United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shawnee Mission, KS, Employer
__________________________________________

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

Docket No. 09-1350
Issued: March 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 30, 2009 appellant, through counsel, filed a timely appeal from September 10,
2008 and April 3, 2009 merit decisions of the Office of Workers’ Compensation Programs
denying modification of a September 20, 2005 loss of wage-earning capacity determination.
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 met his burden of proof to establish that a modification of
his September 20, 2005 loss of wage-earning capacity determination is warranted.
FACTUAL HISTORY
On September 9, 2002 appellant, then a 46-year-old rural carrier, filed a traumatic injury
claim alleging that on that date he injured his right shoulder in the performance of his duties.
The Office accepted the claim for a right shoulder strain, right upper arm sprain and disorder of

the right shoulder bursae and tendons. It also accepted a November 1, 2002 recurrence of
disability claim.1
On April 26, 2004 appellant accepted a position as a modified full-time distribution clerk
with restrictions. The position required no repetitive lifting to the chest with the right arm; less
than 5 to 10 minutes of repetitive right arm use without a rest interval; no lifting more than 35
pounds to the waist; no lifting more than 20 pounds to the chest; no reaching above the shoulder
more than 5 minutes without a break and no pushing/pulling more than 50 pounds.2
By decision dated September 20, 2005, the Office determined that appellant’s actual
earnings as a modified full-time distribution clerk effective May 15, 2004 fairly and reasonably
represented his wage-earning capacity and established that he had no loss of wage-earning
capacity.3 Appellant’s wage-loss benefits were reduced to zero.
On May 13, 2008 the employing establishment offered appellant a modified position as a
mail processing clerk at the Oxford Carrier Annex which appellant accepted under “protest” on
May 29, 2008. The duties of the position included lifting up to 30 pounds, carrying up to 25
pounds and up to 50 pounds of pushing/pulling. The work hours were during the day, but start
and stop time varied during the week.
On July 9, 2008 the Office received appellant’s May 6, 2008 claim for a recurrence of
disability for medical treatment only in which he claimed that his condition had progressively
worsened since 2004.
On July 15, 2008 appellant accepted the employing establishment’s July 11, 2008
modified job offer as a clerk at the Shawnee Mission Station. The physical requirements of the
position included 3.5 hours of driving, up to 8 hours of intermittent walking, up to 5 hours of
intermittent sitting and up to 8 hours of pushing/pulling/bending/stooping/lifting up to 50 pounds
with work hours listed as 3:00 p.m. to 11:50 p.m.
In a July 16, 2008 letter, the Office advised of the three grounds to warrant modification
of a formal loss of wage-earning capacity decision: (1) the original rating was in error; (2) the
claimant was self-rehabilitated; or (3) the claimant’s employment-related medical condition had
worsened. It further advised that, if he was claiming his employment-related medical condition
had worsened, he needed to submit objective physical findings and medical reasoning from his
physician demonstrating a material worsening of his accepted conditions. Appellant was
afforded 30 days to submit additional evidence in support of his claim.

1

By decision dated July 13, 2004, the Office issued a schedule award for 12 percent right upper extremity
impairment.
2

The employing establishment noted that the salary was $40,556.00 annually, but in a letter dated May 4, 2005
informed appellant that the annual salary of the offered position was actually $38,069.00 and not $40,556.00 as
noted in the job offer.
3

This was based on an annual salary of $38,069.00.

2

In a July 18, 2008 report, Dr. Ann Y. Lee, a Board-certified physiatrist, indicated that
appellant was capable of working with restrictions. Appellant reported that his right shoulder
condition was worsening and that his pain was becoming sharper. On physical examination,
Dr. Lee found mildly limited right shoulder forward flexion and adduction, but that it was within
functional active range limits. She reported right shoulder tenderness on palpitation and a mildly
positive clunk sign. Dr. Lee stated that appellant was to continue with his current work
restrictions, but added a repetitive right upper extremity restriction. This restriction limited
repetitive right upper extremity motion to 15 minutes followed by resting for 45 minutes.
On July 25, 2008 appellant accepted the July 16, 2008 job offer, but with modifications to
his physical restrictions. The employing establishment modified the physical restrictions of
lifting, carrying and bending/twisting from up to 50 pounds to lifting up to 30 pounds and
bending/twisting/carrying up to 25 pounds.
Dr. Lee, in a July 25, 2008 report, diagnosed right shoulder pain and noted work
restrictions including decreasing right upper extremity repetitive motion to 50 minutes with 45minute breaks. Appellant related that he was being made to work beyond his work restrictions.
In an August 22, 2008 report, Dr. Lee diagnosed right shoulder pain. She noted that
appellant had not worked since July 31, 2008 due to the employing establishment’s inability to
accommodate his physician’s restrictions.
By decision dated September 10, 2008, the Office denied appellant’s request for
modification of the September 20, 2005 loss of wage-earning capacity determination.
Subsequent to the Office’s decision, it received medical records dated August 28 and
September 15, 2008 from Dr. Lee and physical therapy reports. Dr. Lee diagnosed right
shoulder pain.
In a September 17, 2008 letter, appellant’s counsel requested a telephonic hearing before
an Office hearing representative, which was held on January 15, 2009. At the hearing, appellant
addressed his physical restrictions and the job offers provided in 2008. He stopped work on
July 31, 2008 and returned to work on November 21, 2008.
On February 10, 2009 the employing establishment submitted comments. It noted that
appellant stopped work on July 31, 2008, worked a few intermittent days in September 2008,
returned to work on November 18, 2008 and stopped work again on December 8, 2008.
By decision dated April 3, 2009, the Office hearing representative found that the
evidence did not establish that the original loss of wage-earning capacity decision was erroneous,
that appellant’s medical condition had not materially changed or that appellant had been
vocationally rehabilitated. She affirmed the September 10, 2008 decision denying modification
of the September 20, 2005 loss of wage-earning capacity decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
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wages.4 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 The Office’s procedure manual provides that, if a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss.6 In this instance
the claims examiner will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.8 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.9
ANALYSIS
The Office accepted that appellant sustained a right shoulder strain, right upper arm
sprain and disorder of the right shoulder bursae and tendons as a result of the September 9, 2002
employment injury. Appellant accepted the position of modified full-time distribution clerk on
April 26, 2004. By decision dated September 20, 2005, the Office found his actual earnings in
this position fairly and reasonably represented his wage-earning capacity. Appellant filed a
claim for a recurrence of disability for medical benefits only on May 6, 2008 and stopped work
on July 31, 2008, although he worked a few days in September and November 2008 before
stopping again on December 8, 2008. The question is whether he established that the
September 20, 2005 wage-earning capacity decision should be modified.
Appellant did not allege that the original LWEC determination was erroneous or that he
had been retrained or otherwise vocationally rehabilitated. He has contended that his right
shoulder condition has materially worsened since May 2008 and that the new modified job offers
by the employing establishment violated his work restrictions. The Board finds that the record is
devoid of any medical evidence supporting appellant’s contention that his right shoulder
condition had materially changed. The only relevant medical evidence submitted by appellant is
from Dr. Lee, an attending Board-certified physiatrist. On July 18, 2008 Dr. Lee noted that
appellant’s right shoulder was within functional active range limits although she noted mildly
limited right shoulder adduction and flexion and tenderness on palpitation. She did not provide
any opinion that appellant’s condition had changed and noted that he was to continue working
4

D.M., 59 ECAB ___ (Docket No. 07-1230, issued November 13, 2007).

