United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pompano Beach, FL, Employer
__________________________________________

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

Docket No. 17-0730
Issued: March 6, 2018

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 February 14, 2017 appellant filed a timely appeal from a December 5, 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.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on October 17, 2016, as alleged.
FACTUAL HISTORY
On October 17, 2016 appellant, then a 30-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 17, 2016, he sustained injury to the right side of his
face when a customer punched him in the face. On the same form, appellant’s immediate
1

5 U.S.C. § 8101 et seq.

supervisor checked boxes marked “Yes” indicating that appellant was injured in the performance
of duty and that the injury was caused by a third party. The supervisor reported that the third
party was unknown and that reference should be made to a Broward County Sheriff’s report
regarding the incident. Appellant stopped work on October 18, 2016 and returned to work on
October 19, 2016.
Appellant submitted a partially completed October 17, 2016 disability certificate and an
unsigned October 17, 2016 document from Broward Health North describing pain medication
prescribed for him on that date.
In an October 27, 2016 letter sent to appellant and the employing establishment, OWCP
requested that appellant submit additional factual and medical evidence in support of his claim.
It requested that appellant complete and return a development questionnaire to provide
information concerning the October 17, 2016 incident, including whether he had a personal
relationship outside of work with the person who assaulted him, and whether he had an argument
with this person. OWCP also requested that appellant submit a copy of a police report
documenting the incident. In the same letter, it requested that the employing establishment
submit treatment notes if appellant was treated at an employing establishment medical facility.
Appellant submitted answers to OWCP’s development questionnaire. He indicated that
he was delivering mail at the time of the claimed October 17, 2016 injury. Appellant noted that
he did not have an argument with the person who assaulted him, and indicated that he did not
know him or have a personal relationship with him.
Appellant also submitted medical evidence in support of his claim, including the report of
an October 17, 2016 emergency room visit by Dr. Holly Wilson, a Board-certified emergency
medicine specialist, at which time he reported that on the same date a man approached him at
work, accused him of talking to his girlfriend, and punched him in the right side of his neck.
Dr. Wilson diagnosed blunt neck trauma.
In an Incident/Investigation Report completed on October 17, 2016, an officer of the
Broward County Sheriff’s Office indicated that on October 17, 2016 he went to a residence in
the city of Pompano Beach, Florida in response to a claimed battery which had been reported at
5:20 p.m. He noted that appellant advised that he was on duty and delivering mail on his normal
mail route in the area when a resident punched him on the side of his face. Appellant reported
that he was approached by the assailant while he was stopped and sitting in the driver’s seat of
his postal vehicle and that the assailant started accusing him of making sexual comments to his
girlfriend a few days prior. The officer noted that appellant reported telling the assailant that he
did not make any comments to his girlfriend and that the assailant suddenly struck him two times
on the right side of his jaw area. He indicated that he observed swelling to the right side of
appellant’s jaw area and that appellant was transported by ambulance to Broward Health North
with nonlife threatening injuries. The officer made contact with the girlfriend of the assailant
who reported that, three days prior (October 14, 2016), appellant approached her while
delivering mail at her residence and started commenting to her that she was pretty and that he
wanted to go inside her residence with her. The girlfriend reported that her boyfriend, the
assailant, was out of town on that date, but that upon his return she informed him of the alleged
incident. On October 17, 2016 when appellant arrived in the area, the girlfriend pointed him out

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to her boyfriend. The officer made contact with the assailant who admitted that he struck
appellant because of his girlfriend’s allegations, noting that appellant “should n[o]t have [stated]
that to his girlfriend.” He arrested the assailant for battery and took him into custody.
In a December 5, 2016 decision, OWCP denied appellant’s traumatic injury claim,
finding that the October 17, 2016 incident/assault did not occur within the performance of duty.
Although the assault occurred while appellant was working, OWCP found that it “was due to
personal issues,” noting that the Sheriff’s incident/investigation report indicated that appellant
had previously “made inappropriate comments to [the assailant’s] girlfriend….”
LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment; liability does
not attach merely upon the existence of any employee/employer relation.2 FECA provides for
the payment of compensation for disability or death of an employee resulting from a personal
injury sustained while in the performance of duty. The term in the performance of duty has been
interpreted to be the equivalent of the commonly found prerequisite in workers’ compensation
law, arising out of and in the course of employment.3 In the course of employment deals with
the work setting, the locale, and time of injury.4 In addressing this issue, the Board has noted
that to occur in the course of employment, in general, an injury must occur: (1) at a time when
the employee may reasonably be stated to be engaged in his or her master’s business; (2) at a
place where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment, or engaged in
doing something incidental thereto.5
This alone is insufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury arising out of the employment must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employing establishment benefit
is derived or an employment requirement gave rise to the injury.6
Assaults arise out of the employment either if the risk of assault is increased because of
the nature or setting of the work or if the reason for the assault was a quarrel having its origin in

2

Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20 (1948); Christine Lawrence, 36 ECAB 422 (1985).

3

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

4

Denis F. Rafferty, 16 ECAB 413 (1965).

5

Carmen B. Gutierrez (Neville R. Baugh), 7 ECAB 58 (1954).

6

See Eugene G. Chin, 39 ECAB 598 (1988).

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the work. Assaults for private reasons do not arise out of the employment unless, by facilitating
an assault that would not otherwise be made, the employment becomes a contributing factor.7
The Board has held that when animosity or a dispute which culminates in an assault is
imported into the employment from a claimant’s domestic or private life, the assault does not
arise in the performance of duty.8
ANALYSIS
On October 17, 2016 appellant was seated in his postal delivery vehicle on his assigned
route when an unknown male assailant punched him on the right side of his face. The local
Sheriff’s Office arrested the assailant for battery and he was transported to a nearby hospital for
treatment and was later released. In a December 5, 2016 decision, OWCP denied appellant’s
traumatic injury claim finding that the October 17, 2016 assault “was due to personal issues,”
and therefore, it did not arise in the performance of duty.
The Board finds that appellant’s injury on October 17, 2016 did not arise in the course of
his federal employment, and that he did not establish a traumatic injury in the performance of
duty on that date, as alleged.
The evidence of record reveals that, at the time of the assault on October 17, 2016,
appellant was engaged in the performance of his usual employment duties, i.e., delivering mail
on his usual mail route. However, time, place, and manner are not alone sufficient to establish
entitlement to compensation. Appellant must also establish that his injury arose out of his
employment or that a factor of his employment gave rise to the assault.9
The evidence of record does not establish that appellant’s employment contributed to or
facilitated the October 17, 2016 assault. The increased risk of injury arose from a reported
personal exchange between him and a woman on his delivery route, which was imported into the
workplace.10 Appellant’s injury did not arise from the type of work he was required to perform.
Rather, it was the result of personal animosity that arose out of nonwork-related comments of a
personal and private nature he allegedly made to a woman on his delivery route. The record
contains an October 17, 2016 police report which indicated that the woman told the investigating
officer that a few days earlier appellant commented that “she was pretty and [he] wanted to go
insider her residence with her.” She later informed her boyfriend of the alleged incident, which
ultimately led to her boyfriend assaulting appellant on October 17, 2016. The Board notes that

7

A. Larson, The Law of Workers’ Compensation § 8.00 (2006); see also R.S., 58 ECAB 660 (2007).

8

S.S., Docket No. 13-0318 (issued March 26, 2013).

