United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF STATE, FOREIGN
SERVICE, Washington, DC, Employer
__________________________________________

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

Docket No. 07-281
Issued: June 19, 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 November 6, 2006 appellant filed a timely appeal of a nonmerit decision of the Office
of Workers’ Compensation Programs dated July 6, 2006 denying his request for reconsideration
as it was not timely filed and failed to establish clear evidence of error. As the most recent
Office merit decision was issued on March 11, 2005, more than one year before the filing of this
appeal, the Board does not have jurisdiction to review the merits of the case pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly found that appellant’s request for
reconsideration was not timely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
On November 9, 2004 appellant, then a 47-year-old foreign affairs specialist, filed a
traumatic injury claim alleging that, on October 21, 2004, while on assignment in New Delhi,
India, he missed a step going down stairs, fell and strained his left knee. On the same date,

appellant sought medical attention from Dr. Pushpinder Singh Bajaj, a consultant orthopedic
surgeon and traumatologist specializing in sports medicine, arthroscopy and joint replacements.
Dr. Bajaj indicated that appellant complained of an injury to his left knee occurring three hours
before, that he tapped his knee, drained blood and applied a crepe bandage. In a note dated
December 29, 2004, appellant requested to be reimbursed for his expenses for this appointment,
noting that his insurance required that he pay a $200.00 deductible. In a medical note dated
December 16, 2004, Dr. Timothy J. Crimmins, a Board-certified internist, stated that there was
new damage almost all from the fall. Appellant also had a magnetic resonance imaging scan on
December 14, 2004 that was read as showing broad osteochondral contusion/fracture involving
the medial femoral condyle complete tear of the mid body and posterior horn of the medial
meniscus extending to the median meniscocapular margin, thickening and edema of the medial
collateral ligament and the acute complex consistent with an intermediate grade of injury of this
structure and lateral patellar offset Grade 3 to 4 chondromalacia patella of the internal patellar
facet.
By decision dated January 5, 2005, the Office denied appellant’s claim for the reason that
the evidence was not sufficient to establish that he sustained an injury as defined by the Federal
Employees’ Compensation Act.1 The Office noted that the evidence supports that the claimed
event occurred but that there was no medical evidence that provided a diagnosis which could be
connected to the events. On February 2, 2005 appellant requested reconsideration. In a decision
dated March 11, 2005, the Office reviewed his case on the merits and modified the prior decision
by finding that he had established an incident occurring within the performance of his duties.
However, appellant’s case was denied as a causal relationship had not been proven.
On March 24, 2006 appellant requested reconsideration. He indicated that he realized
that he was filing this a few days after the one year deadline, but indicated that he made his
intention to file a request for reconsideration known orally on February 3, 2006 in a conversation
with the Office. In support of his request for reconsideration, appellant submitted a receipt from
Dr. Bajaj indicating that he paid 9,500 rupees on October 21, 2004. He also submitted a
statement by Stacy Gilbert indicating that, as they were leaving for an off-site meeting, he fell on
some stairs. Ms. Gilbert noted that, as appellant had difficulty walking, he was sent to the
Embassy’s medical unit to have his foot examined before departing for the United States that
evening. Appellant also submitted a statement indicating that an hour or so after his injury he
could not walk unassisted and went to the United States Embassy medical unit for evaluation at
which time he was referred to a physician in New Delhi for further evaluation and treatment. He
noted that he paid 9,500 rupees in out-of-pocket expenses for this visit, which amounted to
approximately $200.00.
By decision dated July 6, 2006, the Office denied appellant’s request for reconsideration
as it was not timely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. §§ 8101-8193.

2

LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.2
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted the Office under section 8128(a) of the Act.3
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed.4 When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error. Office regulation and procedure provide that the Office will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth
in 20 C.F.R. § 10.607(a) if the claimant’s application for review shows clear evidence of error on
the part of the Office.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.6 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.7 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.8

2

20 C.F.R. § 10.607(a).

3

Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

4

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 99, 501-02 (1990).

5

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedures further provide: The term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that [the Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
6

Dorletha Coleman, 55 ECAB 143 (2003); Leon J. Modrowski, 55 ECAB 196 (2004).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

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ANALYSIS
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.9
A right to reconsideration within one year also accompanies any subsequent merit decision on
the issues, including a decision of the Board.10 The last merit decision in this case was issued on
March 11, 2005. As appellant’s March 24, 2006 request for reconsideration was submitted more
than one year after the last merit decision of record, the Board finds it was untimely.
Consequently, he must demonstrate clear evidence of error by the Office in denying his claim for
compensation.11
Appellant has not presented clear evidence of error on the part of the Office in issuing its
July 6, 2006 decision. He did not submit the type of positive, precise and explicit evidence
which manifests on its face that the Office committed an error. The Office denied appellant’s
claim for the reason that he had not established that the work-related incident caused his injury.
With his request for reconsideration, he submitted a receipt indicating that he paid Dr. Bajaj
9,500 rupees. However, this simply is evidence of payment by appellant, not evidence of any
causal relationship. Appellant also submitted statements by both himself and a witness to his
fall. These statements are evidence that the fall occurred. However, that fact is not in dispute.
The question of causal relationship is medical in nature and may only be resolved by rationalized
medical evidence. The Board finds that the statements are not medical evidence that links the
accepted work incident to an injury. Accordingly, the Board finds that the arguments and
evidence submitted by appellant in support of his request for reconsideration do not prima facie
shift the weight of the evidence in his favor, or raise a substantial question as to the correctness
of the March 11, 2005 decision. Thus, they are insufficient to demonstrate clear evidence of
error.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

9

20 C.F.R. § 10.607(a).

10

Robert F. Stone, 57 ECAB ___ (Docket No. 04-1451, issued December 22, 2005).

11

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB __ (Docket No. 06-380, issued June 26, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 6, 2006 is affirmed.
Issued: June 19, 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
__________________________________________
H.L., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Socorro, NM, Employer
__________________________________________

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

Docket No. 15-1887
Issued: February 4, 2016

Case Submitted on the Record

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

JURISDICTION
On September 14, 2015 appellant filed a timely appeal from an August 17, 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 his burden of proof to establish an injury causally
related to a June 30, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with his appeal. The Board, however, has no jurisdiction to review evidence
on appeal which was not before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 1, 2015 appellant, then a 55-year-old engineering equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that on June 30, 2015 he sustained a fibular fracture
as a result of climbing down a fuel truck and stepping on a fuel hose.
By letter dated July 15, 2015, OWCP advised appellant of the evidence necessary to
establish his claim. It noted that he had not submitted medical evidence which included a report
from a physician providing a diagnosis of a medical condition, and an explanation as to how the
diagnosed condition was causally related to the alleged incident. OWCP afforded appellant 30
days to submit additional evidence and to respond to its inquiries. No additional evidence was
received.
By decision dated August 17, 2015, OWCP denied appellant’s claim for compensation.
It found that he had not submitted sufficient medical evidence to establish a diagnosis of any
condition related to the June 30, 2015 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific conditions for which compensation is claimed are causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
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.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4.