5

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
7

Federal (FECA) Procedure Manual, supra note 6. See Harley Sims, Jr., 56 ECAB 320 (2005).

8

See D.M., supra note 4; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
9

Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

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within his current restrictions. In July 25, August 22 and September 15, 2008 reports, Dr. Lee
diagnosed right shoulder pain. She did not provide any opinion addressing a material change in
the nature of appellant’s accepted condition. None of the reports by Dr. Lee describe a change of
the accepted conditions or explained how the accepted conditions had materially worsened such
that appellant was unable to work at the modified jobs offered at the employing establishment.
The Board finds that appellant has not submitted sufficient medical evidence to establish that the
September 20, 2005 wage-earning capacity determination should be modified. Appellant has not
met his burden of proof.
CONCLUSION
The Board finds that the Office properly denied modification of the established
September 20, 2005 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 3, 2009 and September 10, 2008 are affirmed.
Issued: March 15, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0493
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 15, 2021 appellant, through counsel, filed a timely appeal from a
December 17, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the December 17, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted January 1, 2005
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 22, 2005 appellant, then a 65-year-old lead screener, filed a notice of
recurrence (Form CA-2a) alleging that on January 1, 2005 he experienced a recurrence of a
previously accepted cervical spine condition. 5 He stopped work on February 12, 2005 and did not
return. OWCP developed the claim as one for a new occupational disease (Form CA-2). On
May 5, 2005 it accepted a lumbar strain, cervical thoracic strain, and lumbar radiculopathy. On
July 27, 2005 OWCP expanded its acceptance of the claim to include the additional diagnosis of
an L4-5 disc herniation.
On August 29, 2005 appellant underwent an OWCP-authorized laminectomy, facetectomy,
and foraminotomy at L4 and L5. OWCP paid wage-loss compensation. It placed appellant on the
periodic rolls, effective February 19, 2006.
Appellant underwent a series of OWCP-authorized cervical facet block and cervical
epidural injections from January 12 through July 18, 2007, and lumbar epidural steroid injections
on August 28, 2007.6 From December 30, 2014 through January 23, 2017, he also underwent a
series of OWCP-authorized bilateral L3, L4, and L5 medial branch and dorsal ramus blocks,
OWCP-authorized bilateral radiofrequency ablation from L3 through L5, and OWCP-authorized
caudal and bilateral L4-5 transforaminal epidural steroid injections.
On May 30, 2017 OWCP obtained a second opinion regarding appellant’s work capacity
and the etiology of his continuing condition from Dr. Vicki Kalen, a Board-certified orthopedic
surgeon. In a June 21, 2017 report, Dr. Kalen opined that multilevel degenerative disc changes
visible on imaging studies were normal for appellant’s age, and that surgery had resolved the
accepted L4-5 disc herniation. She found that the accepted employment injuries had resolved
4

Docket No. 17-1423 (issued November 8, 2017).

5

Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx865 for a cervical strain.
OWCP administratively combined OWCP File Nos. xxxxxx840 and xxxxxx865, with OWCP File No. xxxxxx840
serving as the master file.
6

A January 23, 2006 cervical magnetic resonance imaging (MRI) scan demonstrated disc narrowing at C4-5, C5-6,
and C6-7 with degenerative disc bulges. A June 3, 2008 lumbar MRI scan demonstrated bilateral posterior
laminectomies at L4-5 with 5 millimeter (mm) anterolisthesis of L4 on L5, increased since a March 4, 2005 study,
resulting in bilateral neural foraminal narrowing, with possible compression of the left exiting L4 nerve root, a
posterior osteophyte at L5-S1 contributing to moderate bilateral neural foraminal narrowing with contact of the exiting
L5 nerve roots bilaterally, mildly increased posterior disc bulge at L2 -3 with mild spinal canal and neural foraminal
narrowing, and moderate-to-severe facet arthropathy at L4-5. June 3, 2008 lumbar x-rays demonstrated a Grade 1
anterolisthesis of L4 on L5 with instability, and prominent degenerative disc disease present at L5 -S1.

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without residuals. In a July 10, 2017 supplemental report, Dr. Kalen noted work restrictions
related to appellant’s age of 78 and age-related spinal complaints, unrelated to the employment
injury.
In a July 20, 2017 report, Dr. Russel R. Kinder, Board-certified in anesthesiology and pain
medicine, diagnosed a sprain of the ligaments of the cervical and lumbar spine. On September 6,
2017 he performed OWCP-authorized bilateral transforaminal epidural steroid injections at L4-5.
Dr. Kinder diagnosed lumbar radiculopathy. 7
On March 6, 2018 OWCP found a conflict of medical opinion between Dr. Kalen, for the
government, and Dr. Kinder, for appellant, regarding the relationship of appellant’s continuing
condition to the employment injury. To resolve the conflict, on March 20, 2018 OWCP referred
appellant for an impartial medical examination with Dr. Lowell Anderson, a Board-certified
orthopedic surgeon. In an April 18, 2018 report, Dr. Anderson, serving as the impartial medical
examiner (IME), reviewed appellant’s history of injury, medical records, and the statement of
accepted facts (SOAF). On examination, he observed restricted range of motion of the cervical
spine, paraspinal tenderness to palpation of the cervical spine, left intrascapular region, and
lumbosacral junction, possible mild weakness of the left lower extremity evident on toe -raise and
step testing, possible mild hamstring weakness in the left lower extremity, subjective dec reased
sensation in the second, third, and fourth fingers of the left hand, minimally decreased sensation
in the fifth finger of the left hand, limited lumbar range of motion, decreased sensation in the entire
left lower extremity, and negative seated straight leg raising tests bilaterally. Dr. Anderson also
noted that thigh circumference at 10 centimeters proximal to the patella was 51/49, right over left.
He diagnosed multilevel cervical spondylosis, cervical spinal stenosis, likely left upper extremity
radiculopathy symptoms related to nerve root irritation at multiple levels of the cervical spine,
central cervical stenosis related to genetic and age-related progression of a preexisting cervical
condition. Dr. Anderson opined that the accepted injury “with likely L4-5 herniated disc” and
surgery had resolved without residuals as it was “likely satisfactorily treated” by surgery. He noted
that appellant’s ongoing cervical and lumbar conditions were due only to age-related degenerative
changes. Dr. Anderson indicated that appellant had attained maximum medical improvement
“many years ago.” He found appellant unable to perform his date-of-injury position due to
nonoccupational, age-related degenerative changes of the cervical and lumbar spine.
On May 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation as he
was no longer disabled from work as a result of the accepted January 1, 2005 injuries, based on
Dr. Anderson’s opinion as the IME. It afforded him 30 days to respond.
In a letter dated June 6, 2018 appellant, through counsel, contended that Dr. Anderson
failed to differentiate between sequelae of the employment injury and age-related degenerative
changes. Appellant submitted a June 1, 2018 report by Dr. Xi Tian, Board-certified in
anesthesiology and pain medicine, diagnosing a ligamentous cervical spine sprain and chronic
postoperative pain.
By decision dated June 14, 2018, OWCP terminated appellant’s wage-loss compensation,
effective that day, based on the special weight accorded Dr. Anderson’s report as the impartial
7

A December 6, 2017 MRI scan of the cervical spine demonstrated moderate-to-severe spondylosis at C5-6, C6-7,
and C7-T1 with spinal stenosis, multiple areas of facet arthrosis, and neuroforaminal narrowing.

