United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Emeryville, CA, Employer
_________________________________________

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Appearances:
Denise Eaton-May, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 18-1058 & 18-1224
Issued: November 21, 2019

Case Submitted on the Record

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

JURISDICTION
On May 1, 2018 appellant, through counsel, filed a timely appeal from a November 2, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). On May 24, 2018
appellant, through counsel, filed a timely appeal from a December 4, 2017 OWCP merit decision.
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.
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5 U.S.C. § 8101 et seq.

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The Board notes that, following the issuance of the December 4, 2017 merit decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability commencing October 25, 2014 causally related to her accepted September 3, 2014
employment injury; and (2) whether OWCP has met its burden of proof to rescind its acceptance
of appellant’s claim for aggravation of right shoulder joint instability.
FACTUAL HISTORY
On September 12, 2014 appellant, then a 22-year-old postal support employee window
clerk, filed a traumatic injury claim (Form CA-1) alleging that on September 3, 2014 she
developed ligament damage in her right arm as a result of lifting and throwing parcels of mail
throughout the week while in the performance of duty. She claimed that at the end of the day, on
the date of injury, she felt her arm pop out of her shoulder. On the reverse side of the claim form
and by letter dated September 25, 2014, appellant’s immediate supervisor controverted her claim
contending that she had not timely reported her alleged injury and that her injury was due to both
a nonwork-related 2013 motor vehicle accident and a nonwork-related bilateral shoulder personal
injury sustained on August 7, 2014.
He indicated that appellant stopped work on
September 4, 2014.
In support of her claim, appellant submitted medical evidence, including work status
reports dated August 7 and September 8, 2014 from Dr. John F. Cummins, a Board-certified
orthopedic surgeon. Dr. Cummins placed her off work from August 7 through 21, and
September 8 through 26, 2014. He noted that appellant had bilateral shoulder injuries and that she
was unable to perform any work involving the use of her upper extremity.
In a September 25, 2014 report, Dr. Lan Thi Linh Nguyen, an internist, noted that appellant
sustained an injury on September 3, 2014 while lifting boxes. He examined her, diagnosed
instability of the right shoulder joint, and indicated that she sustained a right shoulder subluxation
in August 2014 during a physical altercation. Dr. Nguyen related that, during her initial visit,
appellant had not fully explained that her right shoulder had subluxed, but he indicated that it was
reported in a September 4, 2014 note. He released her to modified-duty work as of the date of his
examination.
OWCP also received a September 25, 2014 report from Keith M. Thibault, a nurse
practitioner, who diagnosed instability of the right shoulder joint and placed appellant on modified
activity at work and home through October 21, 2014.
In a letter dated September 30, 2014, appellant’s supervisor continued to challenge her
claim. He asserted that appellant had not reported to him that she sustained an injury at work, or
the time or location of the injury. Appellant had previously mentioned that she had a pin inserted
into her shoulder/arm area and he believed that this was why she had pain in that area.
In a development letter dated October 1, 2014, OWCP advised appellant of the deficiencies
of her claim. It requested additional factual and medical evidence and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to respond.
OWCP received additional medical evidence. The reports provided a diagnosis of
preexisting instability of the right shoulder joint, a request for authorization for right shoulder
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surgery to be performed on November 23, 2014, and opined that her diagnosed condition was a
nonindustrial condition that had been aggravated by her employment activities. Appellant was
permitted to perform modified-duty work with restrictions from October 31 through
November 27, 2014.
In a September 16, 2014 letter, a customer service employing establishment manager
further challenged appellant’s claim for compensation, contending that her claimed injury was
caused by an April 17, 2013 nonwork-related car accident. He noted that appellant was off work
for intermittent periods due to nonwork-related conditions until September 8, 2014 when she
stopped work. The manager further contended that the September 3, 2014 alleged work incident
did not occur as alleged, as clocking records showed that she was not lifting and throwing parcels,
but was working at the finance window all day for eight hours on that day.
On October 21, 2014 appellant responded to OWCP’s development questionnaire. She
described the work duties she performed upon her return to work from maternity leave that she
believed contributed to her claimed injury. Appellant noted her prior nonwork-related injuries
which included a left shoulder injury on March 16, 2013 as a result of a motor vehicle accident for
which she underwent surgery on April 23, 2013. She also sustained another left shoulder injury
on August 4, 2014 due to an altercation.
In a report dated September 4, 2014, Dr. Tyronda S. Elliott, a resident physician, noted a
history that on September 3, 2014 appellant experienced shoulder problems. She examined
appellant and diagnosed right shoulder joint pain.
In a treating physician’s progress report dated October 31, 2014, Dr. Nguyen reiterated his
prior diagnosis of instability of the right shoulder joint and appellant’s history of a right shoulder
subluxation that occurred in August 2014 during a physical altercation. He opined that the
diagnosed right shoulder condition was a nonindustrial condition and placed appellant on modified
activity at work and home through November 27, 2014. Dr. Nguyen maintained that, but for her
work duties as a window clerk, her preexisting condition would not have become disabling or