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ANALYSIS
On July 1, 2015 appellant filed a claim alleging that he sustained a fibular fracture as a
result of an incident at work on June 30, 2015. OWCP accepted that the incident occurred as
alleged. By decision dated August 17, 2015, it denied appellant’s claim, finding that he had not
established a diagnosed condition connected to the June 30, 2015 incident.
The Board finds that appellant did not meet his burden of proof to establish a claim for a
June 30, 2015 work-related injury because he did not submit any medical evidence from a
physician establishing a firm medical diagnosis. OWCP sent appellant a development letter
dated July 15, 2015, outlining his burden of proof with regard to medical evidence, and afforded
him 30 days to submit such evidence. However, no evidence was received within that time
frame. As such, appellant did not meet his burden of proof to establish an injury causally related
to a June 30, 2015 employment incident.
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 did not meet his burden of proof to establish an injury
causally related to a June 30, 2015 employment incident.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2015 is affirmed.
Issued: February 4, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Bronx, NY, Employer
__________________________________________

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

Docket No. 11-176
Issued: August 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 28, 2010 appellant, through her attorney, filed a timely appeal of a May 18,
2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective February 15, 2009; and (2) whether appellant
established any continued disability on or after February 15, 2009 due to her June 25, 1999
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 1999 appellant, then a 54-year-old health technician, filed a traumatic injury
claim alleging that she injured her right foot and knee on June 25, 1999 in the performance of
duty. OWCP accepted her claim for right internal derangement of the knee on July 16, 1999. It
entered appellant on the periodic rolls on September 3, 1999. OWCP expanded her claim to
include contusion of the right foot and aggravation of phlebitis of the right foot. On June 15,
2000 it authorized right knee arthroscopy to repair a tear in the lateral meniscus. Appellant
underwent right knee arthroscopy for a partial tear of the lateral meniscus, chrondroplasty and
microfracture of the lateral femoral condyle on September 18, 2000.
Appellant’s attending physician, Dr. Jeffrey Passick, a Board-certified orthopedic
surgeon, completed a report on February 2, 2006 and noted her history of injury. He found a
moderate right knee effusion and significant loss of range of motion. Dr. Passick diagnosed
severe arthritis of the knee and opined that appellant was permanently and totally disabled. He
noted that she required a cane or walker to ambulate and would eventually require a total knee
replacement.
OWCP referred appellant for a second opinion evaluation with Dr. Louis D. Nunez, a
Board-certified orthopedic surgeon. In his September 6, 2007 report, Dr. Nunez noted her
accepted conditions as well as her concurrent conditions of diabetes and sickle cell disease. He
examined appellant and found flexion contracture of the right knee with an active ongoing
osteoarthritic condition of the right knee joint. Dr. Nunez opined that she had residuals of her
accepted fracture of the right tibial shaft, osteoarthritis. He noted that appellant could not
perform her date-of-injury position, but could perform sedentary work eight hours a day.
Appellant could walk and stand for one hour each and could not bend or stoop. Dr. Nunez also
stated that she could not climb, kneel, squat or lift. He indicated that appellant could push and
pull up to 10 pounds one hour each.
Dr. Barry I. Krosser, a Board-certified orthopedic surgeon, completed a work capacity
evaluation on October 25, 2007 and found that appellant was totally disabled due to her need for
a total knee replacement.
OWCP found a conflict of medical opinion evidence between Dr. Krosser and Dr. Nunez
and referred appellant to Dr. Harvey Seigel, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a January 17, 2008 report, Dr. Seigel reviewed the medical records and noted that the
accepted conditions were right knee internal degrangement, right foot contusion and
thrombophlebitis migrans. He opined that there was no active thrombophlebitis. Dr. Seigel
stated, “While there are objective findings of osteoarthritis of both knees, this cannot be
attributed to the [work-related] injury.” He noted that there was evidence of osteoarthritis of
both knees complicated by fractures of the right knee. Dr. Seigel that this condition was not
related to appellant’s June 25, 1999 employment injury opined that her accepted conditions had
resolved. He stated that she was able to perform a sedentary job and that none of her disability
was causally related to her June 25, 1999 employment injury. Dr. Seigel found that there were

2

no objective findings that the right knee injury on June 25, 1999 caused a permanent aggravation
of appellant’s preexisting condition of osteoarthritis of the right knee.
Dr. Seigel provided work restrictions indicating that appellant could work eight hours a
day with limited walking, standing, bending, stooping, squatting, kneeling and climbing.
The employing establishment offered appellant a limited-duty position on
February 12, 2008. Appellant returned to full-time work with restrictions on March 31, 2008.
OWCP requested a supplemental report from Dr. Seigel on September 9, 2008 and
requested that he opine whether appellant had reached maximum medical improvement in
regards to the accepted conditions. It requested an additional report on October 5, 2008
addressing whether right knee internal derangement, right foot contusion and thromophelebitis
migrans had resolved. OWCP requested medical rationale. Dr. Seigel responded on
November 14, 2008 and stated that appellant had reached maximum medical improvement. He
stated that, while there were objective findings of osteoarthritis of both knee, these findings
could not be attributed to the work injury. Dr. Seigel concluded, “No medical treatment is
recommended since the accepted conditions have already resolved completely.”
In a letter dated December 10, 2008, OWCP notified appellant of the proposed
termination of medical and compensation benefits based on Dr. Seigel’s reports. Counsel
responded on January 6 and 18, 2009 and stated that it failed to provide a copy of Dr. Nunez’
report and Dr. Seigel’s January 17, 2008 report as stated in the notice. By decision dated
February 13, 2009, OWCP terminated appellant’s compensation and medical benefits effective
February 15, 2009 relying on Dr. Seigel’s reports. Counsel requested reconsideration on
February 6, 2010.
By decision dated May 18, 2010, OWCP reviewed the merits of appellant’s claim and
denied modification of the prior decisions.
LEGAL PRECEDENT -- ISSUE 1
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.2 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.3 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.4 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.5
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

Id.