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medical examiner. It noted that the decision did not affect appellant’s entitlement to medical
benefits.
On June 19, 2018 OWCP received a June 7, 2018 report by Dr. Tian, diagnosing a sprain
of ligaments of cervical spine.
In a June 22, 2018 report, Dr. Richard Wohns, a Board-certified neurosurgeon, noted the
accepted January 1, 2005 occupational injury and diagnosed cervical stenosis, cervical
radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. 8 He opined that the
January 1, 2005 employment aggravated or activated these latent, asymptomatic conditions. 9
On July 3, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held November 14, 2018.
In a December 11, 2018 letter, counsel asserted that OWCP should expand its acceptance
of the claim to include an L5-S1 disc herniation, lumbar stenosis, and failed back syndrome.
Appellant submitted additional evidence.
By decision dated January 29, 2019, an OWCP hearing representative affirmed the
June 14, 2018 termination decision.
On February 11, 2019 OWCP received a November 1, 2018 report by Dr. Wohns, in which
he opined that appellant’s cervical and lumbar conditions were caused by repetitive flexion and
extension of the upper and lower body while lifting and throwing heavy luggage at work on
January 1, 2005. Dr. Wohns explained that appellant’s accepted lumbar sprain, cervical-thoracic
sprain, herniated L4-5 disc, and lumbar radiculitis had naturally progressed over time subsequent
to a failed L4-5 laminectomy. He listed additional diagnoses of cervical stenosis, cervical
radiculopathy, and bilateral occipital neuralgia. 10
On April 11, 2019 OWCP received a November 15, 2018 report by Dr. Tian, diagnosing
lumbago, other chronic postoperative pain, and a ligamentous lumbar sprain.
8

A July 11, 2018 MRI scan of the lumbar spine demonstrated central stenosis at L2 -3 with broad-based central
protrusion, L3-4 central stenosis with broad-based bulging, small central canal, and left foraminal and central disc
protrusion, degenerative spondylosis at L4-5 with marked narrowing of the right nerve root and marked flattening of
the existing L4 nerve, L5-S1 broad-based disc bulging and retrolisthesis with bilateral neuroforaminal narrowing, and
right S1 nerve root displacement.
9

Appellant consulted several other physicians in 2018 and 2019. In an October 25, 2018 report, Dr. David
Hoffman, a Board-certified family practitioner, referred him to a pain management clinic. In a January 10, 2019
report, Dr. Darin Blackburn, a Board-certified family practitioner, noted treating appellant since the January 1, 2005
employment injury. He opined that appellant’s injury-related cervical and lumbar spine symptoms had not resolved
and necessitated work limitations. In reports dated January 25 and April 10, 2019, Dr. Michael J. Martin, a Boardcertified orthopedic surgeon, noted a history of the accepted January 1, 2005 employment injury and subsequent
treatment. On examination he noted slightly diminished cervical and lumbar lordosis, and limited range of cervical
and lumbar spine motion. Dr. Martin recommended physical therapy.
10

A March 8, 2019 MRI scan of the cervical spine and April 9, 2019 MRI scans of the thoracic and lumbar spine
demonstrated degenerative changes throughout the spine as evident on prior imaging studies. The April 9, 2019
lumbar MRI scan demonstrated a midline laminectomy with excellent decompression of the spinal canal at L4-5 and
L5-S1.

4

In July 1, 2019 and January 8, 2020 reports, Dr. Wohns opined that appellant required a
C5-6 and C6-7 anterior cervical discectomy and fusion, and extension of the prior lumbar
laminectomy to include L2 and L3 due to severe lumbar stenosis.
On January 16, 2020 appellant, through counsel, requested reconsideration of the
January 29, 2019 decision.
In a January 21, 2020 report, Dr. Wohns noted that the January 1, 2005 L4-5 laminectomy
had relieved appellant’s bilateral lower extremity radiculopathy, but that sharp, persistent lumbar
pain remained. He diagnosed bilateral occipital neuralgia, cervical radiculopathy, cervical
stenosis, cervical pain, lumbar stenosis with neurogenic claudication, mid back pain, and low back
pain.11
By decision dated January 29, 2020, OWCP denied modification of the prior decision.12
In a February 4, 2020 report, Dr. Wohns diagnosed cervical stenosis of the spinal canal,
lumbar stenosis with neurogenic claudication, and mid-back pain. He ordered a cervical MRI scan.
A June 25, 2020 MRI scan of the cervical spine demonstrated left C2-3 facet arthropathy,
a mild C3-4 disc protrusion with facet arthropathy and bilateral bony foraminal stenosis, possible
partial bony fusion of the endplates and right facets at C4-5 with mild bony stenosis of the right
foramen, degenerative disc narrowing at C5-6 with posterior disc protrusion and central canal
narrowing, partial desiccation of the C6-7 disc with diffuse posterior disc protrusion and central
canal narrowing, and mild anterolisthesis of C7 on T1 with mild posterior disc protrusion and facet
arthropathy.
In a July 20, 2020 report, Dr. Wohns opined that the June 25, 2020 MRI scan demonstrated
the need for a C5-6 andC6-7 microdiscectomy and fusion, to be followed by L2 to L4
laminectomies and foraminotomies.
In an August 13, 2020 letter, counsel requested that OWCP expand its acceptance of
appellant’s claim to include additional conditions as noted by Dr. Wohns. She submitted August 4
and November 17, 2020 letters by Dr. Wohns, who related appellant’s account that the January 5,
2005 employment incident caused the sudden onset of excruciating “electric shock-like pain”
throughout his neck and back, radiating into his head and all extremities. Dr. Wohns explained
that the employment injury caused a herniated lumbar disc “due to a mechanical strain between
two vertebrae, as he twisted to throw the luggage.” He opined that the employment incident also
caused spondylosis and radiculopathy at C5-6, C6-7, and C7-T1 due to strain in his spine “and
shoulder as he twisted to throw the heavy luggage.” Dr. Wohns reiterated that the January 5, 2005
employment injury directly caused or aggravated preexisting cervical stenosis of the spinal canal,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain.
11

In a January 17, 2020 report, Dr. Kathy Wang, an osteopathic physician Board-certified in anesthesiology,
administered a discogram with provocative lumbar discography at L2 -3, L3-4, and L5-S1, which demonstrated
nonconcordant pain at L2-3, L3-4, and L4-5.
12

On July 27, 2020 appellant, through counsel, appealed the January 29, 2020 merit decision to the Board. By
decision dated February 9, 2022, the Board reversed the January 29, 2020 decision, finding that IME Dr. Anderson’s
report was inconsistent with the SOAF. Docket No. 20-1442 (issued February 9, 2022).

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On November 17, 2020 OWCP referred the medical record and SOAF to Dr. Michael M.
Katz, a Board-certified orthopedic surgeon serving as OWCP’s district medical adviser, for an
opinion on whether the accepted employment injury caused additional conditions. Dr. Katz
submitted a November 19, 2020 report in which he reviewed the medical record and SOAF. He
disagreed with Dr. Wohns’ support for causal relationship, as appellant’s cervical spine conditions
were present prior to a January 23, 2006 MRI scan, and the accepted cervical spine sprain was a
self-limiting condition. Dr. Katz opined that appellant’s cervical spondylosis, cervical stenosis,
and bilateral occipital neuralgia were due to the aging process and “natural history of the
degenerative conditions of the cervical spine” rather than a neck sprain. He commented that the
proposed diagnosis of low back pain was vague, and duplicative of the accepted lumbar conditions,
which were known to produce low back pain.
By decision dated December 17, 2020, OWCP denied expansion of the claim to include
additional conditions, as they appeared to be preexisting or degenerative in nature, unrelated to the
accepted January 1, 2005 employment injury. It accorded the weight of the medical evidence to
the opinion of Dr. Katz.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.14 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 accepted employment injury. 15 The weight of medical evidence is 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.16
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 17 When there are opposing reports of virtually

13

J.R., Docket No. 20-0292 (issued June 26, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

E.W., Docket No. 20-0338 (issued October 9, 2020).