needed the requested surgical treatment. He also noted that, although modified duties had been
recommended, appellant reported that she was not working because the employing establishment
was unable to accommodate her work restrictions. Dr. Nguyen advised that if modiﬁed activity
was not accommodated by the employing establishment, then she was considered temporarily
totally disabled from her regular work for the designated time.
On November 7, 2014 OWCP accepted appellant’s claim for aggravation of right shoulder
joint instability.
On November 18, 2014 appellant filed a Form CA-7 claim for compensation for leave
without pay (LWOP) for the period October 25 to November 14, 2014.
On November 28, 2014 appellant filed an additional CA-7 form for LWOP for the period
November 15 to 28, 2014.
In a development letter dated December 9, 2014, OWCP requested additional medical
evidence establishing appellant’s disability from work during the period claimed. Appellant was
advised to submit a report from her physician which explained why she had not returned to work
even with clear work restrictions and how this was medically necessary and connected to her
September 3, 2014 work-related injury. OWCP related that if, however, the only reason she did
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not return to work was due to her employing establishment’s inability to accommodate her work
restrictions then the employing establishment should submit written confirmation detailing the
exact period that was not accommodated. OWCP afforded appellant 30 days to respond.
Additional medical evidence was received from Dr. Nguyen. In a report dated
December 12, 2014, Dr. Nguyen continued to diagnose instability of right shoulder joint and to
advise that appellant was capable of performing modified activity at work and home through
January 7, 2015. He also continued to note appellant’s history of a right shoulder dislocation due
to the August 2014 altercation and left shoulder joint instability for which she was status post 2013
dislocation surgery. Dr. Nguyen opined that her current medical condition, more likely than not,
was not caused or aggravated by factors of her employment. He related that his opinion was based
on appellant’s underlying and preexisting medical condition, shoulder joint instability, and
mechanism of injury, lifting 10-pound boxes.
Dr. Cummins, in a postoperative follow-up report dated December 1, 2014, noted
examination findings and provided an assessment of shoulder trauma/instability.
Appellant continued to file Form CA-7 claims for compensation for LWOP for the period
November 29, 2014 to January 16, 2015 and submitted additional medical evidence from
Dr. Cummins and Dr. Nguyen. In a work status report dated November 13, 2014, Dr. Cummins
placed appellant on modified activities at home and work from November 22 through 24, 2014.
He advised that she could return to full-capacity work on November 25, 2014.
In a work status report dated October 2, 2014, Dr. Nguyen placed appellant on modified
activity at work and home from October 21 through November 21, 2014. He again advised that if
modiﬁed activity was not accommodated by the employing establishment then appellant was
temporarily totally disabled from her regular work for the designated time and a separate off work
order was not required.
Dr. Michael E. Hebrard, a Board-certified physiatrist, noted in a January 6, 2015 report
appellant’s repetitive work duties and history of the accepted September 3, 2014 employment
injury, also noting that she last worked on September 3, 2014. He diagnosed adhesive capsulitis,
bicipital tenosynovitis, internal derangement, and history of instability of the right shoulder.
Dr. Hebrard opined that appellant’s work-related injury contributed to her disabling condition and
resultant surgery. He further opined that she was totally disabled since she was unable to perform
her repetitive work duties.
OWCP, by decision dated January 26, 2015, denied appellant’s claims for compensation
for LWOP commencing October 25, 2014. It found that she had not submitted sufficient medical
evidence to establish that she was totally disabled from work, during the period claimed, causally
related to her September 3, 2014 employment injury.
On February 6, 2015 appellant filed an additional Form CA-7 claim for LWOP
compensation from January 17 to February 11, 2015. In support of her claim, she submitted a
letter dated January 6, 2015 in which Dr. Hebrard confirmed that she was temporarily totally
disabled. Dr. Hebrard advised that appellant was unable to perform her regular job and placed her
off work through February 11, 2015.
On February 25, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative regarding the January 26, 2015 decision.
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Appellant continued to file Form CA-7 claims for LWOP compensation from March 7 to
May 29, 2015.
OWCP received additional medical evidence dated February 11 to September 14, 2015
from Dr. Hebrard who continued to treat appellant. Dr. Hebrard agreed with the diagnostic
findings of a February 7, 2015 right shoulder magnetic resonance imaging (MRI) scan which
demonstrated signiﬁcant glenohumeral capsulitis and a modest rotator cuff tendinitis or strain. He
noted that she also had an enthesopathic cyst at the infraspinatus and subscapularis attachment.
Dr. Hebrard diagnosed subluxation, frozen shoulder, adhesive capsulitis, rotator cuff
syndrome/bursitis, and derangement of the right shoulder, as well as rotator cuff syndrome and
bursitis of the left shoulder. He opined that appellant’s September 3, 2014 employment injury
caused the diagnosed conditions, an aggravation of her underlying preexisting condition, and
resultant right shoulder surgery. Dr. Hebrard placed her off work through April 13, 2015 and on
May 26, 2015 released her to modified work with restrictions, five hours a day until her next clinic
visit. He reiterated that if these restrictions could not be accommodated by her employing
establishment, then she was temporarily totally disabled. Dr. Hebrard subsequently found that
appellant was temporarily totally disabled and placed her off work from June 19 through 22, 2015.
He noted that she could work four hours a day upon her return to work with her previous
