United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, KIRKWOOD POST
OFFICE, St. Louis, MO, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0255
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On November 14, 2019 appellant, through counsel, filed a timely appeal from an
October 24, 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. 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 Board notes that following the October 24, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a re currence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
FACTUAL HISTORY
On April 19, 2004 appellant, then a 34-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed metatarsalgia and chondromalacia of the
patella due to factors of her federal employment, including continuous walking, standing, stair
climbing, and carrying a mail satchel. She noted that she first became aware of her condition and
its relation to her federal employment on February 6, 2004. On the reverse side of the claim form,
appellant’s supervisor noted that she was placed on limited duty on February 7, 2014 with
restrictions of three hours of continuous walking. On October 5, 2007 OWCP accepted her claim
for bilateral plantar fibromatosis and bilateral tarsal tunnel syndrome.
On August 19, 2014 Dr. Shari L. Kaminsky, a podiatrist, provided permanent work
restrictions for an eight-hour day consisting of intermittent walking for one hour, intermittent
standing for two hours, and operating a motor vehicle for one hou r. She also provided lifting
restrictions of no more than 10 pounds.
In a December 16, 2014 form report, Dr. Kaminsky diagnosed plantar fasciitis as well as
tarsal tunnel syndrome and opined that appellant was totally disabled from work from
September 25, 2014 through January 9, 2015. She indicated that appellant could resume regular
work on January 9, 2015.
On December 28, 2014 and January 9, 2015 appellant filed claims for compensation (Form
CA-7) for total disability beginning September 25, 2014 through January 9, 2015.
In a January 16, 2015 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested that she submit additional factual and medical evidence supporting her
claim for total disability beginning September 25, 2014. OWCP further provided appellant with a
questionnaire for completion and requested a report from her physician addressing the relationship
between her disability and her employment injury. It afforded her 30 days to submit the necessary
evidence. No response was received.
By decision dated March 6, 2015, OWCP denied appellant’s claim for a recurrence of total
disability commencing September 25, 2014.
On February 29, 2016 appellant requested reconsideration of the March 6, 2015 decision
and submitted additional evidence in support of her claim.
An August 20, 2014 electromyogram and nerve conduction velocity (EMG/NCV) study
demonstrated bilateral tarsal tunnel syndrome, mild on the right, and moderate on the left.
In notes dated October 16 and November 18, 2014, Dr. Kaminsky found appellant totally
disabled and released her to work without restrictions on November 3, 2014 and December 12,
2014, respectively. On January 29, 2015 she found appellant disabled from work for the period
September 25, 2014 through March 2, 2015.
2

In a January 29, 2015 treatment note, Dr. Kaminsky diagnosed tarsal tunnel syndrome. She
related that appellant felt her foot pain was extreme, but that she was spending very little time on
her feet at work. Dr. Kaminsky noted pain with palpation of the base of the right second toe and
the second metatarsal head as well as the right second intermetatarsal space. She also reported a
positive Tinel’s sign at the tarsal tunnel bilaterally, as well as pain upon palpation of the medial
tarsal area, the flexor halluces brevis, and the arch. Dr. Kaminsky found that she was experiencing
chronic changes from her long-term tarsal tunnel syndrome and recommended a tarsal tunnel
decompression. She noted that appellant was no longer taking prescribed pain medication, which
had relieved some of her foot pain.
On February 13, 2015 Dr. Kaminsky completed a form report diagnosing tarsal tunnel
syndrome and indicating that appellant was totally disabled from work through June 25, 2015. On
March 2, 2015 she again found that appellant was totally disabled from work for the period
September 25, 2014 through June 25, 2015.
On February 13, 2015 appellant responded to OWCP’s development questionnaire and
submitted additional medical evidence. She attributed her recurrence of total disability on
September 25, 2014 to chronic changes from tarsal tunnel syndrome.
On May 6, 2015 Dr. Kaminsky performed a surgical right tarsal tunnel decompression.
Appellant provided notes beginning June 11, 2015 from Brian Harthill, a physical therapist.
On June 24, 2015 Dr. Kaminsky found that appellant was totally disabled from work for
the period September 25, 2014 through September 1, 2015. In a follow-up note dated July 13,
2015, she indicated that appellant could return to light-duty work. Dr. Kaminsky found that
appellant was totally disabled from work for the period September 25, 2014 through July 13, 2015.
Through a separate July 13, 2015 form report, she found that she could returned to light-duty work
with her prior restrictions.
On July 15, 2015 the employing establishment offered appellant a permanent light-duty
position as an accounting support technician. Appellant accepted the position on that date.
In a February 22, 2016 attending physician’s report (Form CA-20), Dr. Kaminsky
diagnosed chronic changes from long-term tarsal tunnel syndrome, including EMG findings, a
positive Tinel’s sign, and musculoskeletal swelling. She checked a box marked “Yes” indicating
that appellant’s condition was caused or aggravated by employment activities and listed walking,
standing, and weight-bearing of postal equipment. Dr. Kaminsky found that appellant was totally
disabled for the period September 25, 2014 through July 13, 2015.
By decision dated May 27, 2016, OWCP denied modification of the March 6, 2015
decision.
On May 23, 2017 appellant resubmitted her August 20, 2014 EMG study. She also
provided a January 22, 2015 right foot magnetic resonance imaging (MRI) scan which
demonstrated mild intermetatarsal bursitis situated between the heads of the second and third
metatarsals.
On December 9, 2016 appellant provided additional physical therapy notes from
Mr. Harthill.
3

