremities resulting from the accepted work[-]related condition in the lumbar spine.”10

7

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

8

Id.

9

Dr. Blum also pointed out that impairment ratings for the whole person were not allowed under FECA. See
supra note 7.
10

The Board notes that Dr. Blum also properly determined that a June 22, 2010 whole person impairment rating
of Dr. Roman, an attending Board-certified internist, was not properly calculated in accordance with the relevant
standards of the A.M.A., Guides. After Dr. Roman did not respond to an OWCP request for clarification, appellant
was appropriately referred to Dr. Khalifa for further evaluation.

4

Appellant did not submit any medical evidence showing that he is entitled to schedule
award compensation and OWCP properly denied his claim. He 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 OWCP properly determined that appellant did not have permanent
impairment entitling him to schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Administratrix of the Estate of J.W.,
Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 12-1077
Issued: December 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 11, 2012 appellant, through her representative, filed a timely appeal from the
December 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied an additional 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 the employee had more than a 15 percent impairment of his right
arm due to the accepted wrist and shoulder conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 22, 1994 the employee, a 50-year-old welder, sustained a traumatic injury in the
performance of duty while shoveling shot into a bucket. OWCP accepted his claim for right
carpal tunnel syndrome. In 2001 the employee received a schedule award for a five percent
impairment of his right upper extremity due to mild numbness following surgery.
In a subsidiary claim, OWCP File No. xxxxxx123, OWCP accepted that the employee
developed right rotator cuff syndrome as of April 1989, for which he received a schedule award
for a 10 percent impairment of the right upper extremity.2
The employee filed a claim for an additional schedule award. Following his death in
2005, appellant, the employee’s widow, pursued the claim.
In a February 2, 2006 report, revised as of June 17, 2011, Dr. David O. Weiss, an
osteopath, reviewed the employee’s record. Using the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2009), he found that the
employee had a seven percent impairment of the right upper extremity due to entrapment
neuropathy of the median nerve. Based on electrodiagnostic testing in 2002, Dr. Weiss assigned
a grade modifier of 3 for test findings. Based on the history reported on March 21, 2003, he
assigned a grade modifier of 2 for history and based on decreased sensory/grip on September 15,
2003, he assigned a grade modifier of 3 for physical examination. Following the procedures in
Table 15-23, page 449 of the A.M.A., Guides, Dr. Weiss found that appellant had default
impairment value of eight percent, which he reduced by one percent for a functional history of
pain and medication.
Dr. Weiss also determined that the employee had a 12 percent impairment of the right
upper extremity due to acromioclavicular joint arthropathy with distal clavicle resection. After
indicating a default impairment value of 10 percent, he assigned a grade modifier of 1 for
functional history, 2 for physical examination (observed and palpatory findings on September 15,
2003), and 2 for clinical studies, for a net adjustment of +2.
On December 1, 2011 an OWCP medical adviser reviewed Dr. Weiss’ evaluation. He
explained that the 2002 electrodiagnostic testing showed motor distal latency to be high normal
and sensory distal latency prolonged. This did not qualify as axon loss. Rather, the testing
showed only a sensory conduction delay, for a grade modifier of 1. Significant intermittent
symptoms warranted a grade modifier of 2, and physical findings on at least one occasion
indicated a grade modifier of 3. The average showed a default impairment value of five. As
Dr. Weiss found, a functional history of pain and medication reduced this by one percent, for a
final rating of four percent due to right carpal tunnel syndrome. The medical adviser agreed with
Dr. Weiss on the 10 percent default impairment due to shoulder arthropathy. Grade modifiers
were one for functional history, two for physical examination (slight instability, subluxable), and
two for clinical studies. This increased the default value to 11 percent. Combining the 4 percent
2

In another subsidiary claim, OWCP File No. xxxxxx714, OWCP accepted that the employee developed left
carpal tunnel syndrome as of January 1995, for which he received a schedule award for a 10 percent impairment of
his left upper extremity.