restrictions on June 22, 2015. Dr. Hebrard later determined on August 17, 2015 that appellant was
again temporarily totally disabled until her next appointment or diagnostic testing.
Dr. Cummins, in a work status report dated November 13, 2014, placed appellant off work
from November 24 through December 16, 2014 and advised that she could perform modified
activity at home and work from December 17, 2014 through March 24, 2015. He determined that
she could return to full-duty work on March 25, 2015.
By decision dated October 27, 2015, an OWCP hearing representative set aside the
January 26, 2015 decision and remanded the case to OWCP for further development of the medical
evidence. He found that while Dr. Hebrard’s reports were not adequately rationalized, they were
sufficient to warrant further development of the issue of whether appellant’s total disability
commencing October 25, 2014 and her resultant November 2014 right shoulder surgery were due
to her accepted September 3, 2014 employment injury. The hearing representative remanded the
case for OWCP to refer appellant for a second opinion examination.
On November 27, 2015 OWCP referred appellant, together with a statement of accepted
facts (SOAF), the medical record, and a set of questions, to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion examination. In a January 4, 2016 report,
Dr. Swartz reviewed the SOAF and medical record, and noted a history of the September 3, 2014
employment injury. He also noted that appellant denied having prior problems with her right
shoulder, but had problems with her left shoulder. Dr. Swartz reported examination findings. He
advised that appellant had preexisting cystic degeneration at the humeral head of the cuff insertion
of the right shoulder. Dr. Swartz noted, however, that this did not appear to be a finding that
rendered her susceptible to instability or a dislocation. He referenced appellant’s medical records,
including Dr. Cummins’ November 25, 2014 operative report, which indicated that appellant had
a Bankart lesion in the anterior capsular labral structures, a preexisting condition, that rendered
her susceptible to dislocation. Dr. Swartz also noted Mr. Thibault’s September 25, 2014 report
and Dr. Elliott’s September 4, 2014 report, which documented that her right shoulder subluxed
during a physical altercation which occurred two weeks prior to her accepted September 3, 2014
employment injury. He advised that appellant’s right shoulder instability was a nonindustrial or
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preexisting condition related to the physical altercation that took place two weeks prior to her
September 3, 2014 date of injury and resulted in right shoulder subluxation as documented in her
medical records. Despite his opinion on causal relationship, Dr. Swartz noted that it would be
helpful to review appellant’s medical records dating 5 to 10 years prior to her September 3, 2014
date of injury as she had a history of right and left shoulder dislocations. He advised that, based
on the medical information available at that time, the temporary aggravation of appellant’s current
right shoulder instability ceased on that day. Dr. Swartz related that the temporary aggravation
involved work-related disability and treatment such as, surgery to correct the instability. He
indicated that appellant’s November 2014 right shoulder surgery was appropriate treatment for her
September 3, 2014 employment injury.
In a letter dated February 23, 2016, OWCP requested that appellant submit medical records
from 5 to 10 years prior to the filing of her claim. On May 22, 2017 it received numerous medical
records.
In a letter dated July 10, 2017, OWCP referred appellant for a second examination with
Dr. Swartz. It provided Dr. Swartz with an updated SOAF, the medical record, and a series of
questions.
On October 18, 2017 Dr. Swartz reviewed the medical evidence of record. He did not
examine appellant. Dr. Swartz referenced his prior findings from the January 4, 2016 examination
and his diagnosis of right shoulder adhesive capsulitis. He noted that appellant’s nonindustrial
preexisting condition of instability and dislocation of the right shoulder, resulting in shoulder
surgery, were due to the nonindustrial injury of August 5, 2014, and were unrelated to the claim
of injury on September 3, 2014. Dr. Swartz further noted that all treatment received subsequent
to September 3, 2014 was unrelated to her claim for an industrial injury and employment at the
employing establishment, and would be related only to the August 5, 2014 assault which caused a
dislocated right shoulder. He indicated that appellant’s right shoulder conditions included cystic
degeneration of the humeral head at the cuff insertion and a Bankart lesion of the anterior capsular
labral structures. Dr. Swartz related that these conditions reflected changes in the right shoulder
that destabilized the shoulder and rendered appellant susceptible to dislocation, which occurred on
August 5, 2014. He advised that she did not sustain a dislocated right shoulder on
September 3, 2014. Dr. Swartz further advised that the findings of Dr. Cummins’ November 2014
surgery were unrelated to the claim of injury on September 3, 2014 and related only to the
nonindustrial assault injury of August 5, 2014. He maintained that all of appellant’s diagnosed
conditions were related to the nonindustrial August 5, 2014 assault. In addition, Dr. Swartz
maintained that there was no disability caused by the August 5, 2014 injury as appellant reported
that she “self-reduced” her shoulder and apparently went back to work fairly soon after this
incident and performed her regular job on September 3, 2014. He related that her time off work
and the treatment she received after September 3, 2014, including the November 2014 right
shoulder surgery, were not due to an injury on that day, but due to the August 5, 2014 incident.
Dr. Swartz concluded that no medical treatment was necessary for the claimed September 3, 2014
employment injury. There was also no physical limitations, restrictions, or disability related to the
claimed injury.
OWCP, by decision dated November 2, 2017, again denied appellant’s claim for
compensation for LWOP commencing October 25, 2014 and authorization for her November 25,
2014 right shoulder surgery. It found that Dr. Swartz’s October 18, 2017 report represented the