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When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.6 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.7
In situations were there are 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 on a proper
factual background, must be given special weight.8
ANALYSIS -- ISSUE 1
Appellant’s physician supported that appellant was totally disabled for work due to
osteoarthritis of the knee which was caused or contributed to by her accepted employment injury.
The second opinion physician, Dr. Nunez, found that, while appellant continued to experience
employment residuals in the form of osteoarthritis, she was capable of performing sedentary
work. The Board notes that there was a conflict of medical opinion evidence between
appellant’s physicians and those of OWCP on the issues of medical residuals and disability.
OWCP properly referred appellant to Dr. Seigel to resolve these issues.
The Board finds that Dr. Seigel’s reports are not sufficiently detailed or well rationalized
to constitute the special weight of the medical opinion evidence and establish that appellant has
no medical residuals due to her accepted employment injuries of right internal derangement of
the knee and right knee arthroscopy. In a January 17, 2008 report, Dr. Seigel stated, “While
there are objective findings of osteoarthritis of both knees, this cannot be attributed to the workrelated injury.” He opined that appellant’s knee arthritis preexisted her 1999 employment injury
and stated that there was no objective evidence to establish a permanent aggravation as a result
of the accepted internal derangement and surgery.
OWCP has the burden of proof to terminate appellant’s compensation and medical
benefits and relied on Dr. Seigel’s reports to meet this burden, who did not explain why he felt
that an accepted knee injury including a meniscal tear as well as arthroscopy to repair this tear,
chrondroplasty and microfracture of the lateral femoral condyle did not contribute to appellant’s
right knee osteoarthritis. Without adequate explanation of how Dr. Seigel reached the
conclusion that there was no permanent aggravation of appellant’s arthritic condition due to the
invasive procedures and diagnosed microfracture, his report cannot constitute the special weight
of the medical evidence, resolve the conflict and establish that she had no medical residuals or
disability as a result of her accepted knee injuries. He failed to provide any medical reasoning,
6

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

7

R.C., 58 ECAB 238 (2006).

8

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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explain the significance of his findings on physical examination or relate specific aspects of
appellant’s medical history in support of his conclusions. Due to these defects, OWCP failed to
meet its burden of proof and the termination effective February 15, 2009 is reversed.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation and medical benefits effective February 15, 2009.9
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

9

Due to the disposition of this issue, it is not necessary for the Board to address whether appellant has met her
burden of proof to establish any continuing disability on or after February 15, 2009.

5


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

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

Docket No. 10-2166
Issued: May 17, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant filed a timely appeal from a July 13, 2010 decision of the
Office of Workers’ Compensation Programs that denied her claim as untimely. 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.
ISSUE
The issue is whether appellant filed a timely claim for compensation under the Act.
On appeal her attorney asserts the July 13, 2010 decision is contrary to fact and law.
FACTUAL HISTORY
On October 10, 2009 appellant, then a 35-year-old former part-time flexible city carrier,
filed an occupational disease claim alleging that her federal duties caused employment-related
plantar fasciitis of the left foot and bilateral heel spurs and knee pain. She first became aware of
1

5 U.S.C. §§ 8101-8193.

the condition and its relationship to her federal employment on October 24, 2006 and was not
informed of the proper procedure for filing a claim. In an undated statement, appellant described
her job duties and noted that while delivering mail she would have pain in her feet and knees,
that her knees would buckle, and that on multiple occasions the pain was so bad she had to stop
and rest while delivering mail. After work, the pain was so bad she would have to pull over and
stop before continuing home. In October 2006, appellant went to the emergency room for
treatment, was referred to an orthopedic surgeon and to a podiatrist. She had surgery on the left
foot but her foot and knee pain persisted when standing or walking for five minutes. Appellant
maintained that she had never felt pain on walking, standing or sitting until she began her
employment as a mail carrier. The employing establishment noted that she was removed
effective December 31, 2006 for being absent without leave since October 4, 2006.
In an October 14, 2009 report, Dr. Tara Long Scott, a podiatrist, advised that she initially
treated appellant on October 24, 2006 for foot pain associated with plantar fasciitis. She reported
that appellant stated that she had pain on the first step in the morning, when standing after sitting
for extended periods of time, after excessive activity and at the end of the workday. Dr. Scott
opined that appellant’s job responsibilities at the employing establishment could trigger plantar
fasciitis and noted that appellant had surgery to relieve her symptoms.
In letters dated November 1, 2009, the Office informed appellant of the evidence needed
to support her claim and asked that the employing establishment respond. Appellant provided
treatment reports from Dr. Scott dated October 24 to December 12, 2006 in which she noted
appellant’s complaint of bilateral foot pain and diagnosed plantar fasciitis on the left and heel
spur. On October 31, 2006 Dr. Scott advised that appellant had sprained her ankle in a nonworkrelated fall. On December 15, 2006 she performed endoscopic gastrocnemius resection and
plantar fasciotomy on the left. In reports dated December 18, 2006 to February 12, 2007,
Dr. Scott reported on appellant’s postoperative care and her complaint of continued heel pain.
On December 31, 2009 Tonya Garner, appellant’s supervisor, noted that appellant was
hired in March 2005, spent part of 2006 on maternity leave and had continual attendance issues.
She stated that appellant failed to call or show up for work from October 4, 2006 until she was
removed on November 25, 2006. A notification of personnel action effective December 29,
2006 advised that appellant’s last day in pay status was October 8, 2006 and that she was
removed for being absent without leave.
By decision dated February 1, 2010, the Office denied the claim finding that it was not
timely filed.
On February 11, 2010 appellant, through her attorney, requested a hearing that was held
on May 10, 2010. At the hearing, appellant testified that she began work at the employing
establishment in March 2005 and described her job duties. She stated that her foot pain began
immediately and she had no prior foot problems. Appellant related that Dr. Scott advised her in
October 2006 that she needed foot surgery and maintained that she did not know what type of
claim to file until instructed by her attorney.
In a July 13, 2010 decision, an Office hearing representative affirmed the February 1,
2010 decision.

2

LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of the Act provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”3
Section 8119 of the Act provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.4 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.5
For actual knowledge of a supervisor to be regarded as timely filing, an employee must show not
only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.6
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability,7 and
the Board has held that the applicable statute of limitations commences to run although the
employee does not know the precise nature of the impairment.8 When an employee becomes
aware or reasonably should have been aware that he or she has a condition which has been
adversely affected by factors of his federal employment, such awareness is competent to start the

2

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

3

5 U.S.C. § 8122(a).

4

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

5

Laura L. Harrison, 52 ECAB 515 (2001).