2

impairment at the wrist with the 11 percent impairment at the shoulder, the medical adviser
concluded that the employee had a total right upper extremity impairment of 15 percent.
In a December 23, 2011 decision, OWCP denied an additional schedule award. It found
that the weight of the medical evidence rested with evaluation of its medical adviser and showed
no impairment greater than the total 15 percent previously awarded.
On appeal, appellant’s representative argues that a conflict in medical opinion warrants
referral to an impartial medical specialist under 5 U.S.C. § 8123(a).
LEGAL PRECEDENT
The schedule award provision of FECA3 and the implementing regulations4 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.5
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 regulations as
the appropriate standard for evaluating schedule losses.6 As of May 1, 2009, the sixth edition of
the A.M.A., Guides is used to calculate schedule awards.7
ANALYSIS
Dr. Weiss, the osteopath evaluating the employee’s impairment on behalf of appellant,
found that the employee had a 7 percent right upper extremity impairment due to carpal tunnel
syndrome and a 12 percent right upper extremity impairment due to acromioclavicular joint
injury or disease status post distal clavicle resection, for a combined impairment of 18 percent.
The medical adviser found a 4 and 11 percent impairment respectively, for a combined
impairment of 15 percent.
The only difference in the carpal tunnel ratings is with respect to the grade modifier for
test findings under Table 15-23, page 449 of the A.M.A., Guides. Dr. Weiss indicated that
electrodiagnostic testing in 2002 showed axon loss, while the medical adviser explained that it
showed only a sensory conduction delay.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

6

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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).

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Dr. Weiss offered no rationale to explain how the test findings showed axon loss,
indicative of grade modifier 3. By contrast, the medical adviser explained how the test findings
showed a conduction delay, indicative of grade modifier 1. He noted that the test showed motor
distal latency to be high normal and sensory distal latency prolonged. The Board has reviewed
this test.8 The testing was interpreted to show mild-to-moderate right median nerve compression
at the wrist, not axon loss. Accordingly, the Board finds that the weight of the medical evidence
rests with the medical adviser. The employee had a four percent right upper extremity
impairment due to carpal tunnel syndrome.
The only difference in the shoulder ratings is with respect to the grade modifier for
physical examination under Table 15-8, page 408. Dr. Weiss noted that a September 15, 2003
examination showed a moderate problem in observed and palpatory findings. The medical
adviser noted that appellant’s shoulder problem was mild.
The September 15, 2003 examination9 showed the employee doing reasonably well.
Shoulder findings appeared normal or mild. Appellant had negative impingement, negative arc
of pain, 5/5 internal and external rotation strength. There was some tenderness over the lateral
epicondyle, modestly decreased grip strength and a subjective decrease in sensibility in the
median nerve distribution.
The tenderness did not relate to the shoulder and Dr. Weiss did not explain how grip
strength or a subjective decrease in sensibility in the median nerve distribution reflected a
moderate shoulder problem. The Board finds, therefore, that the September 15, 2003
examination does not clearly support a grade modifier of 2 under Table 15-8, page 408.
The medical adviser’s grade modifier is given greater weight because it is region specific
under Table 15-8. The Board has reviewed the physical examination findings since the
employee’s right shoulder surgery, with special attention to the most recent findings. The
evidence does not support a grade 2 or moderate instability that is easily subluxable. Indeed,
there is no evidence of a slight instability in the right shoulder. The employee is consistently
described as doing well following his shoulder surgery. Giving the employee the benefit of a
doubt, the Board finds that the weight of the medical evidence supports no more than a mild
problem indicative of grade modifier 1. Accordingly, the Board finds that the employee had a
diagnosis-based 11 percent impairment of the right upper extremity due to acromioclavicular
joint injury or disease status post clavicle resection.
Upper extremity percentages in the same extremity are combined.10 Using the Combined
Values Chart on page 604 of the A.M.A., Guides, a 4 percent impairment and an 11 percent
impairment combine for a 15 percent total impairment of the right upper extremity, which is

8

OWCP File No. xxxxxx714.

9

Id.

10

A.M.A., Guides 389 (steps in performing an impairment rating), 419 (if there are multiple upper extremity
impairments they are combined except for motion impairments of the digits (other than thumb) and multiple digit
impairment).