In a note dated April 13, 2017, Dr. Kaminsky reviewed appellant’s medical treatment for
tarsal tunnel syndrome. She opined that tarsal tunnel syndrome was caused by overuse from
walking, standing, or pedaling of an automobile for long periods of time. Dr. Kaminsky reviewed
her MRI scan and noted that her symptoms of pain in the right second and third intermetatarsal
spaces was consistent with pain that could radiate from tarsal tunnel syndrome. She noted that
appellant did not have a neuroma or mass on MRI scan. Dr. Kaminsky provided her findings on
physical examination including positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon
palpation of the medial tarsal tunnel, flexor hallucis brevis, and the arch. She opined that appellant
was having chronic changes from the long-term tarsal tunnel syndrome and that she believed that
she had a neurological origin for her pain, which was why she recommended tarsal tunnel
decompression. Dr. Kaminsky noted that during the period of disability from September 25, 2014
through July 13, 2015 that she was unable to alleviate her foot pain and felt that keeping her off
work with rest and pain medication would help her functionally.
On May 24, 2017 appellant requested reconsideration of the May 27, 2016 decision.
By decision dated November 16, 2017, OWCP denied modification.
In an undated report, Dr. Kaminsky opined that appellant had experienced a spontaneous
worsening of her work-related tarsal tunnel syndrome due to chronic changes that rendered her
unable to work from September 25, 2014 until July 13, 2015. She noted that appellant had pain in
the right intermetatarsal space and the right third intermetatarsal space that was consistent with
radiating pain from tarsal tunnel syndrome. Dr. Kaminsky reported that on physical examination
she had symptoms consistent with chronic worsening of her tarsal tunnel syndrome including pain
upon palpation of the right second intermetatarsal space, and slightly to the right of the of the third
intermetatarsal space, positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon palpation
of the tarsal tunnel, flexor hallucis brevis, and the arch.
On September 27, 2018 appellant, through counsel, requested reconsideration.
By decision dated February 25, 2019, OWCP denied modification.
OWCP continued to receive medical evidence. In a report dated April 16, 2019,
Dr. Kaminsky detailed appellant’s medical history, including her surgery on March 25, 2015. She
noted that appellant had persistent and worsening pain in her right foot. Dr. Kaminsky diagnosed
unspecified mononeuropathy of the right lower limb.
On August 26, 2019 appellant, through counsel, requested reconsideration of the
February 25, 2019 decision. She provided additional treatment notes from Dr. Kaminsky and
Dr. Jerry M. Liddell, a podiatrist and associate of Dr. Kaminsky, dated July 14 through
December 16, 2014. Counsel contended that Dr. Kaminsky’s notes were sufficient to meet
appellant’s burden of proof to establish a recurrence of total disability on September 25, 2014.
On July 24, 2014 Dr. Kaminsky noted appellant’s report of bilateral foot pain and that she
had not sought treatment for several years. She recounted that appellant reported throbbing,
shooting, radiating, burning, tingling, numbness, and stiffness in her feet, worse on the right.
Appellant’s pain continued to increase and was aggravated by walking and weight-bearing, but
noted that she continued performing light-duty work. On physical examination Dr. Kaminsky
noted no overt deformities and normal arch structure. She found pain upon compression of the
common peroneal nerve bilaterally, tarsal tunnel bilaterally, and under the metatarsal heads one
4

through five, bilaterally. Dr. Kaminsky also found pain upon palpation of the heels plantarly
bilaterally. She diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic
ankle and foot pain. Dr. Kaminsky noted that appellant’s physical examination was normal except
for reports of pain, that her foot structure was good, and that she did not exhibit fat pad atrophy.
She also reported that her neurological examination was normal, but recommended an EMG study.
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work lately because
of increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell found a negative Tinel’s sign over the tarsal tunnel bilaterally. He
reported tenderness with palpation in the intermetatarsal spaces centrally with the most intense
area being the second intermetatarsal space bilaterally.
In an October 16, 2014 treatment note, Dr. Kaminsky again recounted appellant’s
description of her foot pain. On physical examination, she found the same pain pattern as
demonstrated on July 24, 2014. Dr. Kaminsky noted that appellant’s EMG study showed tarsal
tunnel syndrome bilaterally. She again reported that, other than pain, appellant’s physical
examination seemed to be very normal. Dr. Kaminsky found that compression around the tarsal
tunnel was giving appellant pain at the ankle, heel, arch, and on the entire plantar service of the
feet bilaterally. She concluded that appellant had failed conservative care and needed to consider
surgical correction.
On November 18, 2014 Dr. Kaminsky reported that appellant had injured her right second
toe on a hard object one month earlier. She found that appellant had torn the dorsal ligament of
the distal interphalangeal joint of the right second toe. Dr. Kaminsky examined appellant on
December 16, 2014 and noted that she had traumatically torn a ligament in the dorsal capsule of
her right second toe. She opined that appellant’s problem was not caused by the injury to the right
second toe. Dr. Kaminsky recommended further electrodiagnostic testing to ensure that she was
not overlooking secondary signs of tarsal tunnel syndrome or capsular injury the right second
metatarsal phalangeal joint.
By decision dated October 24, 2019, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee ha s returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work when a light-duty assignment, made
specifically to accommodate an employee’s physical limitations due to work-related injury or
illness, is withdrawn or altered so that the assignment exceeds the employee ’s physical limitations.
A recurrence does not occur when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties, or a reduction-in-force.5

4

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020).

5

Id.

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When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury -related
condition or a change in the nature and extent of the limited-duty job requirements.6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. 7 Where no such rationale is present, the medical evidence is
of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
First, the Board notes that appellant did not allege, and the evidence does not establish, a
change in the nature and extent of appellant’s light-duty work requirements. Additionally, there
is no indication in the record that the employing establishment withdrew a light-duty work
assignment. The remaining issue is whether the medical evidence demonstrated a worsening of
appellant’s accepted bilateral foot conditions such that she could not perform limited -duty work.
After returning to part-time limited-duty work on May 22, 2010, appellant again sought
medical treatment from Dr. Kaminsky beginning on July 24, 2014. Thereafter, Dr. Kaminsky
diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic ankle and foot
pain. On August 19, 2014 she provided permanent work restrictions. Appellant also sought
treatment October through December 2014. In a December 16, 2014 form report, Dr. Kaminsky
diagnosed plantar fasciitis as well as tarsal tunnel syndrome and found that appellant was totally
disabled from September 25, 2014 through January 9, 2015. She did not, however, offer an
opinion on causal relationship between appellant’s claimed disability and factors of her federal
employment. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition or disability is of no probative value. 9 As such, these reports
are of no probative value and do not establish appellant’s disability claim.
In a series of reports, she attributed appellant’s disability from work to chronic changes
from her long-term tarsal tunnel syndrome. Dr. Kaminsky noted that appellant’s symptoms of
pain in the right second and third intermetatarsal spaces were consistent with pain that could radiate
from tarsal tunnel syndrome. She also listed appellant’s findings on physical examination
6

S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

7

J.M., Docket No. 19-1517 (issued January 29, 2020); Ronald A. Eldridge, 53 ECAB 218 (2001); Mary A. Ceglia,
Docket No. 04-0113 (issued July 22, 2004).
8

Id.