9

See supra notes 6 and 7.

10

See supra note 8.

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appellant did not provide a statement to OWCP denying that he made the comments reported by
the girlfriend of the assailant.11
The Board has on numerous occasions found that OWCP properly denied coverage for an
assault that arose from animosity which precipitated the assault and was imported into the
employment. For example, in Agnes V. Blackwell, the employee sustained an injury following
an assault by a coworker with whom she had been romantically involved outside of work.12 The
Board denied coverage under FECA, finding that the altercation arose out of a prior personal
relationship between the employee and her coworker. The Board found that the animosity which
precipitated the assault was imported into the employment from the prior private relationship
between the parties and not out of or in the course of their employment. Similarly, in B.T.,
coverage was denied to a claimant because it was determined that the assault she suffered
stemmed from a personal relationship with her ex-boyfriend which was imported into the
workplace.13 In M.B., the claimant was assaulted by her former husband and coverage was
denied despite the fact that he also was a coworker because it was determined that the assault
occurred due to animosity flowing from the private relationship imported into the workplace.14
The Board acknowledges that the instances of personal animosity which were imported
into the workplace in the above-noted cases arose directly between each claimant and her
assailant. While appellant did not have a personal relationship with the assailant, it was his
personal relationship with the assailant’s girlfriend, albeit brief in nature, which created the
animosity which was imported into the employment from his private life and ultimately led to
the October 17, 2016 assault for which coverage was claimed.15 Therefore, appellant did not
establish a traumatic injury in the performance of duty on October 17, 2016, as alleged.
Appellant may submit additional evidence, together with a written request for
reconsideration to OWCP within one year of the Board’s 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 his burden of proof to establish an injury in
the performance of duty on October 17, 2016, as alleged.

11

The October 17, 2016 Sheriff’s incident/investigation report indicated that after the assailant accused appellant
of making “sexual comments to his girlfriend … he told [the assailant] that he did not make any comments to [his
girlfriend].”
12

44 ECAB 200 (1992).

13

Docket No. 15-0786 (issued June 10, 2015).

14

Docket No. 15-0215 (issued April 24, 2015).

15

See supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the December 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2018
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 09-1424
Issued: February 19, 2010

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 May 18, 2009 appellant filed a timely appeal of the September 10, 2008 and May 1,
2009 merit decisions of the Office of Workers’ Compensation Programs, which denied an
additional schedule award. 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 has greater than 50 percent impairment of the left lower
extremity.
FACTUAL HISTORY
On September 18, 1998 appellant, then a 51-year-old letter carrier, injured his left knee
and lower back when he fell while climbing stairs delivering mail. The Office initially accepted

the claim for left knee sprain and lumbar sprain. The claim was later expanded to include torn
left meniscus and the Office authorized surgery, which appellant underwent on March 16, 1999.1
On September 29, 1999 the Office granted a schedule award for nine percent impairment
of the left lower extremity.2 In September 2000 it expanded appellant’s claim to include
traumatic osteoarthritis of the left knee.3 The Office also granted an additional schedule award
on October 31, 2000 for 20 percent impairment of the left lower extremity. Although appellant’s
overall impairment at the time was 29 percent, the Office reduced the October 31, 2000 award to
reflect the previous award of 9 percent.4
In a report dated December 19, 2001, appellant’s treating physician, Dr. Stulberg, found
50 percent impairment due to arthritis. On January 16, 2002 the district medical adviser (DMA)
concurred with Dr. Stulberg’s 50 percent left lower extremity impairment rating.
By decision dated February 6, 2002, the Office awarded appellant an additional 30
percent impairment for the left lower extremity. The award took into account appellant’s
October 31, 2000 award for 20 percent, but it did not account for appellant’s September 29, 1999
award for 9 percent impairment of the left lower extremity. Thus, between September 1999 and
February 2002, the Office granted three schedule awards for a combined 59 percent impairment
of the left lower extremity.
Appellant filed a claim (Form CA-7) for an additional schedule award on
September 24, 2003. In a decision dated December 8, 2003, the Office denied an additional
award because the evidence demonstrated only a 22 percent impairment of the left lower
extremity.5
On June 12, 2007 Dr. Stulberg performed a left knee total arthroplasty, which the Office
authorized. In a report dated December 21, 2007, he stated that he anticipated a full recovery
and that appellant was likely to reach maximum medical improvement 12 months post surgery;
approximately June 2008.
Appellant filed additional claims for a schedule award on June 5 and 12, 2008. In a
report dated June 5, 2008, Dr. Stulberg indicated that appellant had reached maximum medical
improvement. By letter dated June 18, 2008, the Office wrote to Dr. Stulberg requesting that he
1

The arthroscopic surgery was performed by Dr. Bernard N. Stulberg, a Board-certified orthopedic surgeon.

2

The overall rating included components for mild cruciate ligament laxity (seven percent) and appellant’s
March 16, 1999 partial meniscectomy (two percent).
3

In July 2003, the Office further expanded the claim to include aggravation/acceleration of left knee
osteoarthritis.
4

The 29 percent rating included a combination of impairments for appellant’s partial meniscectomy (2 percent)
and arthritis in the knee joint (20 percent) and patellofemoral joint (10 percent).
5

In an October 29, 2003 report, Dr. Stulberg found 20 percent impairment based on arthritis. On November 20,
2003 the DMA found an overall impairment of 22 percent based on left knee arthritis (20 percent) and appellant’s
partial meniscectomy (2 percent).

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provide an impairment rating in accordance with the American Medical Association, Guides to
the Evaluation of Permanent Impairment (5th ed. 2001). Thirty days was allotted for submission
of the requested impairment rating.
The Office did not receive the requested impairment rating. Consequently, by decision
dated September 10, 2008, it denied appellant’s claim for an additional schedule award.
Appellant requested a hearing, which was held on February 17, 2009. His counsel
submitted a September 12, 2008 impairment rating from Dr. Timothy Morley, who found 21
percent impairment of the left lower extremity. Dr. Morley’s rating was based on a combination
of impairments for loss of motion (12 percent) and muscle weakness (12 percent). At the
hearing, counsel acknowledged that the latest impairment rating was considerably less than what
had previously been awarded. He advised the hearing representative that he was attempting to
obtain another report from Dr. Morley. The hearing representative agreed to keep the record
open for 30 days post hearing. She later granted counsel a 45-day extension to submit additional
evidence. However, the Office did not receive any additional evidence within the allotted time
frame.
In a decision dated May 1, 2009, the hearing representative found that appellant was not
entitled to a schedule award in excess of the 50 percent left lower extremity impairment
previously granted. Accordingly, she affirmed the Office’s September 10, 2008 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act 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 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.7 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).8
ANALYSIS
The Act and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member.9 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
6

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation.
§ 8107(c)(2) (2006).
7

20 C.F.R. § 10.404 (2009).

8

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

9

5 U.S.C. § 8108; see 20 C.F.R. § 10.404(c).

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5 U.S.C.