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what the employee previously received. For this reason, OWCP properly denied an additional
schedule award. The Board will affirm OWCP’s December 23, 2011 decision.
Appellant’s representative argues there is a conflict in medical opinion. But a closer look
at the impairment ratings and the medical record shows otherwise. The medical record better
supports the grade modifiers chosen by the medical adviser. Dr. Weiss’ evaluation does not
carry the same probative weight.
CONCLUSION
The Board finds that the employee had no more than a 15 percent impairment of his right
upper extremity due to his accepted wrist and shoulder conditions.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Warrenton, VA, Employer
__________________________________________

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

Docket No. 07-892
Issued: July 25, 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 January 30, 2007 appellant filed a timely appeal from a January 3, 2007 merit
decision of the Office of Workers’ Compensation Programs, finding that he did not sustain an
injury while in the performance of duty. 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 established that he sustained left ear hearing loss and
tinnitus while in the performance of duty on September 4, 2006, as alleged.
FACTUAL HISTORY
On September 4, 2006 appellant, then a 39-year-old air traffic control specialist, filed a
traumatic injury claim. On that date he experienced a headache and discomfort and
reverberation in his left ear as a result of a loud triple pop in his ear at the 322.3 frequency level
while at work. Appellant stated that the cause of the pop was unknown. Michael Hawrysko, a

witness and operations manager, stated on appellant’s claim form that a review of the voice
recording revealed an unknown tone present on the frequency. He also stated that he received
notice of appellant’s alleged injury on September 4, 2006.
By letter dated October 4, 2006, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It addressed the additional factual and medical evidence
he needed to submit to establish his claim.
In an October 14, 2006 letter, appellant further described the September 4, 2006 incident.
Around 1917 local time, he heard a triple clapping sound in his left ear where his headset was
located. Appellant immediately lost hearing in the ear for two to five seconds and saw that
frequency 322.3 was the only one flashing which indicated sound. He stated that his hearing
returned and he continued to work but noticed that he had a severe headache on the left side of
his head. Appellant’s supervisor gave him Tylenol for his headache. He related that he stopped
performing his air traffic duties when his supervisor asked him to train someone. When
appellant moved over to the trainer position and engaged in conversation with his coworkers, he
realized that his voice sounded as if he were still talking into his headset. He stated that he then
knew something was wrong. Appellant requested a traumatic injury claim form from his
supervisor who also gave him an authorization for examination and/or treatment (Form CA-16).
On the next day, he sought medical treatment from his primary care physician who referred him
to Dr. R. Gregory Weaver, a Board-certified otolaryngologist. Appellant described his
symptoms. He stated that an audiogram performed for Dr. Weaver revealed that his previously
excellent hearing in both ears was only excellent in his right ear.
Dr. Weaver’s September 28, 2006 report found no abnormalities. He recommended
further testing. In a September 11, 2006 report, Dr. Weaver referred to the findings of an
audiogram of the same date. The audiogram found that appellant sustained ear pain and tinnitus.
Dr. Weaver’s October 13, 2006 report found that an audiogram and magnetic resonance imaging
(MRI) scan of appellant’s brain were normal.
In a September 15, 2006 medical report, Dr. Dominick S. Zito, an employing
establishment physician, stated that appellant was required to wear corrective lenses for distant
vision while performing his work duties. A September 6, 2006 prescription note which
contained an illegible signature, stated that appellant was unable to work until he was cleared by
an ear, nose and throat (ENT) specialist with whom he had an appointment on
September 11, 2006.
On November 1, 2006 the Office received a September 28, 2006 letter from Barbara Jo
Cogliandro, an air traffic manager, who contended that the September 4, 2006 incident did not
occur. Ms. Cogliandro reviewed an audiotape which did not reveal the presence of a tone as
alleged by appellant. She related that there was a “bing” tone at the beginning of the recording.
This was a standard tone for a position relief briefing when controllers were changing positions.
Ms. Cogliandro contended that the physician who treated appellant expressed doubt that his
condition was caused by the alleged employment incident.
In a September 4, 2006 memorandum, Mr. Hawrysko stated that on September 4, 2006 an
operations supervisor advised him of the alleged employment incident. He stated that he