15

L.P., Docket No. 20-0609 (issued October 15, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

16

C.L., 20-0213 (issued September 15, 2021); J.L., Docket No. 20-0717 (issued October 15, 2020); James Mack,
43 ECAB 321 (1991).
17

5 U.S.C. § 8123(a); D.B., Docket No. 19-0663 (issued August 27, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

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equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 18
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his request for claim expansion, appellant submitted reports dated June 22,
2018 through November 17, 2020 by Dr. Wohns. In a June 22, 2018 report, Dr. Wohns opined
that the January 1, 2005 employment injury aggravated or activated latent cervical stenosis,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. He
indicated, in July 1, 2019, January 8, 2020 and July 20, 2020 reports, that sequelae of the
January 1, 2005 injury required C5-6 and C6-7 anterior discectomy and fusion, and extension of a
prior lumbar laminectomy to L2-3. Dr. Wohns explained in his August 3, 2020 letter that
repetitive flexion and extension of the upper and lower body while lifting and throwing heavy
luggage at work on January 1, 2005 caused the additional cervical and lumbar conditions. In his
November 17, 2020 letter, he attributed C5-6, C6-7, and C7-T1 radiculopathy to a strain in
appellant’s spine and shoulder as he twisted to throw heavy luggage on January 5, 2005.
In a November 19, 2020 report, Dr. Katz advised that Dr. Wohns’ reports failed to support
a causal relationship between the January 1, 2005 employment injury and cervical spondylosis,
cervical stenosis, and bilateral occipital neuralgia. He opined that these diagnoses were preexisting
conditions unrelated to the January 1, 2005 employment injury, and that the diagnosis of low back
pain was vague and duplicative.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint an impartial medical specialist who shall make an
examination. 19 The Board finds that a conflict exists between the appellant’s treating physician,
Dr. Wohns, and the DMA, Dr. Katz, regarding whether the claim should be expanded to include
additional cervical conditions.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical specialist for resolution of the conflict in medical opinion evidence in accordance with
5 U.S.C. § 8123(a).20 After this and other such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

D.B., id., D.W., Docket No. 18-0123 (issued October 4, 2018).

19

A.R., Docket No. 19-1204 (issued February 25, 2021); see S.S., Docket No. 19-1658 (issued November 12, 2020);
C.S., Docket No. 19-0731 (issued August 22, 2019).
20

A.R., id.; S.M., Docket No. 19-0397 (issued August 7, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 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: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER FLEET FORCES CMD SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 10-2030
Issued: June 9, 2011

Case Submitted on the Record

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

JURISDICTION
On August 3, 2010 appellant filed a timely appeal from a June 28, 2010 merit decision of
the Office of Workers’ Compensation Programs denying his claim for compensation. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
hearing loss in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 25, 2010 appellant, then a 57-year-old training instructor, filed an
occupational disease claim (Form CA-2) alleging that he sustained bilateral hearing loss as a
result of employment-related noise exposure. He stated that he would ask people to repeat verbal
communications, could not hear warning sounds or signals from moving equipment and was
unable to understand commands from the power amplfier system. Appellant first became aware
of his claimed condition on November 15, 1988. He continued to work for the employing
establishment until June 2009, when he retired.
By letter dated March 23, 2010, the Office requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment, and all nonoccupational exposure to noise. The Office also requested that he
provide medical documentation pertaining to any prior treatment he received for ear or hearing
problems. It 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
whether he wore ear protection.
Appellant’s detailed work history showed that he had been working for Norfolk Naval
Shipyard (NNSY) in various positions from October 1979 to June 2009 when he retired. From
1969 to 1979 he worked as an automobile mechanic in both the private sector and the Federal
Government.
A number of position descriptions were submitted including marine machinery mechanic
supervisor (nuclear), marine machinery mechanic and quality assurance specialist. The work
environment for a marine machinery mechanic supervisor included working around machinery
with moving parts and objects, vibrations, elevators, electricity, sharp edges and being in close or
confined spaces. Environmental factors for a marine machinery mechanic included intermittent
excessive noise, constant noise and vibration.
In a June 14, 2002 audiological evaluation, Dr. S.E. Lewis, a treating audiologist for
NNSY, reported that appellant had sensorineural hearing loss at 395 decibels (dB) and restricted
appellant from working in areas of noise exceeding 85 dB. Hearing conservation data and
audiograms were submitted from the employing establishment for the period April 29, 1987 to
June 13, 2002 which evidenced appellant’s hearing loss.
Appellant signed forms showing that he received hearing conservation education and
training from 1989 to 2000. He also received notice of significant threshold shift reports from
February 6, 1995 to March 23, 1998. The reports notified appellant that he had a change in his
hearing which could be work related and permanent. Appellant was advised that it was
mandatory to use some type of hearing protective device when entering a work area posted as
noise hazardous or when using noise hazardous tools or equipment.
Appellant submitted a November 11, 2009 medical report from Dr. Karah M. Lanier,
Board-certified in diagnostic radiology and neuroradiology, who noted a history of right-sided
hearing loss greater than the left. Upon examination, Dr. Lanier found the AICA loop protruded

2

into the medial right internal auditory canal. She noted prominent coursing vascular structure
with a lateral left pons and lateral left posterior fossa which most likely represented a venous
structure of uncertain clinical significance. Dr. Lanier also reported an inflammatory sinus
mucosal disease and a small left retrocerebellar probable arachnoid cyst.
In a November 24, 2009 note, Dr. L. Frederick Lassen, a Board-certified
otolaryngologist, reported that appellant was last seen by him on November 4 and 17, 2009 for
progressive hearing loss with bilateral, nonpulsatile tinnitus. He noted that appellant had trouble
localizing sound which was worse when there was background noise. Appellant did not wear a
hearing aid. Dr. Lassen noted that appellant had worked at NNSY as a marine machinist from
1975 to 2009 and was exposed to high levels of noise, including grinders, steam turbines and
high frequency operating machinery. Appellant was also exposed to significant acoustic trauma
in 1994 when a large metal box lid was dropped in front of him. His last industrial noise
exposure was on June 19, 2009. Dr. Lassen noted that appellant engaged in hunting and
shooting for sport but wore hearing protection. He also reported that appellant had military
experience around aircraft maintenance in the U.S. Air Force from 1971 to 1972. Dr. Lassen
noted appellant’s audiogram as showing a speech reception threshold of 30 dB in the right ear
and 25 dB in the left ear, a speech discrimination score of 64 percent in the right ear and 96
percent in the left ear and a slight “noise-notch” at the 4,000 to 6,000 hertz range. He opined that
the audiogram was consistent with noise-induced hearing loss and believed it to be a result of
appellant’s workplace exposure due to the intensity and duration of noise.
A March 10, 2010 noise dosimetry summary from the employing establishment provided
samples from 1990 to 2000. In an April 2, 2010 report, Dr. Robert Rogers, an employing
establishment physician and certified audiologist, reviewed appellant’s medical records and
noted that the industrial hygiene noise data for appellant’s job series indicated periodic
hazardous noise exposure. He also noted that appellant’s ear, nose and throat diagnosis was
“[workplace] noise [-] induced hearing loss” and that appellant was notified of changes in his
hearing, issued hearing protection and received hearing conservation education and training. In
an April 5, 2010 report, Dr. Deborah Eichelberger, Board-certified in occupational medicine,
reviewed appellant’s claim file and concurred with Dr. Rogers’ findings.
By letter dated April 15, 2010, the employing establishment controverted appellant’s
claim stating that his employment records showed that he was exposed to noise in the private
sector, the military, and at the employing establishment and that no factual or medical evidence
establishing causal relationship had been submitted.
By decision dated June 28, 2010, the Office denied appellant’s claim finding that he did
not establish that he sustained occupational noise exposure. It specifically noted that he failed to
detail the sources and periods of his noise exposure related to his federal and nonfederal
employment.
LEGAL PRECEDENT
When an employee claims that he sustained an injury in the performance of duty he must
submit sufficient evidence to establish that he experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. He must also establish that such event,