9

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

6

including positive Tinel’s sign of the tarsal tunnel bilaterally and pain upon palpation of the medial
tarsal tunnel, flexor hallucis brevis, and the arch. The Board notes that pain is a symptom, not a
compensable medical diagnosis. 10 Dr. Kaminsky did not provide medical rationale supporting an
objective worsening of the accepted conditions between September 25, 2014 and July 14, 2015
such that appellant could no longer perform her modified-duty position. The Board has held that
reports are of limited probative value regarding causal relationship if they do not contain medical
rationale explaining how a given medical condition/disability was related to the accepted
employment injuries.11
In a February 22, 2016 attending form report, Dr. Kaminsky diagnosed chronic changes
from long-term tarsal tunnel syndrome, including EMG findings, a positive Tinel’s sign, and
musculoskeletal swelling. She checked a box marked “Yes” indicating that appellant’s condition
was caused or aggravated by employment activities and listed walking, standing and weight bearing of postal equipment. Dr. Kaminsky found that she was totally disabled from
September 25, 2014 through July 13, 2015. The Board has held that a report that addresses causal
relationship with an affirmative checkmark, without medical rationale explaining how the
employment injuries resulted in the period of disability, is of diminished probative value and
insufficient to establish causal relationship.12
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work because of
increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell also found a negative Tinel’s sign over the tarsal tunnel bilaterally.
However, he did not address whether appellant was disabled from work during the claimed period.
As Dr. Liddell did not address the claimed dates of disability, his opinion is insufficient to establish
her claim.13
Appellant also submitted diagnostic studies. The Board has held, however, that diagnostic
studies, standing alone, lack probative value as they do not address whether the employment injury
caused any period of disability. 14 These reports are therefore insufficient to establish the claim.

10

R.S., Docket No. 19-1131 (issued April 2, 2020).

11

G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019);
Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).
12

J.B., Docket No. 18-1751, 19-0793 (issued May 6, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019);
Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).
13

M.L., Docket Nos. 18-1058, 18-1224 (issued November 21, 2019); T.L., Docket No. 18-0934 (issued May 8,
2019); Sandra D. Pruitt, 57 ECAB 126 (2005).
14

M.J., Docket No. 19-1287 (issued January 13, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

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Appellant also submitted notes from Mr. Harthill, a physical therapist. As physical
therapists are not considered physicians under FECA, his reports are insufficient to establish
entitlement to compensation benefits. 15
As the medical evidence of record is insufficient to establish a recurrence of disability from
work for the period September 25, 2014 through July 14, 2015 causally related to the accepted
employment conditions, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.

Section 8101(2) of FECA provides that a physician includes: “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.B., supra note 12; T.K., Docket No. 19-0055 (issued
May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants,
and physical therapists are not competent to render a medical opinion under FECA).
15

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ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, OAKLAND POSTAL
& DISTRIBUTION CENTER, Oakland, CA,
Employer
__________________________________________

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

Docket No. 07-1944
Issued: January 18, 2008

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 July 17, 2007 appellant filed a timely appeal from a May 3, 2007 decision of the
Office of Workers’ Compensation Programs that denied her claim for disability compensation
for the period December 11, 2006 to January 29, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she was
entitled to compensation for temporary total disability from December 11, 2006 to January 29,
2007, as a result of her April 18, 2006 employment injury.
FACTUAL HISTORY
On July 12, 2006 appellant, then a 59-year-old registry clerk, filed a traumatic injury
claim stating that she sustained left leg pain and back pain and spasms on April 18, 2006, when a
coworker lost his balance and fell against the back of her chair. She did not initially stop work.

On May 25, 2006 Dr. David Wren, a Board-certified orthopedic surgeon, noted
appellant’s complaints of low back pain. He found that appellant had neck and back muscle
spasms and reduced motion. In an August 1, 2006 report, Dr. Susan Lambert, a Board-certified
occupational medicine specialist, explained that appellant related that a coworker fell against the
back of her chair, pushing her into her desk. She diagnosed lumbosacral strain and noted that
appellant had a history of disc disease. On August 15, 2006 Dr. Jeffrey Lee Gao, a general
practitioner, diagnosed lumbosacral strain and noted that appellant was advised to work modified
duty.
On February 4, 2007 the employing establishment offered appellant a modified-duty
assignment. Appellant accepted the assignment on February 13, 2007.
In a February 12, 2007 duty status report, Dr. Wren noted magnetic resonance imaging
(MRI) “scan findings, surgical findings, abnormal physical findings” and diagnosed lumbar disc
disease, carpal tunnel syndrome and bursitis tendinitis. He advised that appellant was able to
work with restrictions.
On March 11, 2007 appellant filed a claim for compensation for leave without pay and
other wage loss from December 11, 2006 to January 29, 2007.
On March 29, 2007 the Office accepted appellant’s claim for lumbosacral strain. By
correspondence dated the same day, the Office requested additional information concerning
appellant’s claim for disability compensation.
Appellant provided a January 19, 2007 note from Dr. Wren stating that appellant was
seen in his office on the same day “for her job injury.” Dr. Wren stated that appellant was
released to work with restrictions effective January 20, 2007.
By decision dated May 3, 2007, the Office denied appellant’s claim for disability
compensation for the period December 11, 2006 to January 29, 2007 on the grounds that she did
not submit medical evidence in support of her claim for wage loss.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim, including that any specific condition
or disability for which she claims wage-loss compensation is causally related to the employment
injury.2 Compensation for wage loss is available only for periods during which an employee’s
accepted condition prevents her from earning his wages.3 Even if the Office has accepted that
appellant sustained an injury in the performance of duty, appellant still has the burden of
establishing that her accepted condition resulted in disability during the specific periods for

1

5 U.S.C. § 8101 et seq.

2

Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

Judith A Cariddo, 55 ECAB 348 (2004); see also 20 C.F.R. § 10.500(a).