2

reviewed the voice recording which revealed normal air traffic control communication. At the
2317Z frequency level, he noted an unidentified tone/clicking but it was not considered to be out
of the ordinary. A representative from the “SOC” advised Mr. Hawrysko that the frequency was
normal and that there were no tones dispersed on the frequency during the period in question.
Appellant advised Mr. Hawrysko that he was experiencing pain and discomfort in his left ear
which he believed was the result of the tone that he received at the 2317Z frequency level while
working the “OJAY” position. Mr. Hawrysko stated that he reviewed the voice recording a
second time and other than the tone/clicking present at 2317Z, the entire session of
communications was normal.
By decision dated November 3, 2006, the Office denied appellant’s claim on the grounds
that he did not establish that the claimed employment incident occurred at the time, place and in
the manner alleged and that he sustained a medical condition caused by the alleged incident. On
November 27, 2006 appellant requested an oral hearing before an Office hearing representative.
An October 18, 2006 form report and referral note of Dr. Richard E. Gardner, a Boardcertified otolaryngologist, stated that appellant sustained tinnitus and vertigo. Dr. Gardner’s
October 18, 2006 narrative report provided a history that appellant experienced sudden hearing
loss with onset of tinnitus and vertigo due to trauma to the left ear while working at the
employing establishment. He stated that appellant knew there was lightning in the area and that
he heard a crackle or popping in his left ear over his headphones. Dr. Gardner related that he
understood that a review of the audiotape revealed a single pop. He reported normal findings on
physical examination. Dr. Gardner opined that appellant presented with subjective difficulty
after an event at work and he reported a change in his hearing with ongoing tinnitus and episodic
vertigo. He ordered testing of appellant’s inner ear. In an October 25, 2006 note, Dr. Gardner
opined that appellant’s tinnitus may never resolve.
By decision dated January 3, 2007, the Office denied appellant’s claim on the grounds
that the evidence of record failed to establish that he sustained an injury causally related to
factors of his federal employment. The Office stated that this decision superseded its
November 3, 2006 decision because all of the medical evidence submitted by appellant was not
considered prior to the issuance of the November 3, 2006 decision.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
1

Following the issuance of the Office’s January 3, 2007 decision, appellant submitted additional evidence to the
Office. He also submitted evidence with his appeal to the Board. The Board, however, cannot consider this
evidence as its review of the case is limited to the evidence of record which was before the Office at the time of its
final decision. 20 C.F.R. § 501.2(c).
2

5 U.S.C. §§ 8101-8193.

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compensation is claimed are causally related to the employment injury.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 Establishing that a federal employee has sustained
a traumatic injury in the performance of duty involves two components. First, the employee
must submit sufficient evidence to establish that he actually experienced the employment
incident at the time, place and in the manner alleged.5 Second, the employee must submit
evidence, in the form of medical evidence to establish that the employment incident caused a
personal injury.6 The term injury as defined by the Act, refers to some physical or mental
condition caused by either trauma or by continued or repeated exposure to or contact with,
certain factors, elements or conditions.7
An employee who claims benefits under the Act has the burden of establishing the
occurrence of an injury at the time, place and in the manner alleged, by a preponderance of the
reliable, probative and substantial evidence.8 An injury does not have to be confirmed by
eyewitnesses in order to establish the fact that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.9 An employee has not met
his or her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.10 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established.11 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.12

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

5

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
6

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
7

Elaine Pendleton, supra note 3; 20 C.F.R. § 10.5(a)(14).

8

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

9

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

10

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

11

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

12

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

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ANALYSIS
Appellant alleged that he sustained hearing loss in his left ear on September 4, 2006 due
to exposure to loud noise while working as an air traffic control specialist for the employing
establishment. The Office initially denied appellant’s claim on November 3, 2006 finding that
he failed to establish that the injury occurred at the time and place and in the manner alleged. By
decision dated January 3, 2007, the Office vacated its November 3, 2006 finding and denied
appellant’s claim on the grounds that he failed to establish that the accepted employment
incident, exposure to noise, resulted in an injury. Thus, there is no dispute that appellant was
exposed to noise in his federal employment on September 4, 2006 while in the performance of
duty as alleged.
The Board, however, finds that appellant did not submit sufficient medical evidence to
establish that his left ear hearing loss and tinnitus were caused by the accepted employment
factor. As noted, Dr. Weaver’s September 11, 2006 report found that appellant sustained ear
pain and tinnitus based on an audiogram of the same date.13 In an October 18, 2006 form report
and referral note, Dr. Gardner found that appellant sustained tinnitus and vertigo. He opined in
an October 25, 2006 note that appellant’s tinnitus may never resolve. Neither Dr. Weaver nor
Dr. Gardner discussed how the diagnosed conditions were caused or aggravated by appellant’s
employment-related noise exposure. The Board has held that a medical opinion not fortified by
medical rationale is of little probative value.14 The reports and notes of Dr. Weaver and
Dr. Gardner are insufficient to establish appellant’s claim.
Dr. Weaver’s September 28, 2006 report found no abnormalities. In an October 13, 2006
report, he stated that appellant’s audiogram and MRI scan of the brain were normal. Dr. Weaver
did not opine that appellant sustained a medical condition causally related to the accepted
employment incident as supported by objective findings. The Board finds that Dr. Weaver’s
reports are insufficient to establish appellant’s claim.
Similarly, Dr. Gardner’s October 18, 2006 narrative report is insufficient to establish
appellant’s claim. As noted, in this report, Dr. Gardner provided a history of the September 4,
2006 employment incident. He also reported normal findings on physical examination.
Dr. Gardner opined that appellant presented with subjective difficulty after an event at work and
he reported a change in his hearing with ongoing tinnitus and episodic vertigo. Dr. Gardner did
not opine that appellant’s tinnitus and vertigo were caused by the accepted employment incident
of September 4, 2006 as supported by objective findings. Therefore, his report is insufficient to
establish appellant’s claim.