3

incident or exposure caused an injury.2 Once an employee establishes that he sustained an injury
in the performance of duty, he has the burden of proof to establish that any subsequent medical
condition or disability for work, for which he claims compensation is causally related to the
accepted injury.3
Appellant has the burden of establishing by weight of the reliable, probative and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.4 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.5
Although appellant must prove the facts alleged, proceedings under the Act are not
adversarial in nature, nor is the Office a disinterested arbiter. While the claimant has the burden
to establish his or her claim, the Office also has a responsibility in the development of the
evidence.6 This is particularly true when the evidence is of the character normally obtained from
the employing establishment or other government source.7 20 C.F.R. § 10.118(a) states: The
employer is responsible for submitting to the Office all relevant and probative factual and
medical evidence in its possession or which it may acquire through investigation or other means.
Such evidence may be submitted at any time.
ANALYSIS
The issue is whether appellant established that he sustained an employment-related
hearing loss due to noise exposure during his federal employment. The Board finds that this case
is not in posture for decision and must be remanded for further development.
In order to establish a compensable injury, appellant is required to establish that his
hearing loss resulted from noise exposure during his employment.8
Appellant submitted a Form CA-2 which alleged that he developed hearing loss in both
ears as a result of employment-related noise exposure from November 15, 1988 to June 2009. A
detailed work history noted the different employment positions he held along with the length of
time at each position. Job descriptions were also submitted for employment positions that
appellant held. The positions reflected that he worked around machinery with moving parts and
2

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
3

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

4

Stanley K. Takahaski, 35 ECAB 1065 (1984).

5

See John W. Butler, 39 ECAB 852, 858 (1988).

6

See Claudia A. Dixon, 47 ECAB 168 (1995).

7

R.E., 59 ECAB 323 (2008); Willie A. Dean, 40 ECAB 1208 (1989).

8

See Leon Thomas, 52 ECAB 202 (2001).

4

objects, vibrations, elevators, electricity sharp edges and was in close or confined spaces.
Environmental factors included intermittent excessive noise, constant noise and vibration.
Although appellant did not submit a narrative statement detailing his noise exposure, he
submitted physician’s reports detailing his accounts of noise exposure at NNSY. Dr. Lanier’s
November 24, 2009 report noted that appellant was exposed to high levels of noise, including
grinders, steam turbines and high frequency operating machinery. He concluded that appellant’s
noise-induced hearing loss was a result of his workplace exposure due to the intensity and
duration of noise. Appellant also submitted position descriptions which related that his
employment duties included working around machinery with an environment of intermittent
excessive noise, constant noise and vibrations. It is also apparent that he was exposed to noise in
the workplace as evidenced by the fact that he was given yearly audiological testing and hearing
conservation education and training by his employing establishment, which noted that the change
in his hearing could be work related.
A March 10, 2010 Noise Dosimetry Summary from the employing establishment
provided samples from 1990 to 2000. The employing establishment also submitted a number of
audiograms, hearing conservation data, and notice of significant threshold shift reports which
identified a change in appellant’s hearing. While the employing establishment provided some
evidence regarding appellant’s levels of exposure to hazardous noise during the course of his
federal employment, it failed to provide levels of noise exposure past 2000 although appellant
was employed from 1979 to 2009. The Office initially requested that the employing
establishment provide detailed information about appellant’s noise exposure in a March 23, 2010
development letter, including copies of noise level surveys for each work location, the sources
and periods of noise exposure and whether he wore ear protection.
It is well established that proceedings under the Act are not adversarial in nature, nor is
the Office a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, the Office shares the responsibility in the development of the evidence to see that
justice is done.9 Because the levels and duration of exposure to hazardous noise is the type of
evidence normally obtained from the employing establishment, it has a particular responsibility
to develop this evidence.10 The Office failed to obtain information about the duration and level
of appellant’s noise exposure during the full course of his federal employment prior to denying
his claim. The Board will remand the case for the Office to obtain the dates and periods of
appellant’s noise exposure at the employing establishment, the specific decibel levels to which
he was exposed and whether hearing protection was provided.11

9

Richard Kendall, 43 ECAB 790 (1992); Isidore J. Gennino, 35 ECAB 442 (1983).

10

Id.; see also R.B., Docket No. 08-1662 (issued December 18, 2008).

11

See David Rossman, 9 ECAB 454 (1957) (where the Board remanded the case finding that the record was
devoid of evidence from the employing establishment and the claimant regarding the levels and length of noise
exposure and, thus, was not in posture for decision regarding the claimant’s claim for hearing loss); S.E., Docket No.
08-2243 (issued July 20, 2009).

5

Additionally, regarding the Office’s finding that appellant had not established exposure to
hazardous noise, the Office’s procedure manual provides:
“It is generally accepted that hearing loss may result from prolonged exposure to
noise levels above 85 decibels. Acoustic trauma may, however, result from
decibel levels below 85 decibels if exposure is sufficiently prolonged. [The
Office] therefore does not require that the claimant show exposure to injurious
noise in excess of 85 decibels as a condition to approval of the claim.”12
Consequently, regardless of the specific decibel level of exposure, the Office must
consider whether the employment-related noise exposure was sufficiently prolonged to result in
acoustic trauma.13 Such a question is medical in nature and should be resolved by a Boardcertified otolaryngologist. The Office’s procedure manual directs the Office to refer appellant
for audiological evaluation and otological examination unless a reliable medical report is already
in the record.14 Upon remand, the Office should obtain the pertinent factual evidence, prepare a
statement of accepted facts and refer appellant for an otological and audiological evaluation.
Thus, the Board finds that this claim is not in posture for decision and must be remanded
for further development. On remand, the Office should make additional requests to the
employing establishment and make findings of fact concerning the noise level in the employing
establishment and the length and period of such exposures.15 After further development as it
deems appropriate, the Office shall issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.8(a)
(October 1990).
13

Eufrosino T. Torrado, Docket No. 95-1208 (issued February 14, 1997).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a)(1) (October 1990).
15

See David Rossman, 9 ECAB 454 (1957) (where the Board remanded the case finding that the record was
devoid of evidence from the employing establishment and the claimant regarding the levels and length of noise
exposure and, thus, was not in posture for decision regarding the claimant’s claim for hearing loss); S.E., Docket No.
08-2243 (issued July 20, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: June 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 15-0923
Issued: September 15, 2015