2

which she is claiming compensation.4 Whether a particular injury causes an employee to be
disabled for work and the duration of that disability are medical issues that must be proven by a
preponderance of the reliable, probative and substantial medical evidence.5
ANALYSIS
The Board finds that appellant did not meet her burden of proof in establishing that she
was entitled to compensation for total disability from December 11, 2006 to January 29, 2007.
The record reflects that the Office accepted her claim for lumbosacral strain. However, appellant
did not provide medical evidence supporting that she was totally disabled from work from
December 11, 2006 to January 29, 2007 due to her accepted injury.6
Appellant submitted several medical reports in support of her claim. Dr. Wren’s May 25,
2006 report, Dr. Lambert’s August 1, 2006 report and Dr. Gao’s August 15, 2006 report all
supported appellant’s claim for lumbosacral strain, which the Office accordingly accepted.
However, these reports predated appellant’s claimed disability from December 11, 2006 to
January 29, 2007 and therefore do not apply to the instant issue.
On January 19, 2007 Dr. Wren stated that appellant was seen in his office on that date in
relation to her “job injury.” However, he did not detail whether a physical examination was
performed and what treatment, if any, was administered. He did not explain if work restrictions
were due to the employment injury. Moreover, Dr. Wren’s statement that he saw appellant on
January 19, 2007 is not sufficient to establish that she was totally disabled from work either on
that date or on any other date between December 11, 2006 and January 29, 2007. He did not
state unequivocally that appellant was totally disabled during the time period claimed and did not
provide a full explanation of how her disability, if any, related to her April 18, 2006 employment
injury.
Appellant also provided a February 12, 2007 duty status report from Dr. Wren, who
diagnosed lumbar disc disease, carpal tunnel syndrome and bursitis tendinitis. However,
Dr. Wren did not address appellant’s disability, if any, between December 11, 2006 and
January 29, 2007. He neither stated that appellant was totally incapacitated during that time nor
explained why she was unable to work, if indeed she was disabled. Because Dr. Wren’s
February 12, 2007 duty status report does not offer an opinion on appellant’s claimed disability
and the causes thereof, it is not probative on the issue of whether she is entitled to compensation
for total disability from work between December 11, 2006 and January 29, 2007.

4

Dorothy J. Bell, 47 ECAB 624 (1996).

5

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

6

On appeal, appellant submitted additional medical evidence. The Board, however, notes that it cannot consider
this evidence for the first time on appeal because the Office did not consider this evidence in reaching its final
decision. The Board’s review is limited to the evidence in the case record at the time the Office made its final
decision. 20 C.F.R. § 501.2(c).

3

CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
was entitled to compensation for temporary total disability from December 11, 2006 to
January 29, 2007.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 18, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 18-1813
Issued: April 1, 2019

Case Submitted on the Record

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

JURISDICTION
On September 28, 2018 appellant, through counsel, filed a timely appeal from an
August 20, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted June 5, 2017 employment incident.
FACTUAL HISTORY
On June 6, 2017 appellant, then a 56-year-old carrier, filed a traumatic injury claim (Form
CA-1) alleging that on June 5, 2017 she stepped into a hole in the pavement and twisted her right
ankle, knees, and back and sustained cuts on her left knee while in the performance of duty. No
evidence was submitted with her claim. On the reverse side of the claim form, the employing
establishment controverted the claim.
In a June 19, 2017 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of medical evidence
required. OWCP afforded appellant 30 days to provide the requested information.
OWCP subsequently received a lumbar spine x-ray report dated June 15, 2017 from
Dr. Sushil Sabnis, a Board-certified diagnostic radiologist, who provided an impression of interval
moderate convex curvature to the left lumbar spine with sclerosis noted adjacent to the left-sided
facets at L4-5 most compatible with degenerative change. Dr. Sabnis related that, if indicated,
then correlation of magnetic resonance imaging could be performed. He also provided an
impression that diffuse lumbar spondylitis changes were noted.
Progress notes dated June 15 and 29, 2017 from Jacob J. Finer, a certified physician
assistant, were also received.
In a progress note dated July 6, 2017, Dr. Derek J. Orton, a Board-certified orthopedic
surgeon, noted that appellant presented with a chief complaint of back problem and numbness in
her left leg. He related a history that following a fall on June 5, 2017 she had worsening back and
lower extremity symptoms. Dr. Orton noted appellant’s medical, family, and social history,
provided findings on physical examination, and reviewed diagnostic test results. He diagnosed
lumbar stenosis at L3-4, L4-5, and L5-S1; right L3 radiculopathy; left L4 radiculopathy; sacroiliac
joint dysfunction; multilevel discogenic low back pain; and lumbar degenerative scoliosis.
Dr. Orton advised appellant to remain off work with activity modification until she received
injections.
By decision dated July 20, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish a medical diagnosis in connection with the
accepted June 5, 2017 employment incident and, thus, she had not met the requirements for
establishing an injury under FECA.
OWCP subsequently received a return to work report dated June 13, 2017 from Shannon
Whitaker, a nurse practitioner.
On January 23, 2018 appellant, through counsel, requested reconsideration of the July 20,
2017 decision. Appellant submitted additional medical evidence from Ms. Whitaker and

2

Mr. Finer. She also submitted medical evidence from Jazmine Hernandez and Jennifer S.
Valdivia, medical assistants.
A duplicate copy of Dr. Orton’s July 6, 2017 progress note was resubmitted with the
addition of diagnoses that included: displacement of lumbar intervertebral disc without
myelopathy; primary, thoracic, and lumbosacral neuritis; and kyphoscoliosis.
Dr. Sarah E. Reimer, Board-certified in diagnostic radiology and nuclear medicine,
reported on July 13, 2017 that a right ankle x-ray revealed interval progression of degenerative
changes and no acute finding.
By decision dated August 20, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.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 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 generally can be established only by medical evidence.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such causal
relationship.7 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.8 The weight of medical evidence is
3

Supra note 2.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

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

7

See S.A., Docket No. 18-0399 (issued October 16, 2018).

8

See P.M., Docket No. 18-0287 (issued October 11, 2018).

3

determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted June 5, 2017 employment incident.
Appellant submitted Dr. Orton’s July 6, 2017 progress notes in which he related a history
of the June 5, 2017 employment incident and diagnosed lumbar stenosis at L3-4, L4-5, and L5-S1;
right L3 radiculopathy; left L4 radiculopathy; sacroiliac joint dysfunction; multilevel discogenic
low back pain; and lumbar degenerative scoliosis. Dr. Orton also diagnosed displacement of
lumbar intervertebral disc without myelopathy; primary, thoracic, and lumbosacral neuritis, and
kyphoscoliosis. He removed appellant from work with activity modifications until she received
injections. The Board finds that Dr. Orton has not provided an opinion as to the cause of the
diagnosed conditions. The Board has held that medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.10
Appellant also submitted diagnostic test reports of Dr. Sabnis and Dr. Reimer. The Board
has long held that diagnostic studies lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.11 These reports are therefore of
insufficient probative value to establish the claim.
Appellant also submitted reports from Mr. Finer, a physician assistant, Ms. Whitaker, a
nurse practitioner, and Ms. Hernandez and Ms. Valdivia, medical assistants. The Board has held
that medical reports signed solely by such health care providers, are of no probative value as they
are not considered physicians as defined under FECA and therefore are not competent to provide
a medical opinion.12
As the record lacks rationalized medical evidence establishing causal relationship between
the June 5, 2017 employment incident and appellant’s diagnosed lumbar and thoracic conditions,
the Board finds that appellant has not met her burden of proof.