13

Where an employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. Tracey P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized
by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by the Office. See 20
C.F.R. § 10.300(c). The record is silent as to whether the Office paid for the cost of appellant’s examination or
treatment for the period noted on the form.
14

Michael E. Smith, 50 ECAB 313 (1999); Annie L. Billingsley, 50 ECAB 210 (1998).

5

Dr. Zito’s September 15, 2006 report stated that appellant was required to wear corrective
lenses for distant vision while performing his work duties. This evidence is not relevant to
appellant’s claim as Dr. Zito did not provide a reasoned medical opinion on the issue of whether
appellant’s left ear hearing loss and tinnitus were caused by the September 4, 2006 employment
incident. The Board finds that Dr. Zito’s report is not sufficient to establish appellant’s claim.
As noted, a September 6, 2006 prescription note found that appellant was totally disabled
until he was cleared by an ENT specialist who he was scheduled to see on September 11, 2006.
This note did not address whether appellant’s disability for work was causally related to the
accepted September 4, 2006 employment incident. The Board finds that it is insufficient to
establish appellant’s claim.
Appellant has not submitted rationalized medical evidence establishing that he sustained
left ear hearing loss and tinnitus in the performance of duty on September 4, 2006. He has failed
to meet his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained left ear hearing
loss and tinnitus while in the performance of duty on September 4, 2006, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 19-1779
Issued: March 9, 2021

Case Submitted on the Record

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

JURISDICTION
On August 23, 2019 appellant, through counsel, filed a timely appeal from an August 2,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right ankle
condition causally related to the accepted November 4, 2015 employment incident.
FACTUAL HISTORY
On March 28, 2017 appellant, then a 70-year-old contract specialist, filed a traumatic injury
claim (Form CA-1) alleging that on November 4, 2015 he injured his right ankle when he was
struck by the bar on a security gate while in the performance of duty.3 He did not stop work.
In a November 10, 2015 medical report, Dr. Joanna Shuman, a Board-certified podiatrist,
noted that appellant presented as a new patient with pain in the plantar left forefoot and reported
pain in the right lateral heel for several weeks. She diagnosed a punctate hyperkeratotic lesion on
the left foot.
In a development letter dated April 25, 2017, OWCP informed appellant of the deficiencies
in his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and provided a factual questionnaire for completion. OWCP afforded appellant 30 days to
respond. It sent a similar letter of even date to the employing establishment, requesting that it
answer a series of questions including whether the alleged injury occurred on employing
establishment premises.
OWCP subsequently received a January 6, 2016 medical report, Dr. Shuman noted that
appellant returned with a complaint of pain in the right heel after being struck by a security gate at
his work on the same morning. She noted that appellant reported that he had been previously
struck in a similar work incident on November 4, 2015. Appellant further reported to her that,
while his pain was decreased at his prior visit, he had experienced intense pain in his right heel
over the holidays that incapacitated him for two days.
By decision dated May 26, 2017, OWCP denied appellant’s claim, finding that he had not
established the factual component of his claim as he had not responded to its April 25, 2017
development letter. It concluded, therefore, that the requirements had not been met to establish an
injury as defined by FECA.
On March 22, 2018 appellant, through counsel, requested reconsideration.
In an attached response to OWCP’s development questionnaire, dated November 29, 2017,
appellant asserted that there were a number of errors committed by the employing establishment
in filing his claim. He noted that he was originally advised not to file a claim when he was first
injured on November 4, 2015 and that when his claim was eventually submitted, the date of injury
was incorrectly listed as January 6, 2016. Appellant further indicated that he subsequently filed