(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.10 Thus far, appellant has
been paid the equivalent of 59 percent impairment of the left lower extremity based on medical
evidence demonstrating a maximum impairment of 50 percent. The latest schedule award in
February 2002 for an additional 30 percent impairment took into account appellant’s October 31,
2000 award of 20 percent. However, appellant’s September 29, 1999 award for 9 percent
impairment of the left lower extremity was apparently overlooked.
Appellant currently seeks an additional schedule award in excess of the previously
accumulated awards totaling 59 percent of the left lower extremity. In January 2002, the DMA
concurred with Dr. Stulberg’s December 19, 2001 arthritis-based impairment of 50 percent. This
medical evidence formed the basis of the Office’s February 6, 2002 award. Since that time
appellant has undergone a left knee total arthroplasty in June 2007. His latest impairment rating
dated September 12, 2008, found only 21 percent impairment of the left lower extremity.
Dr. Morley’s rating was based on a combination of impairments for loss of motion (12 percent)
and muscle weakness (12 percent). At the February 17, 2009 hearing, appellant’s counsel
acknowledged that Dr. Morley’s impairment rating was considerably less than the previous
maximum rating of 50 percent.
The onus is not on the Office to develop appellant’s schedule award claim.11 The Office
wrote to Dr. Stulberg on June 18, 2008 requesting that he provide an impairment rating under the
A.M.A., Guides (5th ed. 2001). Dr. Stulberg did not comply. Appellant instead submitted
Dr. Morely’s September 12, 2008 impairment rating, which found only 21 percent impairment of
the left lower extremity. On its face, this report does not demonstrate a greater impairment than
previously awarded. Appellant’s counsel acknowledged as much. The hearing representative
afforded counsel approximately two and half months to submit additional medical evidence, but
none was received. The Board finds that the medical evidence of record does not demonstrate
left lower extremity impairment in excess of 50 percent. Accordingly, the Office properly
denied appellant’s claim for an additional schedule award.
CONCLUSION
Appellant has not established that he has greater than 50 percent impairment of the left
lower extremity.

10

20 C.F.R. § 10.404(c)(1), (2).

11

An employee seeking benefits under the Act has the burden of proof to establish the essential elements of his
claim. Amelia S. Jefferson, 57 ECAB 183, 187 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the May 1, 2009 and September 10, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 19, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________
Appearances:
Ron Watson, for the appellant
Miriam D. Ozur, Esq., for the Director

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Docket No. 12-408
Issued: October 17, 2012

Case Submitted on the Record

ORDER GRANTING REMAND AND
CANCELLING ORAL ARGUMENT
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On December 19, 2011 appellant, through her representative, filed a timely application
for review of a September 1, 2011 decision of the Office of Workers’ Compensation Programs
(OWCP). By that decision, OWCP found that appellant did not meet her burden of proof to
establish that modification of her loss of wage-earning capacity determination was warranted and
she did not establish a recurrence of disability commencing October 28, 2009 and
October 22, 2010.1 Appellant requested oral argument, which was scheduled to be held before
the Board on October 23, 2012.
The Director of OWCP filed a motion on September 28, 2012, requesting that the Board
set aside OWCP’s September 1, 2011 decision, cancel oral argument and remand the case for
further specified development. In this regard, the Director noted that on August 30, 2004 OWCP
1

OWCP hearing representative found that, as appellant had not established that the loss of wage-earning capacity
determination warranted modification, OWCP correctly denied compensation effective October 28, 2009. However,
the hearing representative pointed out that following a grievance filed by appellant, the employing establishment
returned appellant to work on October 6, 2010 and paid her back wages from October 27, 2009 through her return to
work. Subsequently, following the employing establishment’s determination that no work was available once again
under the National Reassessment Program (NRP) effective October 22, 2010, appellant filed another claim for a
recurrence of disability beginning that date.

determined appellant’s wage-earning capacity based on her actual wages, effective June 7, 2004,
in the limited-duty position of a full-time regular unassigned letter carrier. The Director further
noted that the employing establishment withdrew the limited-duty position under NRP, resulting
in appellant filing a claim for lost wages. The Director acknowledged that, although OWCP
denied appellant’s claim “based on the fact that appellant did not establish one of the three
customary criteria for modifying a formal loss of wage-earning capacity determination,” it did
not follow the guidelines as set forth in FECA Bulletin No. 09-05 regarding situations where a
formal loss of wage-earning capacity determination has been issued and the limited-duty position
is withdrawn pursuant to NRP.2 On remand, the Director stated that, following “proper
compliance” with FECA Bulletin No. 09-05 and any necessary further development, OWCP will
issue an appropriate de novo decision regarding appellant’s entitlement to wage-loss
compensation beginning October 22, 2010.3
On September 28, 2012 the Clerk of the Board served appellant and her representative
with a copy of the Director’s motion to remand and cancel oral argument. In a response dated
and received by the Board on October 11, 2012, appellant’s representative replied that he and
appellant opposed the Director’s motion. Her representative provided three reasons for
appellant’s opposition. First, the evidence of record establishes that the original loss of wageearning capacity determination is erroneous as the position represented “temporary and sheltered
employment.” Second, OWCP has already sent a developmental letter, dated June 18, 2010, to
the employing establishment consistent with the tenets of FECA Bulletin No. 09-05 and thus a
remand to duplicate this process is not warranted. Last, for the sake of judicial economy the oral
argument should proceed as the issue is ripe to adjudicate and saves time and effort from
remanding the case to OWCP to have appellant to appeal again to this Board.
The Board has duly considered the matter and concludes that, as the Director has
acknowledged that OWCP did not apply FECA Bulletin No. 09-05 to appellant’s situation where
a loss of wage-earning capacity is in place and the employing establishment withdraws the lightduty assignment under NRP when denying her claim for wage-loss compensation, and, as on
remand OWCP will properly apply it and issue a de novo decision following any necessary
further development, the motion should be granted. Accordingly,

2

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

See supra note 1.

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IT IS HEREBY ORDERED THAT the motion to remand and cancel oral argument
filed by the Director of the Office of Workers’ Compensation Programs is granted. The decision
of OWCP dated September 1, 2011 is set aside; and the case is remanded for further proceedings
consistent with this order of the Board. Oral argument scheduled for October 23, 2012 is
canceled.
Issued: October 17, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
R.G., Appellant
and
DEPARTMENT OF DEFENSE, SHARPE
ARMY DEPOT, Lathrop, CA, Employer
__________________________________________

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

Docket No. 06-1685
Issued: January 5, 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 July 18, 2006 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ nonmerit decisions dated February 23, 2006 which denied his request for an oral
hearing and June 2, 2006 which denied his request for reconsideration on the grounds that it was
not timely filed and failed to establish clear evidence of error. Because more than one year has
elapsed from the last merit decision dated October 16, 1991 to the filing of this appeal. The
Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUES
The issues are: (1) whether the Branch of Hearings and Review properly denied
appellant’s request for an oral hearing; and (2) whether the Office properly declined to reopen
appellant’s request for reconsideration of the merits under section 8128(a) of the Federal
Employees’ Compensation Act, on the grounds that it was not timely filed and did not establish
clear evidence of error.