6

Delmont L. Thompson, 51 ECAB 155 (1999).

7

5 U.S.C. § 8119(b).

8

Richard Narvaez, 55 ECAB 661 (2004).

3

limitation period even though the employee does not know the precise nature of the impairment
or whether the ultimate result of such affect would be temporary or permanent.9
Where the employee continues in the same employment after he or she reasonably should
have been aware that he or she has a condition which has been adversely affected by factors of
federal employment, the time limitation begins to run on the date of the last exposure to the
implicated factors.10 The requirement to file a claim within three years is the claimant’s burden
and not that of the employing establishment.11
ANALYSIS
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act.
Appellant filed the instant claim on October 10, 2009. She noted on her claim form that
she became aware of the condition and its relationship to her federal employment on
October 24, 2006. Her exposure to employment factors ceased on October 4, 2006, the date she
last worked. Thus, the time to file a claim began to run on October 4, 2006. Appellant did not
file her claim until October 10, 2009, beyond the three-year time limitation period provided in
section 8122(a) of the Act.12 Appellant’s claim would still be considered timely if her immediate
supervisor had actual knowledge of her injury within 30 days of her last exposure or if she
provided written notice.13 The record does not reflect that appellant provided written notice of
injury prior to filing the instant claim.
In a case of latent disability, the time for filing a claim begins to run when the employee
first becomes aware, or reasonably should have been aware, of a possible relationship between
his or her condition and employment. The Board has held that, when an employee becomes
aware or reasonably should have been aware that he or she has a condition which has been
adversely affected by factors of employment, such awareness is competent to start the running of
the time limitations period even though he does not know the precise nature of the impairment or
whether the ultimate result of such adverse effect would be temporary or permanent.14 In this
case, in her initial statement, appellant maintained that she had never felt pain on walking,
standing or sitting until she began her postal duties, and she reiterated this at the May 10, 2010
hearing testimony, where she also testified that foot pain began immediately when she began
work at the employing establishment in March 2005. While she stated on her claim form that
she first became aware of the claimed condition and its relationship to her federal employment
on October 24, 2006, the Board finds that her statement and hearing testimony are more

9

Larry E. Young, supra note 4.

10

Id.

11

Debra Young Bruce, 52 ECAB 315 (2001).

12

5 U.S.C. § 8122(a).

13

Id. at § 8122(a)(1); see Ralph L. Dill, 57 ECAB 248 (2005).

14

Richard Narvaez, supra note 8.

4

probative as to the date she first became aware of her condition and its relationship to her federal
employment and was competent to start the running of the time limitations period.
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, including that he or she is an “employee” within the meaning of the Act and that the
claim was filed within the applicable time limitation.15
Accordingly, appellant’s claim, which is outside the three-year time limitation period, is
untimely.16
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 17, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

J.P., 59 ECAB 178 (2007).

16

See Richard Narvaez, supra note 8.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 16-1234
Issued: March 16, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 26, 2016 appellant, through counsel, filed a timely appeal from a December 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member, warranting a schedule award.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 14, 2013 appellant, then a 60-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injuries to her right shoulder and right knee
on January 29, 2013. She alleged that she was attempting to lower her chair while trying to sit
on it, the chair rolled backwards and she fell. OWCP accepted the claim on April 14, 2013 for
right shoulder and upper arm sprain, and right knee and leg sprain. According to the employing
establishment, appellant worked intermittently through April 19, 2013, and then stopped work.
Appellant filed claims for compensation CA-7 forms for disability commencing from
March 19, 2013.
By decision dated September 11, 2013, OWCP denied a claim for a recurrence of
disability commencing March 19, 2013. It found that the evidence of record was insufficient to
establish the claim.
Appellant, through counsel, requested a hearing on October 9, 2013. A hearing was held
on April 15, 2013. By decision dated June 27, 2014, the hearing representative affirmed the
September 11, 2013 decision. He found that the evidence of record did not establish that
appellant was totally disabled as of March 19, 2013 causally related to the January 29, 2013
employment injury.
On November 3, 2014 appellant filed a claim for a schedule award (Form CA-7). She
submitted an October 8, 2014 note from Dr. Kamal Khalafi, a Board-certified internist.
Dr. Khalafi wrote that appellant had reached maximum medical improvement.
By decision dated February 23, 2015, OWCP found that appellant was not entitled to a
schedule award as the medical evidence of record did not establish permanent impairment of a
scheduled member under 5 U.S.C. § 8107.
On March 31, 2015 appellant submitted a March 12, 2015 report from Dr. Catherine
Campbell, Board-certified in occupational medicine.3 Dr. Campbell provided a history and
results on examination, including right shoulder range of motion (ROM) measurements. With
respect to the right knee, she indicated that appellant had degenerative joint disease that required
use of a walker. Based on loss of flexion and adduction in the right shoulder, Dr. Campbell
opined that appellant had four percent right upper extremity permanent impairment under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).4 She found there was no employment-related lower
extremity permanent impairment. Dr. Campbell wrote that there was insufficient historical data
or objective evidence of a permanent impairment beyond the preexisting degenerative condition.
The case was referred to an OWCP medical adviser, Dr. Morley Slutsky. In a report
dated April 10, 2015, Dr. Slutsky concurred that there was no lower extremity permanent
impairment. With respect to the upper extremity, he opined that the diagnosis-based impairment
(DBI) method was the preferred method of evaluating permanent impairments under the A.M.A.,
3

The date of the evaluation was reported as November 18, 2014. The date on the front page of the report was
March 12, 2014, which appears to have been a typographical error. The intended date was March 12, 2015.
4

A.M.A., Guides (6th ed. 2009).

2

Guides. Dr. Slutsky opined that appellant had no ratable impairment under Table 15-5, the
shoulder regional grid. He reported the only diagnosis was nonspecific shoulder pain, and after a
grade modifier adjustment there was zero percent permanent impairment under Table 15-5.
By decision dated April 14, 2015, OWCP again found that appellant was not entitled to a
schedule award as the weight of the evidence was represented by Dr. Slutsky.
Appellant, through counsel, requested a hearing on April 20, 2015. A hearing was held
on September 16, 2015. Counsel argued that Dr. Slutsky improperly applied the A.M.A., Guides
and the weight of the evidence rested with Dr. Campbell.
By decision dated December 9, 2015, the hearing representative affirmed the April 14,
2015 decision, finding that Dr. Campbell did not provide a reasoned medical opinion with
respect to an employment-related permanent impairment.
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 the Director of OWCP.5 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.6 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.7
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
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).8 The Board has approved the use by OWCP of the A.M.A.,

5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
7

5 U.S.C.

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

8

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 2.808.6a (February 2013).