Appellant has a prior occupational disease claim, filed on January 24, 2017, alleging that he sustained an “impact
injury resulting in Achilles Tendinitis of the right ankle.” OWCP assigned that claim File No. xxxxxx513. Appellant’s
claims have not been administratively combined.
3

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an occupational disease claim (Form CA-2) at the suggestion of a human resource specialist and
he now believes that both claims should be consolidated.
Appellant provided details of his injuries. He noted that he experienced immediate pain to
his right ankle following the claimed injury and his pain increased to the point that he had periods
where he was barely able to walk or walked with a limp, particularly when traversing stairs.
Appellant indicated that driving to and from the office exacerbated his pain, but during days he
was out of the office or teleworked, he was off his feet and his pain subsided. He asserted that he
had no preexisting injury to his right ankle and that he had not sustained any other injury following
the date of injury to the date he first reported it.
By decision dated June 8, 2018, OWCP accepted that the November 4, 2015 incident
occurred, as alleged. However, it denied appellant’s claim, finding that there was no medical
evidence containing a medical diagnosis in connection with the November 4, 2015 employment
incident.
On May 6, 2019 appellant, through counsel, requested reconsideration.
In support thereof, appellant submitted an October 3, 2018 narrative report, wherein
Dr. Shuman noted that appellant’s first appointment with her was November 10, 2015, a few days
after being struck on the right heel by a security gate at work. She indicated that, during this
appointment, appellant had complained of pain in his right foot, but she could not elicit pain in the
right heel at the time. Dr. Shuman opined that, although she treated his left foot for a punctate
hyperkeratotic lesion, the pain in the left foot was unrelated to the cause of pain in the right foot.
She acknowledged that her November 10, 2015 report incorrectly noted that appellant had
experienced pain in his right foot for weeks when he had only experienced the pain for days
following the November 4, 2015 incident.
Dr. Shuman explained that decreasing motion and resting of the foot and ankle could have
decreased inflammation and pain in a traumatized bone and; therefore, it could not be inferred that
resting of the foot healed appellant’s injury. She noted that his description of the increased level
of pain between November 10, 2015 and January 6, 2016 appointments were consistent with a
blunt force trauma injury to the Achilles tendon and the resulting tendinitis. Dr. Shuman indicated
that appellant’s pain increased after driving to and from work, but decreased after resting for the
weekend. She further indicated that an ultrasound of the right foot performed in September 2016
showed calcification of the right Achilles tendon. Dr. Shuman opined that, in her medical opinion,
appellant sustained a significant injury to the Achilles tendon in his right foot in early
November 2015 and that it caused Achilles tendinitis.
By decision dated August 2, 2019, OWCP modified its prior decision, finding that
appellant had established that the November 4, 2015 employment incident occurred as alleged.
However, appellant’s claim remained denied because the medical evidence of record was
insufficient to establish that his diagnosed Achilles tendinitis was causally related to the accepted
November 4, 2015 employment incident.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 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.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 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 specific employment factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right ankle
condition causally related to the accepted November 4, 2015 employment incident.