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weight of the medical evidence and established that she was not disabled during the claimed period
as a result of her accepted September 3, 2014 employment injury.
In a November 3, 2017 notice, OWCP advised appellant that it proposed to rescind its
acceptance of her claim for aggravation of right shoulder joint instability based on its error. It
found that the factual evidence of record failed to establish that the employment injury occurred
as alleged, noting that she was injured while off duty on August 5, 2014. Further, OWCP noted
that Dr. Swartz’s opinion was well rationalized and established that appellant’s right shoulder
instability and dislocation were caused by the nonwork-related August 5, 2014 incident. It
afforded her 30 days to submit evidence and argument challenging the proposed rescission action.
Appellant, through counsel, responded by letter dated December 2, 2017 disagreeing with
the proposed rescission of the acceptance of appellant’s claim.
By decision dated December 4, 2017, OWCP rescinded acceptance of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5
Under FECA, the term disability means “the incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of injury.”6 The question of whether an
employee is disabled from work is an issue that must be resolved by competent medical evidence.7
The employee is responsible for providing sufficient medical evidence to justify payment of any
compensation sought.8
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.9 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify his or her disability and entitlement to
compensation.10

4

Supra note 3.

5
See C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton,
40 ECAB 1143 (1989).
6

20 C.F.R. § 10.5(f).

7

S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

8

Id.; see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

9

See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
10

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability,
commencing October 25, 2014, causally related to her accepted September 3, 2014 employment
injury.
In support of her claim for total disability commencing October 25, 2014, appellant
submitted several medical reports from Dr. Cummins. In his reports, Dr. Cummins provided an
assessment of right shoulder trauma/instability. He opined that appellant was totally disabled from
work during the periods August 7 to 21 and September 8 to 26, 2014. However, these reports are
of limited probative value in addressing appellant’s claimed period of disability commencing
October 25, 2014 as they occur prior to the alleged period and do not specifically address or
attribute the period of claimed disability to the accepted condition.11 Evidence that does not
address appellant’s accepted conditions and dates of disability is insufficient to establish her
claim.12 Moreover, while Dr. Cummins subsequently opined that appellant was totally disabled
from work from November 24 to December 16, 2014, he did not explain with sufficient rationale
as to how her inability to work was due to her accepted September 3, 2014 right shoulder injury,
his opinion is of limited probative value and thus his report is insufficient to establish the claimed
period of disability.13
Dr. Nguyen’s October 31 and December 12, 2014 reports did not relate appellant’s partial
disability from work during the period October 31 through November 27, 2014 and December 12,
2014 through January 7, 2015 or her diagnosis of right shoulder joint instability to her
September 3, 2014 employment-related right shoulder injury.14 He noted that it was more likely
than not that her diagnosed right shoulder condition was not caused or aggravated by factors of
her employment. The Board finds that Dr. Nguyen’s reports are therefore not based on a complete
and accurate factual background and are of diminished probative value.15 Moreover, his remaining
September 25, 2014 report is insufficient to establish disability as it predates and does not address
the claimed period of disability.16 Likewise, Dr. Elliott’s September 4, 2014 report predates the
claimed period of disability.17
Second opinion physician Dr. Swartz, in his January 4, 2016 and October 18, 2017 reports,
maintained that there was no disability caused by the August 5, 2014 injury as appellant reported
that she apparently went back to work fairly soon after this incident and performed her regular job
on September 3, 2014. He related that her time off work and the treatment she received after
September 3, 2014, including the November 2014 right shoulder surgery, were not due to an injury
on that day, but due to the August 5, 2014 incident. Dr. Swartz concluded that no medical
11