3

Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
In the present case, OWCP accepted appellant sustained right shoulder and upper arm
sprain, and right knee and leg sprain in the performance of duty on January 29, 2013. As to a
permanent impairment in the right lower extremity, both attending physician Dr. Campbell and
OWCP medical adviser Dr. Slutsky concurred there was no ratable employment-related
permanent impairment. Dr. Campbell wrote in her November 18, 2014 report that there was
insufficient historical data or objective evidence of a permanent impairment beyond the
preexisting degenerative condition. There was no probative medical evidence of record
establishing a right lower extremity permanent impairment in this case. The Board finds that
OWCP properly determined that appellant had not established an employment-related permanent
impairment to the right lower extremity.
As to the upper extremity, Dr. Campbell found four percent right upper extremity
impairment based on loss of ROM in the shoulder. Dr. Slutsky opined that the DBI was the
preferred method of rating upper extremity impairment under the A.M.A., Guides, and under the
DBI method, there was no ratable permanent impairment.10
The Board finds that this case is not in posture for decision as to right upper extremity
permanent impairment.
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 has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.11
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.12 In T.H., the Board concluded that OWCP’s physicians
are 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 cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.13
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

The hearing representative incorrectly wrote that an impairment rating based on pain is not acceptable. Table
15-5 specifically provides “nonspecific shoulder pain” as a diagnosis, with a default impairment of one percent to
the upper extremity. Dr. Slutsky found zero percent permanent impairment after applying a net adjustment formula.
See A.M.A., Guides 401-11.
11

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

12

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

13

Supra note 11.

4

In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the December 9, 2015
decision. Following OWCP’s development of 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.
CONCLUSION
The Board finds that appellant has not established right lower extremity permanent
impairment. The Board further finds that the case is not in posture for decision as to right upper
extremity permanent impairment, and the case is remanded for further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2015 is affirmed with respect to lower extremity
permanent impairment. The December 9, 2015 decision is set aside with respect to right upper
extremity permanent impairment and the case is remanded to OWCP for further action consistent
with this decision of the Board.
Issued: March 16, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-1302
Issued: October 8, 2015

Case Submitted on the Record

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

On May 22, 2015 appellant, through counsel, filed an application for review of a
March 19, 2015 decision of the Office of Workers’ Compensation Programs (OWCP), which
denied modification of a loss of wage-earning capacity (LWEC) determination dated
August 15, 2011.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP.
In the case of William A. Couch,1 the Board held that when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. On April 14, 2014 OWCP denied appellant’s reconsideration
request as it was untimely filed and did not show clear evidence of error. Appellant appealed
and the Board, in a November 21, 2014 decision,2 set aside OWCP’s decision finding that she
had requested modification of an August 15, 2011 LWEC determination and was entitled to a
merit review. Evidence submitted by appellant in support of her claim included a November 18,
1

41 ECAB 548 (1990).

2

Docket No. 14-1605 (issued November 21, 2014).

2014 report from Dr. Steven J. Valentino, a Board-certified orthopedic surgeon, and a
December 11, 2014 report from Dr. Scott M. Fried, a Board-certified orthopedic surgeon.
Dr. Fried submitted follow-up reports dated on February 10 and 12, 2015. These reports were
received by OWCP on December 1 and 15, 2014 and February 5, 17, and 23, 2015. In its
March 19, 2015 decision, OWCP denied modification of the LWEC determination August 15,
2011 as the evidence presented was not sufficient to warrant modification. It noted receipt of
“various treatment notes” but it did not note receipt or consideration of the above referenced
reports from Dr. Valentino and Dr. Fried.
The Board finds that OWCP, in its March 19, 2015 decision, had not reviewed all the
medical evidence.3 For this reason, the case will be remanded to OWCP to enable it to properly
consider all the evidence submitted at the time of the March 19, 2015 decision. Following such
further development as OWCP deems necessary, it shall issue an appropriate merit decision on
the claim.

3

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision).

2

IT IS HEREBY ORDERED THAT the March 19, 2015 decision of the Office of
Workers’ Compensation Programs set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: October 8, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Seaside, CA,
Employer
__________________________________________

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

Docket No. 16-1273
Issued: November 18, 2016

Case Submitted on the Record

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

JURISDICTION
On June 6, 2016 appellant filed a timely appeal from a May 12, 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish disability on or after
December 20, 2014 causally related to his accepted March 23, 2014 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The case record provided to the Board includes evidence received after OWCP issued its May 12, 2016
decision. The Board is precluded from considering evidence that was not in the case record at the time OWCP
rendered its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 26, 2014 appellant, then a 56-year-old meat cutter, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left knee on March 23, 2014 when he fell on a
wet floor at work.
Dr. Robert F. Lawson, a Board-certified orthopedic surgeon, examined appellant on
March 23, 2014 and noted complaints of left knee pain following a slip and fall at work.
Appellant reported that he slipped on a wet floor in a meat cooler and twisted his left knee as he
fell. Dr. Lawson diagnosed employment-related left knee strain -- medial collateral ligament
(MCL) and medial meniscus injury with significant motion decrease. He advised that appellant
could perform modified work as of March 26, 2014, and could resume his regular work as of
March 31, 2014.3
A March 24, 2014 left knee x-ray revealed no evidence of fracture or other acute osseous
pathology, probable joint effusion, and moderate degenerative narrowing (osteoarthritis) of the
medial knee joint space.
In April 2014, OWCP accepted appellant’s claim for left knee lateral collateral ligament
(LCL) strain.
In a report dated June 5, 2014, Dr. Donald C. Pompan, a Board-certified orthopedic
surgeon, mentioned the March 23, 2014 employment incident and a prior diagnosis of left knee
valgus injury. He also noted that appellant currently complained of right knee pain, both
medially and laterally. Dr. Pompan diagnosed right knee strain and possible MCL strain. In a
July 8, 2014 follow-up report, he added possible medial meniscus tear to the list of right knee
diagnoses.
A July 8, 2014 right knee magnetic resonance imaging (MRI) scan revealed a horizontal
tear of the body and posterior horn of the medial meniscus.
In an August 22, 2014 report, Dr. Pompan noted that appellant reported injuring both
knees on March 23, 2014, noting that the right knee also twisted when he fell. He indicated that
appellant complained of right knee pain and the diagnostic testing showed a meniscal tear.
Dr. Pompan further noted that there was some confusion from his own notes as to which knee
had been injured, but it seemed that both knees were injured on March 23, 2014.
A September 24, 2014 left knee MRI scan showed a large radial tear in the body of the
medial meniscus versus prior partial meniscectomy with degenerative fraying of the anterior and
posterior horn.
On October 28, 2014 Dr. Pompan diagnosed bilateral knee meniscal tears and placed
appellant on limited duty.4 He also recommended right knee arthroscopy. In response, the
3

Appellant stopped work on March 23, 2014 and received continuation of pay from March 27 through 30, 2014.