FACTUAL HISTORY
Appellant, a 44-year-old wood worker, filed an occupational disease on May 20, 1989
alleging that he developed a high tone sensorineural hearing loss in his left ear due to acoustic
trauma. He first became aware of his condition on April 6, 1989 and first related this condition
to his employment on May 9, 1989. The Board reviewed appellant’s claim in a decision dated
March 12, 2002.1 It found that he had filed an untimely request for reconsideration which did
not establish clear evidence of error in the October 16, 1991 Office decision. The Board noted
that the Office denied appellant’s hearing loss claim on the grounds that the medical evidence
did not establish that his loss of hearing was due to hazardous noise levels at the employing
establishment. The Office based its decision on a June 27, 1990 report from Dr. B. Gilmore
Dowd, a Board-certified otolaryngologist, and a September 18, 1989 report from Dr. Wayne K.
Lowell, a Board-certified otolaryngologist. These physicians noted that appellant awoke with
tinnitus in his left ear in April 1989 and opined that this condition was not due to his
employment.
Appellant submitted an October 11, 1989 report from Dr. Kenneth Mak, a Board-certified
otolaryngologist, a April 10, 1990 report from Dr. Douglas D. Harris, a Board-certified
otolaryngologist, and a September 27, 1993 report from Dr. F. Blair Simmons, a Board-certified
otolaryngologist, in support of his request for reconsideration. These physicians opined that his
unilateral left sided hearing loss was likely due to noise exposure in the performance of his
federal job duties. The Board found that appellant had submitted sufficient medical evidence to
create a conflict of medical opinion evidence regarding the causal relationship between his loss
of hearing and his employment. However, it noted that clear evidence of error was intended to
be a difficult standard which he had not met. The Board affirmed the Office’s April 3, 2000
decision. The facts and circumstances of the case as set out in the Board’s prior decision are
adopted herein by reference.
Following the Board’s March 12, 2002 decision, appellant resubmitted Dr. Harris’
April 10, 1990 report and Dr. Lowell’s September 18, 1989 report. He also submitted a May 9,
1989 note from Dr. Harris not previously included in the record which contained the same
findings and conclusions as the April 10, 1990 report. Specifically, Dr. Harris again stated that
appellant had tinnitus and hearing loss in the left ear with a strong history of noise exposure at
work. He again attributed his condition to acoustic trauma at work.
Appellant also submitted new evidence from Dr. Dowd. In a report dated October 20,
1995, Dr. Dowd noted that he experienced sudden hearing loss and loud tinnitus in his left ear
while talking on the telephone to his mother. He noted: “[Appellant] does have a high
frequency nerve loss which is probably attributed to his work environment when he was
younger.” Dr. Dowd attributed his onset of tinnitus and sudden hearing loss to a vascular event.
On November 6, 1995 he stated that appellant had recovered from his sudden hearing loss in his
left ear and stated: “[A]gain this does raise the question that this change in hearing may be on
the basis of either embolic phenomenon or small vessel disease in the central nervous system.”
Dr. Dowd examined him on February 12, 1996 and stated that appellant had developed loud
1

Docket No. 00-2218 (issued March 12, 2002).

2

tinnitus in his right ear. This symptom resolved and Dr. Dowd noted that he might have central
nervous system pathology or multiple sclerosis. He recommended neurological evaluation.
In a report dated October 11, 1999, Dr. Mak noted that appellant’s most recent audiogram
was similar to that from 1989 with normal hearing in the right ear and moderate to profound high
frequency sensory neural hearing loss and tinnitus in the left ear with no vertigo. He described
his employment activities, including exposure to loud saws and loud explosive type noises
associated with the saws. Dr. Mak stated: “In my opinion, [appellant] has suffered some
sensory neural hearing loss due to the chronic exposure to his loud noise environment….”
Appellant requested an oral hearing on December 30, 2005. By decision dated
February 23, 2006, the Branch of Hearings and Review denied his request for an oral hearing and
stated that his claim could equally well be addressed by requesting reconsideration.
Appellant requested reconsideration on April 23, 2006. By decision dated June 2, 2006,
the Office denied appellant’s request for reconsideration on the grounds that the request was not
timely filed and did not contain clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
The statutory right to a hearing under section 8124(b)(1)2 follows an initial final decision
of the Office.3 Section 8124 of the Act sets forth the claimant’s jurisdiction of the Office’s
Branch of Hearings and Review in holding hearings under the Act. This section states:
“(a) The Secretary of Labor shall determine and make a finding of facts and make
an award for or against the payment of compensation under this subchapter….
“(b)(1) Before review under section 8128(a) of this title, a claimant for
compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of issuance
of the decision, to a hearing on his claim before a representative of the
Secretary….”4
The Act provides the Office with original jurisdiction in the processing of compensation
claims and section 8124(a) provides the Office with the duty and authority to issue an initial
decision on an employee’s claim for compensation. Once an initial decision is made in a
compensation case, the claimant’s rights arise by which the claimant may seek further review of
his claim: the right to a hearing before the Office, the right to reconsideration before the Office
or an appeal to the Board. The Board has clarified that the Office does not have the discretionary
authority to grant a request for hearing immediately following a Board decision. The Branch of
Hearings and Review may not assume jurisdiction in the claims process absent a final adverse
decision by the Director. Following the Board’s review of an Office decision, there is no final
2

5 U.S.C. §§ 8101-8193, 8124(b)(1).

3

5 U.S.C. § 8124(a)(1).

4

5 U.S.C. § 8124.

3

decision of the Office left unreviewed over which the Office’s Branch of Hearings and Review
can assume jurisdiction to exercise its discretionary appellate authority.5
ANALYSIS -- ISSUE 1
The Board issued its final decision on this claim on March 12, 2002. Following this
decision of the Board, there was no final decision of the Office left unreviewed over which the
Office’s Branch of Hearings and Review could assume jurisdiction to exercise its discretionary
appellate authority. The Office, therefore, properly denied appellant’s request for a hearing on
February 23, 2006.
LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.6 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.7
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes “clear evidence of error.”8 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation sets
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.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.10 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
5

Robert N. Thomas, 51 ECAB 180, 180-81 (1999).