9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

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

11

See J.S., Docket No. 17-1039 (issued October 6, 2017).

12

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA); S.J., Docket No. 17-0783, n.2 (issued
April 9, 2018) (nurse practitioners are not considered physicians under FECA); Y.T., Docket No. 17-1559 (issued
March 20, 2018) (medical assistants are not considered physicians under FECA).

4

On appeal counsel contends that OWCP’s August 20, 2018 decision is contrary to fact and
law. For the reasons set forth above, the Board finds that the medical evidence of record is
insufficient to establish that appellant sustained an injury causally related to the accepted June 5,
2017 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 has not met her burden of proof to establish an injury
causally related to the accepted June 5, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Scranton, PA, Employer
__________________________________________

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Appearances:
Michael R. Mey, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0418
Issued: January 6, 2022

Case Submitted on the Record

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

JURISDICTION
On January 28, 2021 appellant, through counsel, filed a timely appeal from a January 12,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the 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
The Board notes that, following the January 12, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 34
percent permanent impairment of the right lower extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 29, 1994 appellant, then a 46-year old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date he was ascending stairs to deliver mail when the steps gave
way, causing him to fall and sustain a right knee injury while in the performance of duty. He
underwent right knee arthroscopic surgery, including a partial medial meniscectomy, on
June 3, 1996. OWCP accepted the claim for right knee sprain. On August 7, 1998 it expanded
the acceptance of the claim to include right medial meniscus tear, fracture tibia plateau, and
degenerative joint disease of the right knee. On February 22, 2013 OWCP again expanded the
acceptance of the claim to include localized primary osteoarthritis of the right lower extremity.
By decision dated September 16, 1998, OWCP found that appellant had 20 percent
permanent impairment of the right lower extremity in accordance with the fourth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).5
On January 9, 2014 appellant underwent a total right knee replacement surgery.
By decision dated May 12, 2015, OWCP granted appellant a schedule award for an
additional one percent permanent impairment of the right lower extremity in accordance with the
sixth edition of the A.M.A., Guides, for a total of 21 percent.6
Subsequently, appellant requested a hearing before a representative of OWCP’s Branch of
Hearings and Review. A hearing was held on December 14, 2015.
By decision dated February 22, 2016, OWCP’s hearing representative set aside the
May 12, 2015 schedule award decision and remanded the case for further development.
By decision dated March 14, 2016, OWCP found that appellant was not entitled to an
additional schedule award.

4

Docket No. 17-0498 (issued June 5, 2017).

5

A.M.A., Guides (4 th ed. 1993).

6

Id. at 6 th ed. (2009).

2

On April 5, 2016 appellant, through counsel requested a hearing before a representative of
OWCP’s Branch of Hearings and Review. A hearing was held on July 13, 2016.
By decision dated August 30, 2016, the hearing representative affirmed the March 14, 2016
OWCP decision.
On September 13, 2016 appellant, through counsel, requested reconsideration.
additional evidence was received.

No

By decision dated December 9, 2016, OWCP denied appellant’s request for
reconsideration of the merits of his claim.
Appellant appealed to the Board. By decision dated June 5, 2017,7 the Board set aside the
August 30, 2016 OWCP decision and remanded the case to OWCP for further development of the
medical evidence including a second opinion examination and opinion as to the permanent
impairment to his right lower extremity.
OWCP subsequently received an October 20, 2017 report, wherein Dr. William J.
Krywicki, a Board-certified orthopedic surgeon, performed a physical examination and found that
appellant’s right knee had range of motion (ROM) of “about 10 degrees” of flexion contracture
and 95 degrees of flexion. Dr. Krywicki reported slight increase in anterior play and clicking in
the knee joint. He determined that appellant had a flexion and extension gap and balance issue as
well as increasing play possibly resulting from the patella overstuffing the extensor mechanism.
Dr. Krywicki opined that surgical intervention was the only way of improving appellant’s ROM.
On remand OWCP referred appellant, a statement of accepted facts (SOAF), and a list of
questions to Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon, for a second opinion
examination in order to determine whether appellant had additional right lower extremity
permanent impairment in accordance with the A.M.A., Guides. In a February 14, 2018 report,
Dr. Draper reviewed the SOAF and accepted conditions. He reported that appellant lacked 13
degrees of extension and had 72 degrees of flexion in the right knee. Dr. Draper found no
instability, negative posterior drawer sign, negative Lachman’s sign, and positive anterior drawer
sign. He also found that appellant had reached maximum medical improvement. Dr. Draper rated
appellant’s impairment based on the diagnosis-based impairment (DBI) estimate, utilizing Table
16-3, page 511 of the A.M.A., Guides for total knee replacement. He found that appellant had a
poor result, class IV, because of severe loss of ROM, and his reports of pain. Dr. Draper found
that the default grade was 67 percent impairment and applied the net adjustment formula, with
grade modifier functional history (GMFH) of 2, grade modifier physical examination (GMPE) of
4, and grade modifier clinical studies (GMCS) of 1, to reach a net adjustment of -5, resulting in 75
percent permanent impairment of the right lower extremity.
In a March 1, 2018 supplemental report, Dr. Draper clarified that the net adjustment of -5
resulted in grade A, or 59 percent impairment of the right lower extremity due to total knee
replacement with a poor result due to moderate-to-severe motion deficit, in accordance with the
A.M.A., Guides rather than the previously found 75 percent permanent impairment, which would
7

Supra note 4.