Case Submitted on the Record

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

JURISDICTION
On March 23, 2015 appellant filed a timely appeal from a January 28, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that his left knee
condition is causally related to his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following its January 28, 2015 decision. The Board
lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On October 24, 2014 appellant, then a 27-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained knee strain due to repetitive stair climbing.
He first became aware of his condition on October 8, 2014 and first realized that it resulted from
his employment on October 9, 2014. Appellant did not stop work.
Employing establishment accident reports from October 9 and 17, 2014 indicate that
appellant reported having knee pain on October 8 and 16, 2014 while delivering mail. Appellant
attributed the injury to being out of shape.
In an October 21, 2014 statement, appellant reported that his left knee pain began on
October 9, 2014 while climbing stairs at customers’ residences. He explained that he recently
transitioned from a driving route to a walking route and that the change caused his injury.
Appellant reported no history of knee problems.
OWCP received an October 15, 2014 workers’ compensation form report. On his portion
of the form, appellant stated that he suffered knee pain after walking up and down stairs.
Dr. Jeffrey Olenick, Board-certified in family medicine, diagnosed leg pain. In an October 15,
2014 report, he reported seeing appellant for knee pain. Dr. Olenick noted appellant’s assertion
that his pain stemmed from excessive stair climbing. After a physical examination, he diagnosed
hamstring tendinitis. In an October 15, 2014 work restrictions letter, Dr. Olenick advised that
appellant should not climb stairs, but could return to normal duty after two weeks.
In an October 21, 2014 duty status report (Form CA-17), James Cooke, a family nurse
practitioner, diagnosed appellant with knee strain and provided work restrictions. In an
October 21, 2014 form report, he authorized modified work from October 21 to
November 18, 2014.
In a November 10, 2014 letter, OWCP informed appellant that the evidence of record was
insufficient to support his claim. It advised him to provide a medical report containing a
diagnosis and a physician’s opinion supported by a medical explanation as to how work factors
resulted in the claimed condition.
Appellant provided physical therapy records noting an initial assessment of leg pain on
October 30, 2014. Ann Scherner, a physical therapist, described appellant’s mechanism of injury
as cumulative stair climbing during employment. In a November 3, 2014 plan of care report,
Dr. Benjamin Taylor, Board-certified in family medicine, reported that appellant’s knee pain was
due to prolonged stair climbing on his mail route.
In October 21, 2014 progress notes, Mr. Cooke related that appellant complained of left
knee pain, attributing his injury to his work duties. He diagnosed knee and hamstring strain and
asserted that he would have Dr. Taylor cosign the report.
In a November 14, 2014 workers’ compensation form report, Dr. Lori Gross, Boardcertified in occupational medicine, diagnosed appellant with knee and hamstring strain and
authorized modified work from November 14 to December 1, 2014. In a November 14, 2014
progress report, she related that he attributed his left knee injury to repetitive stair climbing.
2

Based on chart notes, Dr. Gross diagnosed left knee and hamstring strain, but noted that
appellant’s symptoms had resolved. She indicated that he could work full duty except for
limiting stair climbing to six hours a day.
December 1 and 15, 2014 reports reflect that Dr. Gross saw appellant for follow-up
appointments and she again attributed his injury to repetitive stair climbing at work. She further
reported that his symptoms had resolved. In the December 15, 2014 report, Dr. Gross advised
that appellant could work full duty without restrictions and she released him from her care.
In a January 28, 2015 decision, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that his condition was causally related to the accepted work
events.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,3 including that he or she is an employee within the meaning of FECA4 and that he or
she filed his or her claim within the applicable time limitation.5 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.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue8 and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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 employee.9
3

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

4

See M.H., 59 ECAB 461 (2008); see 5 U.S.C. § 8101(1).

5

R.C., 59 ECAB 427 (2008); see id. at § 8122.

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

Mary J. Briggs, 37 ECAB 578 (1986).

9

Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS
OWCP accepted that appellant’s duties included repetitive stair climbing. The issue,
therefore, is whether appellant established that he sustained a knee injury as a result of his
employment duties. The Board finds that the medical evidence of record is insufficient to
establish a causal relationship between his claimed left knee condition and his employment
duties.
An October 30, 2014 report, signed by Dr. Taylor on November 3, 2014, diagnosed knee
pain and stated that appellant’s injury was caused by prolonged stair climbing. While the report
indicates that he believed appellant’s work contributed to his knee pain, it does not provide a
definitive diagnosis10 or a detailed explanation of the reasons supporting Dr. Taylor’s opinion.
Specifically, Dr. Taylor failed to explain the process whereby ascending and descending stairs
would rationally cause the claimed condition. The Board has long held that a medical opinion
not fortified by medical rationale is of little probative value.11 Thus, the report is insufficient to
establish appellant’s claim.
In an October 15, 2014 report, Dr. Olenick reported that appellant complained of left
knee pain due to excessive stair use. He diagnosed hamstring tendinitis. Dr. Olenick did not,
however, provide his own opinion regarding whether appellant’s work activities caused or
contributed to the diagnosed condition. Instead, he merely related the history of injury as
reported by appellant. To the extent that Dr. Olenick’s statements reflect his own opinion on
causal relationship, he failed to provide any medical rationale explaining how the mechanisms of
excessive stair use caused the diagnosed hamstring tendinitis.12 His October 15, 2014 form
report did not provide any opinion as to the cause of appellant’s condition. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.13
In reports dated November 14 through December 15, 2014, Dr. Gross related that
appellant attributed his injury to repetitive work activity. While she provided a history of injury,
she did not specifically furnish an opinion regarding the cause of his condition. Absent an
opinion as to whether appellant’s condition was work related, Dr. Gross’ reports are of limited
probative value.14
The Board also notes that appellant submitted reports from a nurse practitioner and
physical therapist that were not signed by a physician. These reports do not constitute probative
10

The Board notes that knee pain is a symptom, not a medical diagnosis, and subjective complaints of pain are
not sufficient, in and of themselves, to support compensation benefits under FECA. 20 C.F.R. § 10.501(a)(3); G.M.,
Docket No. 15-279 (issued April 2, 2015).
11

Brenda L. Dubuque, 55 ECAB 212, 217 (2004); Donald W. Long, 41 ECAB 142 (1989).

12

See Brenda L. Dubuque, id.

13

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

14

Id.

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medical opinion evidence as nurse practitioners and physical therapists are not physicians as
defined under FECA.15
On appeal, appellant contends that the transition from a driving mail route to a walking
mail route caused his injury, as the walking route provided new physical stress. The Board has
held that a belief that a disease was caused or aggravated by employment factors or incidents is
insufficient to establish causal relationship.16 Causal relationship must be substantiated by
reasoned medical opinion evidence. As established above, appellant failed to provide such
evidence.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his left
knee condition is causally related to his federal employment.