6

20 C.F.R. § 10.607(a).

7

5 U.S.C. §§ 8101-8193, § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

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

9

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3d (January 2004). Office procedure further provides, “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 a error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.” Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3c (January 2004).
10

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

11

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

4

clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 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.14 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 decision.15
ANALYSIS -- ISSUE 2
In its June 2, 2006 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on April 23,
2006 more than one year after the Office’s merit decision of October 16, 1991. Therefore, he
must demonstrate clear evidence of error on the part of the Office in issuing this decision.
In support of his request for reconsideration, appellant resubmitted evidence which was
already considered by the Board in its March 12, 2002 decision. The Board already considered
Dr. Harris’ April 10, 1990 report and Dr. Lowell’s September 18, 1989 report and determined
that these reports were not sufficient to establish clear evidence of error on the part of the Office.
It is not necessary for the Board to reconsider this evidence on this second appeal.16 The May 9,
1989 report from Dr. Harris contains similar findings and conclusions to the April 10, 1990
report. The Board finds that this report does not establish clear evidence of error on the part of
the Office. While this note might be sufficient to create a conflict with the reports of Dr. Dowd
and Dr. Lowell, a conflict of medical opinion evidence is not sufficient to reach the high standard
of clear evidence of error.17 The Board further notes that the October 11, 1999 report from
Dr. Mak is a restatement of his previous conclusions that appellant had an employment-related
hearing loss. As with Dr. Harris’ May 9, 1989 report, this report does not raise a substantial
question as to the correctness of the Office’s decision.18
Appellant alleged that the statement by Dr. Dowd in his October 20, 1995 report that he
did have a high frequency nerve loss which was probably attributable to his work environment
when he was younger was sufficient to establish clear evidence of error on the part of the Office
in denying his claim. The Board finds that this statement does not raise a substantial question
concerning the correctness of the Office’s decision as Dr. Dowd’s opinion is couched in
12

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

13

See Leona N. Travis, supra note 11.

14

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

15

Leon D. Faidley, Jr., supra note 7

16

20 C.F.R. § 501.6(d).

17

Leon D. Faidley, Jr., supra note 7.

18

Id.

5

speculative terms and does not discuss any history of noise exposure which he felt caused or
contributed to appellant’s claim.19 The report also fails to adequately distinguish between
appellant’s sudden onsets of hearing loss and tinnitus in April 1989 and 1995 and the
employment-related hearing loss. As appellant did not submit clear and convincing evidence of
error on the part of the Office in denying his claim for employment-related hearing loss.
Therefore, he failed to establish clear evidence of error and the Office properly declined to
reopen his claim for consideration of the merits.
CONCLUSION
The Board finds that appellant did not submit clear evidence of error of the part of the
Office and the Office was not required to reopen his claim for merit review.
ORDER
IT IS HEREBY ORDERED THAT the June 2 and February 23, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 5, 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

19

Kathy A. Kelly, 55 ECAB 206, 211-12 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD FLEET FORCES
COMMAND, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0975
Issued: August 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 3, 2017 appellant, through counsel, filed a timely appeal from a March 10, 2017
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 OWCP properly denied appellant’s hearing loss claim because it
was untimely filed pursuant to 5 U.S.C. § 8122.
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 1, 2017 appellant, then a 63-year-old retired rigger leader, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a
result of employment-related noise exposure. He first became aware of his condition and of its
relationship to his federal employment on August 10, 2008. Appellant explained that he delayed
filing the Form CA-2 for more than 30 days after August 10, 2008 because it only recently came
to his attention that he could file a claim. On the reverse side of the form, appellant’s supervisor
reported that appellant had retired on December 2, 2011, that appellant had not reported his
condition until February 1, 2017, and that the claim was untimely filed.
By letter dated February 1, 2017, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding whether he continued to be exposed to hazardous noise at work and, if not,
his date of last exposure. OWCP noted that it did not appear the claim had been filed in a timely
manner and requested evidence to establish that his claim was filed within three years of the date
he became aware of a relationship between his condition and his employment. It also requested
that the employing establishment provide noise survey reports for each site where appellant
worked, the sources and period of noise exposure for each location, and copies of all medical
examinations pertaining to hearing or ear problems. Both appellant and the employing
establishment were afforded 30 days in which to respond.
On February 8, 2017 appellant responded to OWCP’s questionnaire explaining that he
worked for the employing establishment from 1979 to December 2011 in various positions as a
rigger. In all of these positions, he was exposed to hazardous noise from various pneumatic
tools, grinding, needle guns, chipping hammers, chain falls, diesel engines, valves, generators,
pumps, and shipboard alarms for six to eight hours per day. Appellant noted that earplugs were
provided. His hobbies included auto repair for three to five hours per week over the past five
years for which he used hearing protection. Appellant further reported that he was last exposed
to work-related hazardous noise in December 2011 and had no prior hearing problems. He stated
that he first noticed his hearing loss in 2008 when he related it to his employment because it
could not have been caused by anything other than work.
Appellant submitted employing establishment audiograms performed as part of a hearing
conservation program dated November 7, 2003 through November 30, 2011. The audiograms
referenced his October 6, 1991 baseline audiogram which revealed the following decibel (dB)
losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 15, 5, 5, and 15 for the right ear and 25, 25,
15, and 15 for the left ear. The baseline audiogram indicated normal hearing and showed
nonratable loss in both ears. The most recent November 30, 2011 audiogram revealed the
following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 20, 15, 10, and 20 for the right ear and
40, 35, 30, and 20 for the left ear.
No further response was received from the employing establishment.
By letter dated February 13, 2017, counsel for appellant argued that appellant’s narrative
statement and audiograms from his employment at the employing establishment documented the
existence of a hearing conservation program and showed that the employing establishment had
actual knowledge of a work-related hearing loss.
2

By decision dated March 10, 2017, OWCP denied appellant’s claim as it was untimely
filed. It found that the evidence did not establish that the claim had been filed within three years
of the August 10, 2008 injury date or that his immediate supervisor had actual knowledge of his
injury within 30 days of the injury date.
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.3 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death.4 Section 8122(b)
provides that, in latent disability cases, the time limitation 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.5 The Board has
held that, if an employee continues to be exposed to injurious working conditions after such
awareness, the time limitation begins to run on the last date of this exposure.6
Even if a claim is not filed within the three-year period of limitation, it would still be
regarded as timely under section 8122(a)(1) if the immediate superior had actual knowledge of
his or her alleged employment-related injury within 30 days or written notice of the injury was
provided within 30 days pursuant to section 8119.7 The knowledge must be such as to put the
immediate superior reasonably on notice of an on-the-job injury or death.8 The Board has
indicated that an employee need only be aware of a possible relationship between his or her
condition and his or her employment to commence the running of the applicable statute of
limitations.9
In interpreting section 8122(a)(1) of FECA, OWCP procedures provide that, if the
employing establishment provides regular physical examinations which might have detected
signs of illness, such as hearing tests, it should be asked whether the results of such tests were
positive for illness and whether the employee was notified of the results.10 The Board has held
that a program of periodic audiometric examinations conducted by an employing establishment
in conjunction with an employee testing program for hazardous noise exposure is sufficient to
constructively establish actual knowledge of a hearing loss, such as to put the immediate
3

C.D., 58 ECAB 146 (2006); David R. Morey, 55 ECAB 642 (2004); Mitchell Murray, 53 ECAB 601 (2002).