3

have resulted from a net adjustment of +5. He further provided three ROM measurements,
performed after warm up, of flexion 72, 67, and 67 degrees resulting in 20 percent permanent
impairment, and flexion contraction of 13, 19, and 17 degrees or 19 8 percent permanent
impairment in accordance with Table 16-23, page 549. Dr. Draper found that when utilizing the
ROM method with ROM grade modifier 3, that the GMFH of 2, resulted in a net adjustment of 3
or 45 percent permanent impairment of the right lower extremity due to loss of ROM in accordance
with Table 16-17, page 545 of the A.M.A., Guides. He concluded that the DBI estimate of 59
percent was greater and therefore more appropriate.
On May 28, 2019 appellant filed a claim for compensation (Form CA-7) for an additional
schedule award.
In an August 15, 2019 report, Dr. Herbert White, Jr., a Board-certified specialist in
occupational medicine serving as OWCP district medical adviser (DMA), noted that appellant had
previously received right lower extremity schedule awards totaling 21 percent permanent
impairment. He indicated that he was unable to rate the impairment with the information in the
record. The DMA found that Dr. Draper’s ROM figures for flexion of 72 degrees of flexion
contracture were significantly different from those previously obtained by Dr. Krywicki of 95
degrees and that his ROM of 19 degrees for flexion contracture was greater than that of
Dr. Krywicki.9 He therefore determined that Dr. Draper’s figures were inconsistent and unreliable.
The DMA further found that Dr. Draper’s ROM figures could not be used to determine a class 4
rating and that a class 3 rating was more appropriate. He determined that appellant’s class of
diagnosis was 3, good result, mild instability, in accordance with Table 16-3, page 511 of the
A.M.A., Guides. Dr. White indicated that he had a GMFH of 2 due to an antalgic gain, GMPE of
3 due to severe atrophy and tenderness, and that GMCS was excluded. He applied the net
adjustment formula and determined that the net adjustment was -1 resulting in a final right lower
extremity impairment of 34 percent permanent impairment.
By decision dated November 8, 2019, OWCP granted appellant a schedule award for an
additional 13 percent permanent impairment of his right lower extremity for a total right lower
extremity impairment rating of 34 percent permanent impairment. The award ran for 37.44 weeks
for the period February 14 to November 3, 2018.
On October 19, 2020 appellant, through counsel, requested reconsideration. Counsel
disagreed with the findings of the DMA and contended that there was no basis to disc ount the
physical findings of Dr. Draper.
By decision dated January 12, 2021, OWCP denied modification of its prior decision.

8

A.M.A., Guides, 549, Table 16-23 indicated that flexion contracture of 10 degrees to 19 degrees is 20 percent
permanent impairment of the lower extremity, while flexion contracture of greater than 19 degrees is a severe or 35
percent permanent impairment of the lower extremity.
9

Dr. White indicated that Dr. Krywicki had found 0 degrees of flexion contracture, while the Board notes that his
report repeatedly states 10 degrees of flexion contracture.

4

LEGAL PRECEDENT
The schedule award provisions of FECA 10 and its implementing federal regulations 11 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 b e determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has
concurred in such adoption. 12 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 13
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that DBI is the primary method of calculation for the lower limb and that mo st
impairments are based on the DBI where impairment class is determined by the diagnosis and
specific criteria as adjusted by the grade modifiers for functional history, physical examination,
and clinical studies. It further provides that alternative approaches are also provided for calculating
impairment for peripheral nerve deficits, complex regional pain syndrome, amputation, and ROM.
ROM is primarily used as a physical examination adjustment factor. 14 The A.M.A., Guides,
however, also explain that some of the diagnosis-based grids refer to the ROM section when that
is the most appropriate mechanism for grading the impairment. This section is to be used as a
stand-alone rating when other grids refer to this section or no other diagnosis-based sections of the
chapter are applicable for impairment rating of a condition.15
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509. 16 After the CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).17 Under Chapter 2.3, evaluators

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id.; see V.J., Docket No. 19-1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
14

A.M.A., Guides (6 th ed. 2009) 497, section 16.2.

15

Id. at 543; see also M.D., Docket No. 16-0207 (issued June 3, 2016); D.F., Docket No. 15-0664 (issued
January 8, 2016).
16

Id. at 509-11.

17

Id. at 515-22.

5

are directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores. 18
ANALYSIS
The Board finds that this case is not in posture for decision.
On remand from the Board’s June 5, 2017 decision, OWCP referred appellant’s case to
Dr. Draper for a second-opinion evaluation in order to determine whether appellant had sustained
additional right lower extremity permanent impairment in accordance with the A.M.A., Guides.
In February 14 and March 1, 2018 reports, Dr. Draper provided three ROM measurements for
appellant’s right knee. He utilized the ROM method under the A.M.A., Guides and calculated that
appellant had 45 percent permanent impairment due based on findings of 72 degrees of flexion, 20
percent permanent impairment in accordance with Table 16-23, page 549, and 19 degrees of
flexion contraction, 19 percent permanent impairment extremity permanent impairment. 19 Under
the DBI method, Dr. Draper referenced Table 16-3, page 511 of the A.M.A., Guides for total knee
replacement and found 59 percent permanent impairment. He explained that, since the DBI
impairment rating method was more substantial, appellant had 59 percent right lower extremity
permanent impairment. However, Dr. Draper did not provide rationale explaining why he lowered
the percentage of impairment from 75 to 59 percent.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done. 21 Once OWCP undertakes to develop the medical evidence fu rther, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case. 22 Accordingly,
as OWCP undertook development of the evidence by referring appellant to a second -opinion
physician, it has a duty to secure an appropriate report addressing the relevant issues.23
arbiter.20

The Board thus finds that further development of the medical evidence is required to
determine the extent of appellant’s permanent impairment for schedule award purposes since
Dr. Draper failed to provide a rationalized opinion on permanent impairment in accordance with
the relevant standards. 24 On remand, OWCP should refer him back to Dr. Draper or to another
18

Id. at 23-28.

19

Supra note 9.

20

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
21

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
22

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

23

M.S., Docket No. 19-1401 (issued July 8, 2020); B.W., Docket No. 19-0965 (issued December 3, 2019).

24

M.A., Docket No. 19-1732 (issued September 9, 2020).