15

L.B., Docket No. 13-1253 (issued September 18, 2013) (physician assistants, physical therapists, physical
therapy assistants, and nurse practitioners do not qualify as physicians under FECA and, therefore, their medical
reports do not qualify as probative medical evidence supportive of a claim for federal workers’ compensation, unless
such medical reports are countersigned by a physician). See 5 U.S.C. § 8101(2) (defines the term “physician” as
used in FECA); see also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).
16

Joe T. Williams, 44 ECAB 518, 521 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the January 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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Appearances:
Shane A. Henry, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1992
Issued: September 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 28, 2013 appellant, through his attorney, filed a timely appeal from a July 30,
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 claim.
ISSUE
The issue is whether appellant established a recurrence of disability on June 13, 2012 due
to his accepted employment-related injuries.
FACTUAL HISTORY
On July 18, 1996 appellant, then a 45-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed injuries to his upper extremities as a result

1

5 U.S.C. § 8101 et seq.

of his repetitive employment duties. OWCP accepted the claim for bilateral carpal tunnel
syndrome (CTS), left elbow lateral epicondylitis and bilateral shoulder impingements.2
As a result of appellant’s accepted employment-related injuries, OWCP authorized
surgeries for release of left extensor tendon on August 6, 1999; arthroscopic left shoulder
subacromial decompression with debridement of the biceps on January 2, 2002; right carpal
tunnel release on January 8, 2003 and an arthroscopic right shoulder debridement of the rotator
cuff, glenoid and humeral head with a subacromial decompression on May 12, 2004. Appellant
returned to full-duty work after intermittent periods of disability.
On June 5, 2012 appellant filed a notice of recurrence claim alleging a return/increase of
disability as of June 13, 2012. He stated that he continued to perform his repetitive employment
duties but suffered from increased inflammation and pain over the years.
In support of his claim, appellant submitted a May 31, 2012 work capacity evaluation
(Form OWCP-5c) and duty status report (Form CA-17) from his treating physician,
Dr. Robert F. McCarron, Board-certified in orthopedic surgery, who reported that appellant
could not perform his usual employment duties as a result of his bilateral CTS, left elbow lateral
epicondylitis and bilateral shoulder impingement from his July 16, 1996 employment injury.
By letter dated June 15, 2012, Dr. McCarron stated that appellant had been under his care
since 1995 for bilateral upper extremity conditions, which had been a chronic ongoing problem
involving his shoulders, arms and hands. He stated no recurrent date applied.
By letter dated June 25, 2012, Karen Osowski, a postmaster at the Conway Post Office,
controverted the claim. Postmaster Osowski stated that appellant submitted his CA-2a form on
June 13, 2012 but had been on annual leave for the past few weeks and had not been at work
performing his regular letter carrier duties. Appellant had not returned to work since he
submitted his June 13, 2012 CA-2a form.
By letter dated June 28, 2012, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was provided with a questionnaire for completion,
advised of the medical and factual evidence needed and was directed to submit it within 30 days.
By letter dated July 9, 2012, the employing establishment again controverted the claim
stating that appellant could not have suffered an employment-related recurrence of injury given
that he was on annual leave from May 30 to June 15, 2012.
On July 18, 2012 appellant responded to an OWCP questionnaire stating that numbness,
pain, lack of grip and range of motion had worsened with his repetitive employment duties. He

2

The Board notes that, following appellant’s July 18, 1996 CA-2 form, OWCP accepted the claim for
bilateral CTS. On January 11, 1999 appellant filed a notice of recurrence claim (Form CA-2a) alleging a
return/increase of disability due to increased elbow pain. By decision dated April 13, 1999, OWCP accepted the
claim for left elbow lateral epicondylitis. On October 19, 2001 appellant filed another Form CA-2a alleging a
recurrence of disability as of June 23, 2000 due to ongoing shoulder pain from repetitive work activities. By
decision dated January 2, 2002, OWCP accepted the claim for bilateral shoulder impingement.

2

stated that he had sustained no other injuries since his original injury and did not have any
hobbies or activities which could have affected his work-related conditions.
In support of his claim, appellant submitted a July 17, 2012 medical report from
Dr. McCarron, who reported that appellant had multiple upper extremity complaints, which had
been present for years but continued to worsen. He complained of his hands going to sleep with
activity and driving, bilateral elbow pain and stiffness and discomfort in the fingers with
decreased gripping ability. Appellant’s symptoms decreased with less work. Dr. McCarron
noted a previous history of carpal tunnel surgery and shoulder arthroscopy. He further identified
appellant’s employment as a letter carrier, which required casing mail, lifting mail, reaching for
mail bundles and reaching for and opening mailboxes. Dr. McCarron stated that appellant did
not have one specific injury but had years of repetitive usage of his upper extremities.
Dr. McCarron provided findings upon physical examination and provided review of
diagnostic studies. He stated that a March 28, 2012 electromyogram (EMG) and nerve
conduction study (NCV) of the upper extremities revealed moderate left CTS and mild right
CTS. March 5, 2012 x-rays of the right and left shoulders revealed increased sclerosis at the
greater tuberosity of both shoulders consistent with impingement. X-rays of the right and left
hand revealed cystic subchondral changes in the metacarpophalangeal joints of the index and
middle finger of the left hand, subchondral cysts in the lateral margins of the distal and middle
joints, subchondral degenerative cysts in the index, middle and ring fingers and narrowing of the
distal joints bilaterally. Dr. McCarron diagnosed bilateral osteoarthritis small joints of hands,
bilateral shoulder impingement, bilateral CTS, flexion contractures of both wrists and
bilateral/lateral epicondylitis.
In a narrative report dated July 17, 2012, Dr. McCarron stated that, although the cause of
appellant’s diagnoses can be multifactorial, he believed that appellant’s job as a letter carrier was
most likely the aggravating cause of his symptoms noting that reaching impinges the rotator cuff
and subacromial bursa on the undersurface of the acromion. Repetitive lifting with appellant’s
outstretched arm caused overuse of the extensor tendon origin at the lateral epicondyle at the
elbow. Work stresses caused swelling and nerve compression at the wrist, which was one of the
causes of CTS. The osteoarthritis of appellant’s hands was also most likely due to repetitive
usage as opposed to a single trauma.
By decision dated August 20, 2012, OWCP denied appellant’s recurrence claim finding
that the medical evidence did not establish total disability due to a material worsening of his
accepted employment-related conditions beginning June 13, 2012.
On April 30, 2013 appellant requested reconsideration of the August 20, 2012 OWCP
decision.3

3

The Board notes that appellant initially requested an oral hearing before the Branch of Hearings and Review,
postmarked on September 20, 2012. By decisions dated November 14, 2012 and February 27, 2013, the Branch of
Hearings and Review denied his request for a hearing finding that his request was not made within 30 days of the
August 20, 2012 OWCP decision. The Branch of Hearings and Review further determined that the issue in the case
could equally well be addressed by requesting reconsideration from OWCP.