4

W.L., 59 ECAB 362 (2008); Gerald A. Preston, 57 ECAB 270 (2005); Laura L. Harrison, 52 ECAB
515 (2001).
5

Id. at § 8122(b).

6

See Linda J. Reeves, 48 ECAB 373 (1997).

7

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

8

Willis E. Bailey, 49 ECAB 511 (1998); B.H., Docket No. 15-0970 (issued August 17, 2015).

9

Edward C. Hornor, 43 ECAB 834, 840 (1992).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); L.C., 57 ECAB
740 (2006); Ralph L. Dill, 57 ECAB 248 (2005).

3

supervisor on notice of an on-the-job-injury.11 A hearing loss identified on such a test would
constitute actual knowledge on the part of the employing establishment of a possible work
injury.12
ANALYSIS
Appellant stated on his claim form that he was aware of a relationship between the
claimed condition and his federal employment as of August 10, 2008. Under section 8122(b),
the time limitation begins to run when appellant became aware of causal relationship, or, if he
continued to be exposed to noise after awareness, the date he is no longer exposed to noise.
Appellant retired from federal employment on December 2, 2011. Therefore, the three-year time
limitation began to run on December 2, 2011. As appellant did not file his occupational disease
claim until February 1, 2017, the Board finds that it was not filed within the three-year time
period under section 8122(b).13
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate supervisor had actual knowledge of the injury within 30 days of his last exposure
to hazardous noise in federal employment, i.e., within 30 days of his last exposure no later than
December 2, 2011.14 The Board finds that the employing establishment conducted a program of
audiometric testing for which appellant submitted a series of audiograms obtained prior to his
retirement.15 These audiograms obtained as part of a hearing conservation program, are
sufficient to establish actual knowledge of the claimed hearing loss within 30 days of his last
noise exposure which occurred no later than December 2, 2011.16 Of note, an October 6, 1991
baseline audiogram revealing the following dB losses at 500, 1,000, 2,000, and 3,000 Hz: 15, 5,
5, and 15 for the right ear and 25, 25, 15, and 15 for the left ear. In addition, the most recent
November 30, 2011 audiometric test revealed the following dB losses at 500, 1,000, 2,000, and
3,000 Hz: 20, 15, 10, and 20 for the right ear and 40, 35, 30, and 20 for the left ear.
The audiograms from the hearing conservation program showed a progression in
appellant’s left-sided hearing loss from a nonratable loss on October 6, 1991 to a ratable loss as
of November 30, 2011.17 As such, the Board finds that the hearing conservation audiograms
from October 6, 1991 through November 30, 2011 demonstrate a progressive worsening of

11

L.B., Docket No. 12-1548 (issued January 10, 2013); James W. Beavers, 57 ECAB 254 (2005).

12

See 5 U.S.C. § 8122(a)(1); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.801.3; G.C., Docket
No. 12-1783 (issued January 29, 2013); Ralph L. Dill, supra note 10.
13

G.C., id.

14

Supra note 7.

15

Supra note 13.

16

Id.

17

Under FECA, hearing loss impairments are determined by the average of the hearing levels at 500, 1,000,
2,000, and 3,000 cycles per second. See American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009) at section 11.2d, page 250. If the average is less than 25, the hearing
impairment is not ratable.

4

appellant’s hearing loss. This ratable hearing loss18 constitutes actual knowledge by the
employing establishment of a possible work-related hearing loss within 30 days of his last noise
exposure which occurred no later than December 2, 2011.19 Therefore, appellant’s hearing loss
claim is considered timely.20
The case must, therefore, be remanded for OWCP to address the merits of the claim.
After any further development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that appellant’s claim for hearing loss was timely filed. The employing
establishment had actual knowledge of a possible work-related hearing loss within 30 days of
December 2, 2011, the date appellant was last exposed to hazardous noise at work.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
development consistent with this decision.
Issued: August 9, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See A.M.A., Guides 250-51.

19

L.E., Docket No. 14-1551 (issued October 28, 2014).

20

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF JUSTICE, OFFICE OF
INSPECTOR GENERAL, Dallas, TX, Employer
__________________________________________

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

Docket No. 09-2146
Issued: April 19, 2010

Case Submitted on the Record

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

JURISDICTION
On August 25, 2009 appellant filed a timely appeal of the February 23, 2009 merit
decision of the Office of Workers’ Compensation Programs finding that she did not sustain an
emotional condition in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
On appeal, appellant contends that her psychiatric medical evaluation was not considered
by the Office.
FACTUAL HISTORY
On November 10, 2008 appellant, then a 52-year-old auditor, filed an occupational
disease claim alleging that on July 9, 2007 she first became aware of her hypertension, stress,
anxiety and insomnia and realized that these conditions were caused by her federal employment.
She alleged that, after making disclosures to her managers about the detrimental results of their

actions on productivity, they retaliated against her and subjected her to a hostile work
environment. The employing establishment denied appellant’s allegations.
By letter dated December 12, 2008, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It requested a chronological account of all the
actions that she considered responsible for her condition, specifically identifying persons, dates,
locations, practices and incidents. The Office also requested a rationalized medical report from
an attending physician, which described appellant’s symptoms, results of examination and tests,
diagnosis, treatment provided, the effect of treatment and opinion with medical reasons regarding
the cause of her emotional condition. It further requested that the employing establishment
respond to appellant’s allegations. Appellant was allowed 30 days to submit such evidence. She
did not respond.
In an October 20, 2008 disability certificate, Dr. Kathryn M. Simon, an attending Boardcertified family practitioner, advised that appellant could return to work on October 27, 2008.
By decision dated February 23, 2009, the Office denied appellant’s claim, finding that
she did not sustain an emotional condition in the performance of duty. Appellant failed to
submit sufficient evidence to establish that the claimed events occurred as alleged or that she
sustained a medical condition causally related to the claimed events.1
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.2 To establish that she sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that she has an emotional or psychiatric disorder;
and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.5
There are situations where an injury or an illness has some connection with the employment but
1

On appeal, appellant submitted new evidence. However, the Board cannot consider evidence that was not
before the Office at the time of the final decision. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB ___ (Docket No. 071898, issued January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A.
Kayes, 54 ECAB 373 (2003). Appellant may resubmit this evidence and legal contentions to the Office
accompanied by a request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

Pamela R. Rice, 38 ECAB 838 (1987).

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

2

nevertheless does not come within the concept or coverage under the Act.6 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her 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 her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.7
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. 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.9
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction-in-force or her frustration from not being
permitted to work in a particular environment or to hold a particular position.10 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.11
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.12
ANALYSIS
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty. The Office’s December 12, 2008 developmental letter
specifically requested that she submit a chronological account of all the incidents that she
considered responsible for her condition, specifically identifying persons, dates, locations,
practices and incidents. Appellant did not submit such evidence. The Board finds, therefore,
6

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

7

Lillian Cutler, supra note 4.

8

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

9

Id.

10

Lillian Cutler, supra note 4.

11

Michael L. Malone, 46 ECAB 957 (1995).