6

second-opinion physician in the appropriate field of medicine. The second-opinion physician
should provide an impairment rating in keeping with the appropriate protocols of the A.M.A.,
Guides. After this and other such further development as deemed necessary, OWCP shall issue a
de novo decision regarding appellant’s right lower extremity permanent impairment.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 12, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 6, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN J. PERSHING VETERANS MEDICAL
CENTER, Popular Bluff, MO, Employer
__________________________________________

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

Docket No. 09-2117
Issued: June 29, 2010

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 August 17, 2009 appellant filed a timely appeal of a March 27, 2009 Office of
Workers’ Compensation Programs’ decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of appellant’s case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
emotional condition due to factors of her federal employment.
FACTUAL HISTORY
On September 15, 2008 appellant, then a 58-year-old voluntary service specialist, filed a
notice of occupational disease, alleging that she experienced an anxiety attack on
September 11, 2008.1 She submitted a memorandum dated September 11, 2008 addressed to her
1

Appellant has a separate claim accepted by the Office for anxiety state on March 4, 2009.

supervisor, Stan Skorniak, stating that she had requested that the detail of Kevin Ellis end in
January 2008 because he would not take her directions, made too many clerical mistakes and
would not listen to or work with her. In April 2008 appellant stated that she did not want
Mr. Ellis back in her office. Her supervisor determined that she could not be objective and that
she could not have any input into the interview or selection process. Mr. Ellis was selected as
appellant’s assistant and instructed to take directions from her. Appellant set up weekly
meetings because Mr. Ellis would not listen to her, stopped following her directions and began to
give her instructions. She alleged that he refused to make copies of a check, letter and envelope
as repeatedly requested. Mr. Ellis also directed appellant to get some paper out of the closet for
him. On August 27, 2008 appellant again informed Mr. Ellis that he was to follow her direction,
and he left the department without telling her. She experienced stress as a result of Mr. Ellis’
lack of cooperation. Appellant requested that he be detailed to another job.
In a letter dated November 20, 2008, the Office requested additional factual and medical
information from appellant. In an August 2008 statement, Beverly Adams, a volunteer, noted
that appellant had asked Mr. Ellis to print a picture and he told appellant to get the paper out of
the closet. Jacqueline B. Sterrette, a volunteer, completed a statement on October 8, 2008 and
alleged that Mr. Ellis was often not in his office and frequently yelled on the telephone. She
stated that Mr. Ellis asked her to do work which she knew was his.
In a September 22, 2008 report, Dr. Edith Hickey, a Board-certified family practitioner,
stated that appellant reported chest pain and stress at work. The pain was consistent with anxiety
and appellant experienced difficulty with a particular person at work. Dr. Naveed J. Mirza, a
Board-certified psychiatrist, completed a report on December 8, 2008.
She diagnosed
generalized anxiety disorder and work-related stresses including ongoing conflict with her
assistant who had trouble following directions and fulfilling his job responsibilities.
Appellant alleged that Mr. Ellis failed to process the paperwork for the volunteer drivers
as required by the first of every month. She submitted e-mails requesting that he print out a
program on Monday and his response that he would do so on Wednesday. Appellant stated that
this delay would not allow the program to be completed in time and that she printed out the
programs. She requested overtime to complete the program that Mr. Skorniak approved.
Mr. Ellis made an illegal purchase with his employing establishment credit card, was frequently
out of the office, made many typographical errors, and was not trustworthy. She submitted a
statement dated July 1, 2008 that Mr. Ellis had directed student volunteers to perform work
outside their assignments. On June 9, 2008 Mr. Ellis did not call for printer repair as she
requested. Appellant provided Mr. Ellis with e-mails on July 8, 2008 and July 10, 2008
reminding him that creating new assignments and position descriptions for volunteers was part of
her position description. Mr. Ellis responded that she not send him any more such e-mails.
Appellant stated that Mr. Ellis improperly ordered fish food on July 11, 2008 with his employing
establishment account.
On September 12, 2008 appellant participated in a meeting with Mr. Skorniak, Mr. Ellis
and union representatives. She experienced an anxiety attack while relating the circumstances
which led to her prior emotional condition. Appellant also attributed her condition to the actions
of the Equal Employment Opportunity counselor, who informed her that she had no basis for a
claim. On September 19, 2008 she alleged that Mr. Ellis made untrue statements about her

2

including that, if she forgot her medicine, she would become upset and that appellant had
instructed him incorrectly about making purchases.
On January 8, 2009 Mr. Skorniak stated that he was appellant’s direct supervisor and that
he had to rely on appellant to run the voluntary services. Appellant was not asked to participate
in the hiring selection of her assistant because she was biased against Mr. Ellis. Mr. Skorniak
stated that he instituted weekly meetings to address appellant’s concerns with Mr. Ellis. He
noted that she became very emotional during a September 12, 2008 meeting and that she was
advised that Mr. Ellis could not be detailed elsewhere. Mr. Skorniak requested that appellant
submit to a fitness-for-duty examination due to her emotional outbursts at the September 12,
2008 meeting. He submitted an outline of the duties of appellant and Mr. Ellis which stated that
appellant gave direction to Mr. Ellis.
Appellant returned to work on October 10, 2008 and stated that she was able to work
without further anxiety attacks.
By decision dated March 27, 2009, the Office denied appellant’s claim finding that she
failed to substantiate a compensable factor of employment which she felt caused or contributed
to her diagnosed emotional condition.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, a claimant must submit: (1) medical evidence establishing that she has an emotional or
stress-related disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
stress-related condition.2 If a claimant does implicate a factor of employment, the Office should
then determine whether the evidence of record substantiates that factor.3 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.6
There are situations where an injury or illness has some connection with the employment but

2

Leslie C. Moore, 52 ECAB 132 (2000).

3

Dennis J. Balogh, 52 ECAB 232 (2001).

4

Id.

5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

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nevertheless does not come within coverage under the Act.7 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.8 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.10 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.11
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under the Act. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.12
ANALYSIS
Appellant, a supervisor, was assigned Mr. Ellis as an assistant. She developed an
emotional condition due to actions he took which she alleged created a hostile work
environment. Appellant stated that Mr. Ellis refused to follow her instructions, usurped her
duties such as assigning tasks for the volunteers, and asked her to provide him with paper to
complete a requested task.
Appellant has attributed her emotional condition to her regular employment duties of
acting in a supervisory capacity in regard to Mr. Ellis. Appellant’s duties include giving
directions and work assignments to Mr. Ellis. She alleged that he did not follow her instructions
and submitted several e-mails indicating that Mr. Ellis did not complete a project within the
7

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

8

Lillian Cutler, supra note 5.

9

Roger Williams, 52 ECAB 468 (2001).

10

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

11

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
12

Alice M. Washington, 46 ECAB 382 (1994).