4

Supra note 2.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

In a November 10, 2015 medical report, Dr. Shuman diagnosed a punctate hyperkeratotic
lesion on the left foot, but offered no history of injury, diagnosis, or opinion regarding causal
relationship between appellant’s right foot injury and the accepted November 4, 2015 employment
incident. The Board has held that medical evidence, which does not offer an opinion on causal
relationship, is of no probative value to the issue of causal relationship.11 Although Dr. Shuman
noted that appellant had pain in his right heel, her report is still insufficient to satisfy his burden of
proof because pain is a symptom, not a specific medical diagnosis.12
In a January 6, 2016 medical report, Dr. Shuman related that appellant was struck in his
right heel again by a security gate on the same day and in the same manner as it happened on
November 4, 2015, but she did not provide a firm diagnosis or render an opinion on causal
relationship in connection with the November 4, 2015 incident. As previously noted, the Board
has held that medical reports, which does not provide a firm diagnosis and render an opinion on
causal relationship, are of no probative value and are insufficient to establish the claim. As
Dr. Shuman’s report fails to explain how the November 4, 2015 incident caused a diagnosed injury
to appellant, this report is also insufficient to establish appellant’s claim.
In support of his request for reconsideration, appellant submitted an October 3, 2018 report
from Dr. Shuman. In this report, Dr. Shuman noted that when she initially saw appellant on
November 10, 2015 she erred in reporting that he had pain for weeks prior when he had only
complained of pain for a few days following the November 4, 2015 employment incident. She
explained that his description of an increased level of pain between his November 10, 2015 and
January 6, 2016 appointments was consistent with a blunt force trauma injury to the Achilles
tendon and the resulting tendinitis. Dr. Shuman concluded that, in her medical opinion, appellant
did sustain a significant injury to the Achilles tendon in his right foot in early November 2015 and
that it caused Achilles tendinitis. While Dr. Shuman provided an affirmative opinion on causal
relationship, her opinion is insufficiently rationalized. Dr. Shuman failed to provide a
pathophysiological explanation as to how the accepted employment incident either caused or
contributed to appellant’s Achilles tendinitis.13 Without explaining how the mechanism of the
accepted employment incident caused or aggravated the diagnosed condition, this opinion lacks
the specificity and detail needed to establish appellant’s claim. Furthermore, Dr. Shuman has
indicated that appellant had been struck by the security gate on November 4, 2015 and again on
January 6, 2016, but failed to distinguish the effects of each injury when she diagnosed Achilles
tendinitis. Thus, the Board finds that the October 3, 2018 report is insufficient to meet appellant’s
burden of proof.14

11

D.B., Docket No. 19-0514 (issued January 27, 2020); L.T., Docket No. 18-1603 (issued February 21, 2019).

12

I.M., Docket No. 19-1038 (issued January 23, 2020); Y.S., supra note 10.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
L.C., supra note 5; R.D., Docket No. 18-1551 (issued March 1, 2019).
14

See T.R., Docket No. 18-1272 (issued February 15, 2019).

5

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 10.607.15
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right ankle
condition causally related to the accepted November 4, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 2, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.16
Issued: March 9, 2021
Washington, DC

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

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

15

Upon return of the case record, OWCP shall administratively combine the present claim file with OWCP File
No. xxxxxx513.
16

Christopher J. Godfrey, Deputy Chief Judge, was no longer a member of the Board effective January 20, 2021.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY SYSTEMS COMMAND, Norfolk, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1793
Issued: February 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 9, 2016 appellant filed a timely appeal from a July 20, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an asthma attack in
the performance of duty on June 8, 2016, as alleged.
FACTUAL HISTORY
On June 9, 2016 appellant, then a 57-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that she had an asthma attack on June 8, 2016 due to wet carpet and
possible mold at work. She stopped work on the date of injury.
In a medical referral form dated June 8, 2016, Dr. Laura C. Kellogg, a Board-certified
family practitioner, noted that appellant could not breathe and she had a racing heart, the shakes,
and a burning throat and eyes. She found that appellant had an allergic reaction/anaphylaxis to
mold. Dr. Kellogg indicated by checking a box marked “yes” that her condition was
occupational. She restricted appellant’s activity until June 10, 2016 and advised that appellant
could not return to work until the carpet was dry and disinfected. In an addendum dated June 8,
2016, Dr. Kellogg advised that, after speaking to appellant’s supervisor for clarification,
appellant could not work for 48 hours. She recommended that appellant report to occupational
health on June 10, 2016 and, if cleared, then appellant could return to work on that date at a
different office location.
By letter dated June 10, 2016, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional factual and medical evidence. It also requested
that the employing establishment provide a list of potentially harmful substances to which
appellant had been exposed, the tasks she performed which resulted in exposure, and exposure
data. In addition, OWCP requested that it submit treatment notes if appellant was treated at an
agency medical facility.
In response to OWCP’s questions, the employing establishment noted that the entire
office area was 5,120 square feet with 20 overhead air ducts, one of which was placed at the back
of appellant’s work area. Appellant’s assigned cubicle was 18 feet away from where the water
leakage had occurred. The air conditioner began leaking during the afternoon on June 3, 2016,
which caused three ceiling tiles to fall. On June 6 and 7, 2016 appellant performed her regular
assigned duties at her desk. During the morning of June 8, 2016, she requested permission to go
to the medical unit. Appellant returned to work on June 14, 2016 for a follow-up medical
appointment. She was relocated to another building by management until the carpet had dried
and been cleaned as recommended by her physician. The employing establishment noted that
fans were brought in to dry the carpet and doors remained open for fresh air to circulate in the
building. It submitted a copy of appellant’s supply technician position description and a
Notification of Personnel Action (Form SF-50) for her position.
By decision dated July 20, 2016, OWCP denied appellant’s traumatic injury claim. It
found that the claimed work event did not occur as alleged. It noted that appellant had not
responded to the questions provided in its June 10, 2016 development letter. OWCP further
found that Dr. Kellogg did not provide a rationalized medical opinion explaining how the
claimed employment factors or incident directly caused or contributed to the claimed injury.