4

Dr. Pompan imposed a 10- to 20-pound lifting restriction and limited squatting, kneeling, crawling, climbing,
standing, and walking.

2

employing establishment provided appellant a temporary assignment as a modified meat cutting
worker, which he accepted on November 19, 2014.
Appellant stopped work entirely on December 20, 2014 and filed a claim for
compensation (Form CA-7) for temporary total disability through January 10, 2015.5
In a report dated March 2, 2015, Dr. Pompan noted that appellant was totally disabled
due to morbid obesity as well as meniscal tears. In an April 13, 2015 report, he repeated the
diagnoses noted in his March 2, 2015 report and added bilateral knee tendinitis. In a report dated
April 27, 2015, Dr. Pompan repeated the diagnoses in his April 13, 2015 report.
In a May 21, 2015 report, Dr. Jeffrey D. Carter, a Board-certified orthopedic surgeon,
noted a history of a March 23, 2014 injury where appellant “fell on wet floor, bent left knee
sideways, extend right knee….” Appellant currently complained of right knee pain. Dr. Carter
diagnosed right medial meniscus tear, knee effusion, and chondromalacia patellae, and
recommended arthroscopic surgery. He indicated that appellant’s injury was caused by impact
with the floor on March 23, 2014.
In a May 27, 2015 decision, OWCP denied appellant’s disability claim for the period
December 11, 2014 to January 10, 2015 on the basis that the evidence of record did not establish
a causal relationship between the accepted March 23, 2014 employment injury and total
disability for the period claimed. It found that opinions by treating physicians were not
rationalized as to either an additional injury-related right knee condition or whether the accepted
left knee injury disabled appellant from work as of December 11, 2014.
On June 6, 2015 appellant requested a review of the written record by an OWCP hearing
representative.
On June 18, 2015 OWCP referred appellant to Dr. Bruce R. Huffer, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated July 20, 2015,
Dr. Huffer noted a history of a fall on a wet floor on March 23, 2014 with a twisting injury to the
left knee. He further noted that appellant reported performing light-duty “sit down” work prior
to stopping work in December 2014. The left knee showed minimal effusion, some pain on
McMurray’s test, no ligament instability, and negative Lachman’s and drawer tests. Dr. Huffer
opined that the March 23, 2014 work incident caused a left knee strain while other conditions
disclosed by diagnostic testing preexisted March 23, 2014. He posited that appellant’s right knee
conditions were not causally related to the March 23, 2014 work injury, noting that right knee
symptoms were not reported until some months following such injury. Dr. Huffer opined that
appellant could work eight hours per day with restrictions and also noted that it was unclear why
he had to stop working limited duty in December 2014 due to the work-related left knee strain.
He indicated that appellant could return to the sit-down type of work he had been performing up
to December 2014.

5

Appellant also claimed three hours of wage-loss compensation for December 18, 2014.

3

By decision dated November 12, 2015, the hearing representative affirmed OWCP’s
May 27, 2015 decision. Dr. Huffer’s July 20, 2015 report represented the weight of the medical
evidence.
In a January 12, 2016 report, Dr. Carter diagnosed right and left knee derangement of the
posterior horns of the medial meniscuses due to an old tear or injury. He opined that appellant
had bilateral chronic medial meniscus tearing and noted, “I cannot find any reason for the
severity of his knee complaints or that they are work related….”
In a January 25, 2016 report, Dr. Pompan diagnosed bilateral knee degenerative meniscal
tears, bilateral pes anserine tendinitis, and morbid obesity and deconditioning. He opined that
appellant remained disabled to activities requiring repetitive squatting, kneeling, walking on
uneven ground, heavy repetitive pushing or pulling, or climbing.
On February12, 2016 appellant requested reconsideration of his claim.
In a May 12, 2016 decision, OWCP denied modification of its November 12, 2015
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained 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.6 In general the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time
of such injury.7 This meaning, for brevity, is expressed as disability for work.8
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of appellant, 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 appellant.9

6

J.F., Docket No. 09-1061 (issued November 17, 2009).

7

See 20 C.F.R. § 10.5(f).

8

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

9

See E.J., Docket No. 09-1481 (issued February 19, 2010).

4

ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish total
disability on or after December 20, 2014 due to his March 23, 2014 work injury. Appellant
failed to submit medical evidence containing a rationalized opinion relating disability on or after
December 20, 2014 to that work-related injury.
In reports from early 2015, Dr. Pompan suggested a work-related cause for appellant’s
disability, namely bilateral meniscal tears and bilateral knee tendinitis which he felt were related
to the March 23, 2014 work injury. However, his reports are not based on an accurate history as
Dr. Pompan essentially restated appellant’s belief that a right knee condition arose as a
consequence of the accepted left knee injury. Appellant presented to Dr. Pompan with
conflicting histories of a fall on the left knee with compensatory right knee pain or, alternately, a
right knee injury with compensatory left knee pain, or that both knees twisted in the March 23,
2014 incident.10
The Board further notes that Dr. Carter did not examine appellant until May 2015, at
which time appellant reported extending his right knee when he fell on March 23, 2014.
However, on the date of injury of March 23, 2014 appellant did not report any right knee injury.
This assertion was only presented several months later. Dr. Carter did not provide a clear
opinion relating appellant’s disability on or after December 20, 2014 to the March 23, 2014 work
injury. In fact, his most recent January 12, 2016 report noted that he could find no reason for the
severity of appellant’s knee complaints or that they are work related.
Moreover, the Board notes that the record contains a well-rationalized opinion showing
that appellant did not have work-related disability on or after December 20, 2014. Dr. Huffer,
the second opinion physician, concluded in his January 12, 2016 report that the March 23, 2014
work injury caused only a left knee strain, while other left knee conditions disclosed by
diagnostic testing were degenerative in nature and preexisted March 23, 2014. He further found
that the right knee conditions disclosed by diagnostic testing were unrelated to the March 23,
2014 work injury because appellant did not initially report any right knee injury, and did not
express right knee complaints for months following the date of injury.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish total
disability on or after December 20, 2014 due to his March 23, 2014 work injury.