12

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

3

that she failed to establish a factual basis for her allegations or any compensable factor of
employment. Appellant failed to meet her burden of proof.
Regarding appellant’s contention on appeal, that her psychiatric medical evaluation was
not considered by the Office, the Board finds that it was not necessary for the Office to address
the medical evidence of record since she failed to establish a compensable employment factor.13
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2010
Washington, DC

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

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

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

13

Marlon Vera, 54 ECAB 834 (2003).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Los Fresnos, TX, Employer
__________________________________________

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

Docket No. 14-2
Issued: June 4, 2014

Case Submitted on the Record

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

JURISDICTION
On October 1, 2013 appellant filed a timely appeal from a September 9, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
January 21, 2013 causally related to an accepted lumbar sprain.
On appeal, appellant asserts that OWCP wrongly found that reaching into his sock drawer
on January 21, 2013 broke the chain of causation from his August 2002 injury. He explains that
he did not seek medical care from 2003 until January 2013 as he was trying to save the
government money.
1

5 U.S.C. §§ 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 9, 2002 appellant, then a 32-year-old automotive
mechanic, sustained a lumbar sprain when he pulled a jack from beneath a vehicle. Dr. Timothy
Bothwell, an attending Board-certified family practitioner, diagnosed a back strain and held
appellant off work. In a December 20, 2002 report, he noted permanent restrictions allowing
only minimal stooping and bending. Appellant received compensation on the daily rolls for
work absences. He returned to light duty in late 2002. On March 5, 2006 appellant’s position
was reclassified to mission support assistant reducing his salary. The reassignment was made
specifically to accommodate his disability.2
On January 30, 2013 appellant filed a recurrence of disability claim (Form CA-2a)
asserting that he experienced a flare-up of lumbar symptoms on January 21, 2013 after reaching
into his sock drawer at home. He stated that when he reached “out to retrieve a pair of socks my
back popped and the pain came to my mid to lower back.” Appellant did not stop work. He
remained in the light-duty position he had performed since March 2006. Appellant submitted
February 1, 2013 form reports from Dr. Bothwell diagnosing a lumbar strain and finding him
able to perform his light-duty position.
In a February 22, 2013 letter, OWCP advised appellant of the additional evidence needed
to establish his claim for recurrence of disability, including a narrative report from his physician
explaining how and why the accepted August 9, 2002 lumbar sprain would continue to require
medical treatment as of January 21, 2013. It afforded him 30 days to submit such evidence.
In response, appellant submitted a March 1, 2013 statement explaining that he sought
medical treatment when over-the-counter medication was ineffective. He provided February 14
and 28, 2013 form reports from Dr. Bothwell, diagnosing a back strain and finding him able to
perform his full-time light-duty position.
By decision dated April 1, 2013, OWCP denied appellant’s claim for recurrence of
disability on the grounds that causal relationship was not established. It found that
Dr. Bothwell’s reports did not establish that the accepted lumbar sprain spontaneously worsened
as of January 21, 2013 without an intervening cause. OWCP further found that appellant
attributed the worsening of his symptoms to a January 21, 2013 nonoccupational incident, thus
breaking the chain of causation from the accepted injury.
In a July 1, 2013 letter, appellant requested reconsideration.
He submitted a
June 24, 2013 statement explaining that, as his case had been closed due to inactivity, OWCP
had advised him to file a claim for recurrence of disability. Appellant also provided a
May 2, 2013 narrative report from Dr. Bothwell, noting that he did not examine appellant from
December 20, 2002 to February 1, 2013. He noted that he experienced increased lumbar pain
“after reaching into a drawer and felt a ‘pop’ in his lower back.” Dr. Bothwell diagnosed an
aggravation of the “previous lower back sprain.” He opined that based on appellant’s “age and
weight of 340 [pounds] it would not be beyond medical probability that he has aggravated his
preexisting degenerative spine condition.”
2

There is no evidence of record that OWCP performed a wage-earning capacity determination.

2

By decision dated September 9, 2013, OWCP denied modification, finding that the new
evidence submitted was insufficient to establish causal relationship. It noted that Dr. Bothwell
did not treat appellant from December 20, 2002 until February 1, 2013, when appellant presented
with the history of injuring his back at home while pulling open a drawer. OWCP also found
that he attributed appellant’s symptoms to obesity and progression of preexisting degenerative
disc disease, a condition not accepted by OWCP.
LEGAL PRECEDENT
OWCP’s implementing regulations define a “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.3 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury is
withdrawn or when the physical requirements of such an assignment are altered such that they
exceed the employee’s physical limitations.4
When an appellant claims a recurrence of disability due to an accepted employment-related
injury, he or she has the burden of establishing by the weight of reliable, probative and substantial
evidence that the recurrence of disability is causally related to the original injury. This burden
includes the necessity of furnishing evidence from a qualified physician, who on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally related
to the employment injury. Moreover, sound medical reasoning must support the physician’s
conclusion.5 An award of compensation may not be based on surmise, conjecture or speculation or
on appellant’s unsupported belief of causal relation.6
ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain on August 9, 2002. Appellant
returned to full-time light duty in late 2002 and remained in this position through January 2013.
In his January 30, 2013 claim for recurrence of disability, he attributed his increased lumbar pain
to reaching into a sock drawer at home on January 21, 2013. Appellant thus has the burden of
providing sufficient evidence, including rationalized medical evidence, to establish the causal
relationship asserted.7

3

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
4

J.F., 58 ECAB 124 (2006).

5

Ricky S. Storms, 52 ECAB 349 (2001).

6

Alfredo Rodriguez, 47 ECAB 437 (1996).

7

Ricky S. Storms, supra note 5.

3

The Board finds, however, that appellant identified an intervening cause, negating the
claimed causal relationship between the August 9, 2002 lumbar sprain and his ongoing
condition. Appellant attributed his condition to opening a sock drawer at home on
January 21, 2013. This nonoccupational event broke the chain of causation between the
August 9, 2002 injury and his lumbar condition.8 The claimed recurrence of disability therefore
cannot be deemed to have arisen out of appellant’s federal employment.
The Board notes that OWCP also denied appellant’s claim because the medical evidence
did not support that the August 9, 2002 lumbar sprain affected his back condition as of
January 21, 2013. In February 2013 form reports, Dr. Bothwell, an attending Board-certified
family practitioner, diagnosed a back strain but did not specify a cause. In a May 2, 2013
narrative report, he noted that appellant experienced increased lumbar pain after reaching into the
sock drawer. Dr. Bothwell opined that, due to appellant’s age and weight, he sustained an
aggravation of preexisting degenerative spine disease. OWCP did not accept degenerative spinal
disease as an occupational condition in this case. Therefore, Dr. Bothwell attributed appellant’s
lumbar condition as of January 21, 2013 to the intervening cause of reaching into the sock
drawer and to idiopathic degenerative disc disease. His opinion negates a causal relationship
between the August 9, 2002 lumbar sprain and appellant’s condition as of January 21, 2013.
Therefore, OWCP’s September 9, 2013 decision denying the claimed recurrence of disability is
proper under the law and facts of the case.
On appeal, appellant asserts that OWCP wrongly found that reaching into his sock drawer
in January 2013 constituted an intervening cause because he experienced chronic lumbar pain
since the August 2002 injury. He explains that he did not seek medical care from 2003 until
January 2013 as he was trying to save the government money. As stated above, appellant and
Dr. Bothwell attributed appellant’s symptoms to reaching into his sock drawer. This intervening
cause severed the chain of causation from the accepted injury.
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 established that he sustained a recurrence of
disability commencing January 21, 2013 as the evidence demonstrates an intervening incident,
breaking the legal chain of causation from the August 9, 2002 injury.