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deadline. Appellant was then required to use overtime in order to complete the project. The
requirement that appellant supervise Mr. Ellis and complete work not finished by Mr. Ellis in a
timely manner relate to her regular or specially assigned duties under Cutler and constitute an
employment factor.
Appellant stated that Mr. Ellis issued instructions to her by requesting that she locate and
provide the paper he needed to complete an assignment. She submitted a witness statement
supporting this allegation. Appellant stated that she did not provide the paper. This allegation
does not relate to appellant’s regular or specially assigned work duties as there was no
requirement that appellant provide the paper and in fact she did not do so. This allegation simply
relates to appellant’s perception that Mr. Ellis acted improperly by asking his supervisor to get
some photo paper out of a closet. The Board finds that appellant’s emotional reaction is selfgenerated in that it resulted from her perceptions regarding her status.13
Appellant also alleged that Mr. Ellis created a hostile work environment by leaving his
office, taking over appellant’s duties and generally not following appellant’s instructions. She
has not submitted any witness statements or other evidence corroborating that these events
occurred as alleged. As appellant did not submit any evidence to substantiate these allegations,
the Board finds that appellant has not established a compensable employment factor under the
Act with respect to these allegations.
Appellant has established an employment factor as it pertains to her responsibility to
supervise Mr. Ellis and to complete any unfinished work. As she has established a compensable
employment factor, the Office must base its decision on an analysis of the medical evidence.
The Office found that there were no compensable factors of employment and did not analyze or
develop the medical evidence. The case will be remanded to the Office for this purpose. After
such further development as deemed necessary, the Office should issue an appropriate decision
on this claim.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an emotional condition in the performance of duty. Appellant has established
employment factors as described above and the case is remanded to the Office for further
development consistent with this decision of the Board.

13

J.C., 58 ECAB 594 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the March 27, 2009 decision of Office of Workers’
Compensation Programs is set aside and the case remanded to the Office for proceedings
consistent with this decision of the Board.
Issued: June 29, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPORT ACTIVITY, Annapolis, MD,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-313
Issued: August 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 26, 2012 appellant filed a timely appeal of a November 8, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for a hearing. He
also filed a timely appeal of an August 6, 2012 merit decision. 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 the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a traumatic injury while in the performance of duty on March 24, 2012; and
(2) whether OWCP properly denied his request for a hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 19, 2012 appellant, then a 60-year-old supervisory police officer, filed a
traumatic injury claim alleging that he was kneeling at a firing range on March 24, 2012 when he
sustained a bilateral knee condition. OWCP informed him in a June 29, 2012 letter that medical
evidence was needed to establish his claim. It provided appellant 30 days to submit a report
from a qualified physician explaining how the accepted March 24, 2012 employment incident
was causally related to a diagnosed injury. OWCP did not receive a response.
By decision dated August 6, 2012, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that the March 24, 2012 work event caused or contributed to a
bilateral knee condition. A copy of the decision was mailed to his address of record.
Appellant filed a request for a telephonic hearing. The postmark of the envelope
containing the request was dated October 1, 2012. Appellant provided a July 6, 2012 note from
Dr. Gregg A. Ferrero, a Board-certified orthopedic surgeon, diagnosing bilateral knee pain, knee
joint osteoarthritis and chondromalacia patellae.
By decision dated November 8, 2012, OWCP denied appellant’s hearing request on the
grounds that it was not made within 30 days after the issuance of the August 6, 2012 merit
decision. After considering whether to grant a discretionary hearing, OWCP determined that the
issue could be further addressed by requesting reconsideration and submitting additional
evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.5

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

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

5

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

2

Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish that he sustained a traumatic injury while
in the performance of duty. Although OWCP accepted that he was kneeling at a firing range on
March 24, 2012, he did not provide a medical report from a qualified physician explaining how
this employment incident was causally related to a diagnosed injury. Moreover, appellant did
not respond to OWCP’s June 29, 2012 letter asking for such evidence to be submitted within 30
days. Because he did not offer any medical evidence demonstrating that the accepted March 24,
2012 work event caused or contributed to a diagnosed condition, he failed to establish a
prima facie claim for compensation.7
The Board notes that appellant submitted new evidence on appeal and after issuance of
the August 6, 2012 decision. The Board lacks jurisdiction to review evidence for the first time
on appeal.8
Appellant may submit new evidence or argument as part of a formal 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation who is not
satisfied with a decision of the Secretary is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.9 He or she is afforded the choice of either an oral hearing or a review of the written
record.10 While a claimant is no longer entitled to an oral hearing or a review of the written
record as a matter of right if his or her request is filed past the 30-day period, OWCP may grant
the request within its discretionary power and must exercise that discretion.11

6

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

7

See Donald W. Wenzel, 56 ECAB 390 (2005).

8

20 C.F.R. § 501.2(c).

9

5 U.S.C. § 8124(b)(1); Joseph R. Giallanza, 55 ECAB 186, 190-91 (2003).

10

20 C.F.R. § 10.615.

11

See Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

3

ANALYSIS -- ISSUE 2
Appellant filed a request for a telephonic hearing on October 1, 2012,12 more than 30
days after OWCP issued its August 6, 2012 decision. Section 8124(b)(1) is unequivocal on the
time limitation for requesting a hearing.13 Because the application was not timely filed, appellant
was not entitled to a hearing.
OWCP has the discretionary power to grant a hearing when a claimant is not entitled to
one as a matter of right. In this case, it exercised this discretion in its November 8, 2012
decision, finding that appellant’s issue could be addressed by requesting reconsideration and
submitting additional evidence. This basis for denying his request for a hearing is a proper
exercise of OWCP’s authority.14 Accordingly, the Board finds that OWCP properly denied
appellant’s request for an oral hearing.
Appellant contends on appeal that he did not receive a copy of OWCP’s August 6, 2012
decision until September 4, 2012. The case record shows that such a copy was mailed to his
address of record. A notice properly addressed and duly mailed to an individual in the ordinary
course of business is presumed to have been received by that individual.15 In addition, appellant
did not present evidence of nondelivery to rebut this presumption.16
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury while
in the performance of duty on March 24, 2012. Furthermore, the Board finds that OWCP
properly denied appellant’s request for a hearing as untimely.

12

Under OWCP’s procedures, the timeliness of a request for a hearing is determined on the basis of the postmark
of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews
of the Written Record, Chapter 2.1601.4(a) (October 2011).
13

William F. Osborne, 46 ECAB 198 (1994).

14

Mary B. Moss, 40 ECAB 640, 647 (1989).

15

Marilyn K. Webb, Docket No. 00-747 (issued September 19, 2001); Newton D. Lashmett, 45 ECAB 181 (1993)
(mailbox rule).
16

See E.C., Docket No. 11-510 (issued September 8, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the November 8 and August 6, 2012 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: August 15, 2013
Washington, DC

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

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

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

5