10

Dr. Lawson examined appellant soon after his March 23, 2014 employment injury and did not report any right
knee injury or symptoms. It was not until June 2014 that Dr. Pompan noted complaints of right knee pain.

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ORDER
IT IS HEREBY ORDERED THAT the May 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Collins, CO, Employer
__________________________________________

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

Docket No. 16-0399
Issued: June 9, 2016

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 December 29, 2015 appellant filed a timely appeal from a December 3, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to rescind its acceptance of
appellant’s claim for several right upper extremity conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 31, 2014 appellant, then a 59-year-old dental assistant,2 filed a traumatic injury
claim (Form CA-1) alleging that on June 9, 2014 she experienced pain and numbness in her right
palm and wrist when she was typing on that date. She did not stop work, but continued to
perform modified-duty work.
The record contains an authorization for examination and/or treatment form (Form
CA-16) completed on June 9, 2014 by Dr. John Reasoner, an attending Board-certified family
practitioner. Dr. Reasoner examined appellant on June 9, 2014 and reported right wrist pain and
hand numbness while working on a computer. He noted that she had preexisting right carpal
tunnel syndrome and he diagnosed de Quervain’s tenosynovitis and exacerbation of degenerative
joint disease of the first metacarpophalangeal and carpometacarpal joints.3 Dr. Reasoner
checked a “yes” box indicating that the conditions found were caused or aggravated by the
employment activity described.
In a report dated June 10, 2014, Dr. Kenneth A. Stone, an attending Board-certified
family practitioner, examined appellant on that date. Appellant reported that, on the prior day,
she experienced sudden onset of pain in the palm of her right hand and burning pain along the
extensor tendon from her right thumb to her right forearm. She indicated that she was working
on the computer each day and “not really performing” her dental assistant duties. Dr. Stone
diagnosed “acute de Quervain’s tenosynovitis right thumb, wrist, and forearm that is work
related, possibly associated with an aggravation of preexisting [carpal tunnel syndrome].”
In a June 19, 2014 report, Dr. Reasoner noted that appellant came in for follow up of
“injury/pain hand, injury/pain wrist, and work injury” and reported physical examination
findings. He diagnosed exacerbation of preexisting right carpal tunnel syndrome, right
de Quervain’s tenosynovitis, and exacerbation of osteoarthrosis the first metacarpophalangeal
and carpometacarpal joints of her right hand. Dr. Reasoner noted that appellant continued to
perform modified-duty work.4
On July 22, 2015 OWCP accepted that appellant sustained aggravation of preexisting
right carpal tunnel syndrome, right de Quervain’s tenosynovitis, and aggravation of preexisting
osteoarthritis of the first metacarpophalangeal and carpometacarpal joints of her right hand.
In an August 15, 2014 report, Dr. Reasoner indicated in the history section of the report,
“[Appellant] has had continued tingling of right hand due to increased typing at work despite
2

Appellant identified herself as a dental assistant on the (Form CA-1). At the time she filed her claim, she was
not performing her regular dental assistant duties, but rather was working in a sedentary, modified-duty position that
involved typing on a computer.
3

Dr. Reasoner noted that appellant could perform light-duty work beginning June 9, 2014. The findings of
June 9, 2014 right hand x-rays showed no acute bony abnormality, mild osteoarthritis of the first
metacarpophalangeal joint, and minimal osteoarthritis of the first carpometacarpal and scaphotrapezium joints.
4

In a July 3, 2014 report, Dr. Reasoner reported physical examination findings and diagnosed the same right
upper extremity conditions.

2

wrist brace. [Appellant] has [degenerative joint disease of the first carpometacarpal] joint, which
has been exacerbated by her work activities.” He diagnosed exacerbation of preexisting right
carpal tunnel syndrome and exacerbation of osteoarthrosis the first metacarpophalangeal and
carpometacarpal joints of appellant’s right hand, and recommended that she continue performing
modified work.
By letter dated October 8, 2015, OWCP advised appellant that it proposed to rescind its
acceptance of her claim for aggravation of preexisting right carpal tunnel syndrome, right
de Quervain’s tenosynovitis, and aggravation of preexisting osteoarthritis of the first
metacarpophalangeal and carpometacarpal joints of her right hand. It explained that the record
did not contain a medical report with a rationalized medical opinion relating these conditions to
her described work duties on June 9, 2014. OWCP provided appellant 30 days to submit
additional evidence challenging the proposed rescission action, including information about her
work duties on June 9, 2014 and a medical report with sound reasoning regarding the causal
relationship between the diagnosed conditions and work factors.5
Appellant submitted an October 22, 2015 statement in which she noted that, since
October 2013, she had only been performing administrative duties. She described her duties of
typing information for 50 to 250 patients each day, noting that she spent several minutes typing
for each patient.6 In a November 2, 2015 statement, appellant described the problems she
encountered in obtaining additional medical reports from attending physicians. She noted that
Dr. Reasoner had left his medical practice group.
In an October 19, 2015 letter, an employing establishment official indicated that appellant
had been performing “strictly administrative” work duties since 2013, which included typing
information for 50 to 250 patients per day. Typing in the information for each patient took a
maximum of two minutes.
In a December 3, 2015 decision, OWCP rescinded its acceptance of appellant’s claim for
aggravation of preexisting right carpal tunnel syndrome, right de Quervain’s tenosynovitis, and
aggravation of preexisting osteoarthritis of the first metacarpophalangeal and carpometacarpal
joints of her right hand. It discussed the reports of Dr. Reasoner and Dr. Stone and indicated that
the rescission action was justified by the fact that the medical evidence of record did not contain
a rationalized medical opinion relating the accepted employment conditions to specific work
factors she experienced on June 9, 2014. OWCP noted that appellant was provided an
opportunity to submit a rationalized medical report on the matter of causal relationship, but
failed to do so.

5

In an October 8, 2015 letter, OWCP also requested that the employing establishment submit additional
information about appellant’s work duties.
6

Appellant also described the dental assistant duties she performed between December 2005 and October 2013,
including sterilizing dental instruments and typing information for patients.