8

See Carlos A. Marrero, 50 ECAB 117 (1998) (the Board found that the claimant’s use of an exercise machine
constituted an intervening cause of his disability and thus OWCP properly denied his claim for recurrence of
disability); Clement Jay After Buffalo, 45 ECAB 707 (1994) (the Board found that the claimant’s knee injury
sustained while playing basketball broke the legal chain of causation from an accepted knee injury sustained in the
performance of his duties as a firefighter).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 9, 2013 is affirmed.9
Issued: June 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a member
of the Board after May 16, 2014.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 10-2095
Issued: June 6, 2011

Case Submitted on the Record

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

JURISDICTION
On August 13, 2010 appellant timely appealed the February 18, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which awarded compensation for
facial disfigurement. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 is entitled to more than $150.00 for permanent facial
disfigurement.
FACTUAL HISTORY
Appellant, a 59-year-old retired letter carrier, has an accepted occupational disease claim
for left cheek melanoma, which arose on or about July 11, 1999.2 He underwent two OWCP1
2

5 U.S.C. §§ 8101-8193.

Appellant attributed his skin cancer to exposure to ultraviolet rays while delivering mail. He retired effective
May 1, 2009.

approved surgical procedures, the latest of which involved a skin graft performed on
April 17, 2006.
On December 22, 2009 appellant filed a claim for a schedule award (Form CA-7). By
letter dated December 24, 2009, OWCP advised appellant that FECA provided up to $3,500.00
for serious disfigurement of the face, head or neck. The procedures for submitting an application
for a disfigurement award were outlined, including the need for photographs and an attending
physician’s report.
Appellant subsequently submitted four photographs of his face taken January 8, 2010,
and a December 30, 2009 report from Dr. Christopher W. Kling, a Board-certified dermatologist,
who indicated that further significant improvement of appellant’s disfigurement was not
probable. Dr. Kling also advised that no additional therapy, medical or surgical treatment would
correct or improve the disfigurement. He described it as a 5mm x 2.5mm scarred plaque on the
left cheek with permanent redness and blotchy linear discoloration. Dr. Kling also reported
numbness of the left lateral cheek, mild swelling of the cheek and mild weakness of appellant’s
left facial muscles.
The district medical adviser, Dr. David D. Zimmerman, reviewed the claim on
February 10, 2010. He noted that, while Dr. Kling described a 5mm x 2.5mm scarred plaque on
the left cheek, appellant’s January 8, 2010 photographs showed no plaque. The district medical
adviser further noted that the scar was barely noticeable and the redness was minimal. He also
noted no indication of a facial palsy in the area of the scarring. As to the reported numbness, the
district medical adviser stated that it would have no bearing on a disfigurement claim. He
concluded that appellant’s degree of disfigurement was “very mild” and would have “no impact”
on his employability. The district medical adviser recommended a disfigurement award of
approximately $100.00 to $150.00.
On February 17, 2010 the district director reviewed the district medical adviser’s report
and concurred with his rationale. The district director approved an award of $150.00.
By decision dated February 18, 2010, the Office awarded appellant $150.00 for
disfigurement.
LEGAL PRECEDENT
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.3 FECA’s list of scheduled members
includes the eye, arm, hand, fingers, leg, foot and toes.4 Additionally, FECA specifically
provides for compensation for loss of hearing and loss of vision.5 By authority granted under
FECA, the Secretary of Labor added the breast, kidney, larynx, lung, penis, testicle, ovary, uterus

3

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

4

5 U.S.C. § 8107(c).

5

Id.

2

and tongue to the list of scheduled members.6 Neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or the body as a whole.7
FECA also provides that “[f]or serious disfigurement of the face, head or neck of a
character likely to handicap an individual in securing or maintaining employment, proper and
equitable compensation not to exceed $3,500.00 shall be awarded in addition to any other
compensation payable under this schedule.”8 OWCP’s procedures require that its medical
adviser review such claims and evaluate the employee’s disfigurement.9 The medical adviser
will determine if maximum medical improvement has been reached and review photographs
submitted along with medical evidence of record.10 The concurrence of the district director or
the assistant district director must be obtained.11
In reviewing a claim for facial disfigurement, the question before the Board is whether
OWCP’s decision to either grant or deny an award was based upon sound and considered
judgment, and if it was proper and equitable under the circumstances.12 As the only limitation on
OWCP’s authority is reasonableness, abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions that are contrary to both
logic and probable deduction from established facts.13 The Board will not interfere with or set
aside a disfigurement determination by OWCP unless it is clearly erroneous.14
ANALYSIS
The Office awarded appellant $150.00 for permanent disfigurement. The Board finds
that the Office followed its procedures and properly exercised its discretion in determining that
appellant was entitled to $150.00 for facial disfigurement.
Dr. Zimmerman, the district medical adviser, reviewed the case file, including
Dr. Kling’s December 30, 2009 report and photographs of appellant’s face obtained on
January 8, 2010. The district medical adviser found that the 5mm x 2.5mm left cheek “scarred
plaque” Dr. Kling described was not evident on appellant’s January 8, 2010 photographs. He
specifically noted that the photographs “show no plaque.” Whereas Dr. Kling reported
permanent redness and blotchy linear discoloration, the district medical adviser indicated that
appellant’s scar was barely noticeable and the redness was minimal. He also found no indication
6

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(a) (2010).

7

Id. at § 8107(c); id. at § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

8

Id. at § 8107(c)(21).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010).

10

Id.

11

Id.

12

W.C., supra note 3; Hylan Shelton, 57 ECAB 617, 620 (2006).

13

W.C., supra note 3.

14

Id.

3

of a facial palsy. Consequently, the district medical adviser determined that the degree of
disfigurement was “very mild,” and he indicated it would have no impact on appellant’s
employability. Based on his review of the relevant and pertinent evidence, the district medical
adviser recommended a disfigurement award of approximately $100.00 to $150.00. Upon
further review, the district director concurred with the district medical adviser’s rationale and
approved an award of $150.00.
The Board finds that OWCP followed proper procedures and did not abuse its discretion
in awarding $150.00 for permanent disfigurement. Although appellant believes $150.00 is
insufficient compensation for an employment injury that necessitated two surgeries, he has not
demonstrated any permanent impairment of a scheduled member and has not established
entitlement to a greater award for permanent disfigurement.
CONCLUSION
The Board finds that appellant has not established entitlement to more than $150.00 for
permanent disfigurement.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4