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In a May 13, 2013 brief, counsel for appellant argued that appellant had established a
recurrence of his bilateral CTS and left elbow lateral epicondylitis, as well as a claim for new
injuries of bilateral osteoarthritis small joints of hand, bilateral shoulder impingement, flexion
contractures of both wrists and bilateral/lateral epicondylitis. He noted that appellant had been
working for the postal service for over 30 years and began suffering adverse medical symptoms
in the mid 1990’s from the constant reaching, grasping, pushing and pulling required from his
employment duties. Counsel further stated that he was submitting documents in support of
appellant’s claim.
In a May 22, 2013 affidavit, appellant reported that he returned to his regular-duty letter
carrier position in March 2006. His regular job duties required constant use of his hands, wrists
and elbows to package mail, sort mail, bundle mail, carry mail, retrieve mail from the back seat,
open and close mailboxes, deposit mail and drive his vehicle. Appellant was also required to
drive with one hand on the steering wheel and reach into the back seat with the other hand,
which caused stress and strain on both shoulders. He stated that his ability to perform these tasks
worsened over the years, especially in the last 24 months of his employment. Appellant noted
that he suffered many painful movements with his shoulders and wrists, but that he could not
overcome the pain and injury he experienced on his last workday in May 2012. He stated that,
outside of his regular work duties, he could barely maintain his own property and animals or do
any other nonfederal work activity. As a result, appellant had to hire outside help to care for his
animals, mow his property, bale hay and other general upkeep. He noted that, on occasion, he
had been able to assist physically by operating his tractor from inside the climate controlled cab
with hydraulic operational controls. However, even getting in and out of the tractor was
sometimes not possible due to appellant’s shoulder, wrist and hand problems. Appellant stated
that occasional operation of his farm tractor was the extent of his nonfederal work activity for the
past eight years. He further noted that he would supervise and instruct, as necessary, but that
required no physical work. In support of his claim, appellant submitted various medical reports
from his treating physicians.
In a March 28, 2012 diagnostic report, Dr. Keith Schluterman, a Board-certified
neurologist, reported that an EMG/NCV study revealed moderate left CTS and mild right CTS.
In a January 28, 2013 medical report, Dr. McCarron reported that appellant complained
of hand numbness and pain in the shoulders. He noted that appellant’s bilateral CTS was fairly
stable and he could obtain relief by taking his hands and shaking. Dr. McCarron recommended a
magnetic resonance imaging (MRI) scan of the shoulders.
In a March 15, 2013 report, Dr. McCarron reported that appellant’s MRI scan of the
shoulders revealed two new diagnoses of bilateral full-thickness rotator cuff tear and bilateral
shoulder acromioclavicular (AC) joints arthrosis. He noted that these diagnoses were a
worsening of appellant’s shoulder conditions. Dr. McCarron further stated that this was
consistent with repetitive trauma, which he opined was a result of appellant’s job as a rural letter
carrier, which required repetitive reaching across his body and repetitive lifting with his
outstretched arm. He recommended repair of the rotator cuff. In a May 25, 2013 note,
Dr. McCarron diagnosed bilateral rotator cuff tear, bilateral shoulder AC joint arthrosis, bilateral
osteoarthritis small joints of hands, bilateral shoulder impingement, bilateral CTS, flexion

4

contractures of both wrists and bilateral/lateral epicondylitis. He noted functional limitations and
stated that appellant was not capable of tolerating work stress.
In a July 5, 2013 statement, Dr. McCarron reported that he had been treating appellant for
the past 20 years. Appellant’s regular job duties required driving with one hand on the steering
wheel and reaching into the back seat with the other hand, which produced stress and strain on
both shoulders. He also repetitively gripped large bundles of mail, which could also strain the
hands and wrists. Other relevant work-related activity included frequent reaching, pushing and
pulling required to retrieve and deliver mail. Dr. McCarron noted that all of these movements
were medically likely to be contributing to the physical impairment that led to appellant’s
inability to work after June 2012. He opined that appellant’s job-related duties were contributing
to or causing his physical impairments, which resulted in pain and limitation of his functional
capacity. Dr. McCarron recommended that appellant not return to his current employment in
June 2012 due to his upper extremity symptoms.
By decision dated July 30, 2013, OWCP affirmed the August 20, 2012 decision finding
that the medical evidence of record failed to establish a recurrence of disability beginning
June 13, 2012 causally related to the accepted employment-related conditions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has 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 because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a 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
OWCP’s procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.6
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
4

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).

5

from a physician who, on the basis of a complete and accurate factual and medical history,
concludes 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
OWCP has accepted bilateral CTS, left elbow lateral epicondylitis and bilateral shoulder
impingements as relating to factors of his federal employment. It authorized left epicondylitis
surgery on August 6, 1999, left shoulder arthroscopy on January 2, 2002, right carpal tunnel
release on January 8, 2003 and right shoulder/rotator cuff arthroscopy on May 12, 2004.
Appellant returned to full-duty work after intermittent periods of disability. On June 13, 2012 he
stopped work, alleging a recurrence of disability.
In its July 30, 2013 decision, OWCP denied appellant’s claim finding that the medical
evidence of record failed to establish a recurrence of disability beginning June 13, 2012 causally
related to the accepted employment-related conditions. The Board finds that the medical
evidence of record is insufficient to establish a recurrence of disability
Medical reports dated May 31, 2012 to July 5, 2013 were submitted from Dr. McCarron,
appellant’s treating physician. In his May 31, 2012 CA-17 form, Dr. McCarron stated that
appellant was totally disabled as a result of his accepted bilateral CTS, bilateral shoulder
impingement and left elbow lateral epicondylitis. In subsequent reports, he provided diagnoses
of bilateral rotator cuff tear, bilateral shoulder AC joints arthrosis, bilateral osteoarthritis small
joints of hands, bilateral shoulder impingement, bilateral CTS, flexion contractures of both wrists
and bilateral/lateral epicondylitis.
The reports dated June 15 and July 17, 2012 and March 15, 2013 of Dr. McCarron do not
provide sufficient medical rationale to establish total disability due to a recurrence. He stated
that although the cause of appellant’s diagnoses can be multifactorial, it is “my feeling that
[appellant’s] job as a carrier has most likely been the aggravating cause of the symptoms that he
has.” Dr. McCarron uses general terms and describes repetitive general movements required by
appellant’s letter carrier job. Additionally, in his statement of July 5, 2013, he indicated that he
had treated appellant for 20 years and listed job duties of driving with one hand which stresses
the shoulders, gripping bundles which can strain the hands and the general duties of reaching,
pushing, pulling to deliver mail.
Dr. McCarron did not provide adequate bridging evidence since 2004 necessary to show
a spontaneous worsening of the accepted conditions. Rather, he correlated in general terms,
appellant’s current upper extremity conditions with his letter carrier duties.9 Dr. McCarron did
not fully describe the mechanism of injury with the requisite rationale; rather, he provided a
7

Ronald A. Eldridge, 53 ECAB 218 (2001).

8

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

9

J.H., Docket No. 14-775 (issues July 14, 2014).

6

general opinion on causation.10 Further, in his note of June 15, 2012, he stated that there was no
recurrent date that would apply in this case.
The Board also notes that, while bilateral CTS, bilateral shoulder impingements and left
elbow lateral epicondylitis were accepted by OWCP as work-related conditions, the additional
conditions of bilateral rotator cuff tear, bilateral shoulder joints arthrosis, bilateral osteoarthritis
small joints of hands, flexion contractures of both wrists and right lateral epicondylitis have not
been accepted. Dr. McCarron’s reports fail to identify which of these conditions caused
appellant’s disabilities beginning June 13, 2012 and whether, or how, these additional conditions
are causally related to his accepted work-related disability. As noted in OWCP’s July 30, 2013
decision, if appellant is attributing his newly diagnosed medical conditions to an occupational
injury produced by his work environment over a period longer than a single workday or shift, he
may consider filing a new claim.11
The Board finds that appellant has not established that he sustained a recurrence of
disability. In the instant case, appellant has failed to submit a sufficiently rationalized, probative
medical report which relates his claimed recurrence of disability for work as of June 13, 2012 to
his accepted conditions. For this reason, he has not discharged his burden of proof to establish a
recurrence of disability as a result of his accepted employment condition.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability on June 13,
2012 due to his accepted employment-related injuries.

10

Albert C. Brown, 52 ECAB 152 (2000) (medical conclusions was updated by rationale are diminished probative
value).
11

A traumatic injury means a condition of the body caused by a specific event or incident or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).

7

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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