3

LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his or her own motion or on application.7 The
Board has upheld OWCP’s authority to reopen a claim at any time on its own motion under
section 8128 of FECA and, where supported by the evidence, set aside or modify a prior decision
and issue a new decision.8 The Board has noted, however, that the power to annul an award is
not an arbitrary one and that an award for compensation can only be set aside in the manner
provided by the compensation statute.9
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that, once OWCP accepts a claim, it has the burden of justifying the termination or modification
of compensation benefits. This holds true where, as here, OWCP later decides that it erroneously
accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of the rationale for rescission.10
ANALYSIS
On July 31, 2014 appellant filed a traumatic injury claim alleging that on June 9, 2014
she sustained a right upper extremity condition. She indicated that she experienced pain and
numbness in her right palm and wrist when she was typing on that date.11 OWCP accepted that
appellant sustained aggravation of preexisting right carpal tunnel syndrome, right de Quervain’s
tenosynovitis, and aggravation of preexisting osteoarthritis of the first metacarpophalangeal and
carpometacarpal joints of her right hand. In a December 3, 2015 decision, it rescinded its
acceptance of her claim for these right upper extremity conditions. OWCP indicated that the
rescission action was justified by the fact that the medical evidence of record did not contain a
rationalized medical opinion relating the accepted employment conditions to specific work
factors appellant experienced on June 9, 2014.
The Board finds that OWCP met its burden of proof to terminate its acceptance of
appellant’s claim for aggravation of preexisting right carpal tunnel syndrome, right de
Quervain’s tenosynovitis, and aggravation of preexisting osteoarthritis of the first
metacarpophalangeal and carpometacarpal joints of her right hand.

7

5 U.S.C. § 8128.

8

John W. Graves, 52 ECAB 160, 161 (2000).

9

See 20 C.F.R. § 10.610.

10

Supra note 8.

11

At the time she filed her claim, appellant was not performing her regular dental assistant duties, but rather was
working in a sedentary, modified-duty position that involved typing on a computer.

4

In a CA-16 form report completed on June 9, 2014 by Dr. Reasoner, an attending Boardcertified family practitioner, noted his examination of appellant on June 9, 2014 and that she
reported developing right wrist pain and hand numbness while working on a computer. He noted
that she had preexisting right carpal tunnel syndrome and diagnosed de Quervain’s tenosynovitis
and exacerbation of degenerative joint disease of the first metacarpophalangeal and
carpometacarpal joints. Dr. Reasoner checked a “yes” box indicating that the conditions found
were caused or aggravated by the employment activity described.
In rescinding its acceptance of appellant’s claim for several right upper extremity
conditions, OWCP explained its December 3, 2015 decision that Dr. Reasoner had not provided a
rationalized medical opinion relating the diagnosed conditions to the specific work duties she
performed on June 9, 2014. The Board has held that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without more by the way of
medical rationale, that opinion has little probative value and is insufficient to establish causal
relationship. Appellant’s burden includes the necessity of furnishing an affirmative opinion from a
physician who supports his or her conclusion with sound medical reasoning.12 As Dr. Reasoner
did no more than check “yes” to a form question, his opinion on causal relationship is of little
probative value and is insufficient to show that she sustained employment-related right upper
extremity conditions. He did not describe appellant’s June 9, 2014 duties in any detail or explain
how they could have caused or aggravated the observed medical conditions.
In a June 19, 2014 report, Dr. Reasoner noted that appellant returned for follow up of
“injury/pain hand, injury/pain wrist, and work injury” and reported physical examination
findings. He diagnosed exacerbation of preexisting right carpal tunnel syndrome, right
de Quervain’s tenosynovitis, and exacerbation of osteoarthrosis the first metacarpophalangeal
and carpometacarpal joints of her right hand. In an August 15, 2014 report, Dr. Reasoner
indicated in the history section of the report, “[Appellant] has had continued tingling of right
hand due to increased typing at work despite wrist brace. [Appellant] has [degenerative joint
disease of the first carpometacarpal] joint which has been exacerbated by her work activities.”
He diagnosed exacerbation of preexisting right carpal tunnel syndrome and exacerbation of
osteoarthrosis the first metacarpophalangeal and carpometacarpal joints of appellant’s right hand.
However, as noted by OWCP in its December 3, 2015 rescission decision, Dr. Reasoner did not
describe her June 9, 2014 work duties in detail or provide a rationalized medical opinion
explaining the medical process through which they could have been related to the diagnosed
conditions.
In a report dated June 10, 2014, Dr. Stone, an attending Board-certified family
practitioner, reported that, on the prior day, appellant had experienced a sudden onset of pain in
the palm of her right hand and burning pain along the extensor tendon from her right thumb to
her right forearm while working on a computer. He diagnosed “acute de Quervain’s
tenosynovitis right thumb, wrist, and forearm that is work related, possibly associated with an
aggravation of preexisting [carpal tunnel syndrome].” OWCP noted in its December 3, 2015
rescission decision that Dr. Stone did not provide a rationalized opinion explaining how the
observed medical conditions could have been related to appellant’s June 9, 2014 work duties.
12

Lillian M. Jones, 34 ECAB 379, 381 (1982).

5

Dr. Stone did not describe June 9, 2014 work duties and only generally indicated that the
diagnosed conditions were “work related” without further elaborating on the reasons for his
opinion. With respect to the carpal tunnel condition, his opinion on causal relationship was
speculative in nature. The Board has held that an opinion which is speculative in nature is of
limited probative value regarding the issue of causal relationship.13
For these reasons, OWCP provided a clear explanation of the rationale for rescinding its
acceptance of appellant’s claim for aggravation of preexisting right carpal tunnel syndrome, right
de Quervain’s tenosynovitis, and aggravation of preexisting osteoarthritis of the first
metacarpophalangeal and carpometacarpal joints of her right hand.14 Therefore, it justified the
rescission of its acceptance of her claim for these right upper extremity conditions.15
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.
The Board notes that 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 CA-16 form 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. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for
which treatment is authorized by a CA-16 form is limited to 60 days from the date of issuance,
unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).
CONCLUSION
The Board finds that OWCP met its burden of proof to rescind its acceptance of
appellant’s claim for several right upper extremity conditions.

13

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

14

OWCP noted in its December 3, 2015 rescission decision that appellant was provided an opportunity to submit
a rationalized medical report on the matter of causal relationship but failed to do so.
15

See supra note 8.

6

ORDER
IT IS HEREBY ORDERED THAT the December 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2016
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

7