2

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 filed within 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.2 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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.5
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.6
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. 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.7 Neither the fact that
appellant’s condition became apparent during a period of employment nor, her belief that the
condition was caused by her employment is sufficient to establish a causal relationship.8
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

4

T.H., 59 ECAB 388 (2008).

5

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

6

Betty J. Smith, 54 ECAB 174 (2002).

7

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

8

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

ANALYSIS
Appellant alleged that she had an asthma attack after being exposed to wet carpet and
possible mold while in the performance of duty on June 8, 2016. OWCP found that she failed to
establish the factual component of her claim. The Board finds that the evidence of record
establishes that appellant was exposed to wet carpet at work on June 8, 2016, as alleged.
In her claim form, appellant identified her exposure to the wet carpet and possible mold
as the cause of her asthma attack. The employing establishment acknowledged that water had
leaked onto the carpet located 18 feet away from appellant’s cubicle when three ceiling tiles fell
as a result of an air conditioner leak on June 3, 2016. It noted that she was at work on June 8,
2016, the date she claimed she was exposed to wet carpet and possible mold, and that the carpet
continued to be wet when she returned to work on June 14, 2016 as she was relocated to another
building by management based on her physician’s recommendation until the carpet was dried
and cleaned. The employing establishment related that fans were used to dry the carpet and
doors were left open to allow fresh air to circulate in the building.
The Board finds that appellant’s statement is consistent with the surrounding facts and
circumstances in that she filed her claim the following day after the employment incident, that
she sought medical treatment on the same date as the employment incident, and that the
employing establishment acknowledged the occurrence of the work incident. Accordingly,
appellant has established that she was exposed to wet carpet on June 8, 2016.9
The Board further finds, however, that the medical evidence of record is insufficient to
establish that appellant sustained a medical condition causally related to the established June 8,
2016 exposure. Dr. Kellogg’s June 8, 2016 medical referral form reported appellant’s symptoms
and diagnosed allergic reaction/anaphylaxis to mold. She indicated by checking a box marked
“yes” that her condition was occupational and advised that appellant was unable to work through
June 10, 2016. Dr. Kellogg’s opinion is generally supportive of causal relationship, but is of
diminished probative weight because she did not support her opinion with sound medical
reasoning and there was no evidence of mold exposure. The Board has held that a checkmark in
response to a form question on causal relationship is insufficient, without medical rationale, to
establish causal relationship.10 Dr. Kellogg did not explain how the established exposure caused
or aggravated appellant’s asthma condition. Further, she did not provide a clear history of injury
as there was no mold exposure established,11 or identify any examination findings to support her
opinion on causal relationship. While Dr. Kellogg’s remaining June 8, 2016 addendum note
restated that appellant was unable to work for 48 hours, she did not state that her disability was
caused by the accepted exposure.12
9

See G.W., Docket No. 13-1943 (issued July 29, 2014).

10

B.M., Docket No. 15-1233 (issued October 1, 2015).

11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
12

A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

The Board finds that appellant has failed to submit any rationalized probative medical
evidence to establish that she had an asthma attack causally related to the June 8, 2016
employment incident. Appellant did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish an
asthma attack causally related to a June 8, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: February 6, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5