D.J., Docket No. 18-0200 (issued August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).

12

T.L., supra note 10.

13

T.H., Docket No. 19-0436 (issued August 13, 2019); C.B., Docket No. 18-0040 (issued May 7, 2019).

14

Id.

15

S.M., Docket No. 16-1142 (issued March 15, 2017); J.C., Docket No. 07-1246 (issued December 13, 2007).

16

Supra note 11.

17

Id.

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treatment was necessary for the claimed September 3, 2014 employment injury. There was also
no physical limitations, restrictions, or disability related to the claimed injury. As Dr. Swartz
reviewed the medical record and supported his conclusion with medical rationale, the Board finds
that his report represents the weight of the evidence regarding appellant’s claim for total disability.
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period commencing October 25, 2014 due to her accepted right shoulder
condition, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
OWCP may reopen a claim at any time on its own motion and may modify, rescind,
decrease, or increase compensation previously awarded, or award compensation previously
denied.18 Once OWCP accepts a claim, it has the burden of justifying termination or modification
of benefits.19 This burden applies even where OWCP later decides that it erroneously accepted a
claim.20 OWCP must provide a clear rationale for rescinding acceptance of a claim.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to rescind its acceptance of
appellant’s claim for aggravation of right shoulder joint instability.
Second opinion physician Dr. Swartz provided rationalized medical evidence establishing
that appellant did not sustain an aggravation of right shoulder joint instability on
September 3, 2014. In his January 4, 2016 and October 18, 2017 second opinion reports, he found
that appellant’s right shoulder instability and dislocation, and resultant November 25, 2014 surgery
were causally related to her August 5, 2014 nonwork-related domestic violence incident.
Dr. Swartz reviewed the medical record, including numerous medical records which documented
the August 5, 2014 incident. He explained that appellant had cystic degeneration of the humeral
head at the cuff insertion and a Bankart lesion of the anterior capsular labral structures of the right
shoulder, which demonstrated changes that destabilized the shoulder and rendered her susceptible
to dislocation, which occurred on August 5, 2014.22 Accordingly, OWCP’s initial acceptance of
appellant’s claim was in error.
On appeal counsel contends that OWCP’s December 4, 2017 decision erroneously
rescinded acceptance of appellant’s claim as it lacks sufficient legal basis, citing the Board’s
18

20 C.F.R. § 10.610; 5 U.S.C. § 8128(a).

19

See M.B., Docket No. 17-0688 (issued March 15, 2018); Delphia Y. Jackson, 55 ECAB 373, 376 (2004).

20

Id.

21

Id.

22

J.F., Docket No. 17-0288 (issued May 23, 2017).

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holding in the case of Roseanna Brennan.23 In that case, the Board found that OWCP improperly
rescinded acceptance of appellant’s recurrence of disability because it had not identified new
evidence, legal arguments, or rationale to justify its rescission of appellant’s recurrence of
disability on the basis that the acceptance was erroneous. In the instant case, however, OWCP
presented new evidence, by way of the voluminous Kaiser Permanente medical records and
Dr. Swartz’s October 18, 2017 report, regarding appellant’s claimed September 3, 2014 right
shoulder injury as to cast serious doubt upon the validity of the claim. In its December 4, 2017
decision, it explained how this new evidence established that appellant had not sustained a right
shoulder injury at work on September 3, 2014. OWCP presented sufficient new evidence and
argument to justify the rescission of its acceptance of appellant’s claim for aggravation of right
shoulder joint instability.
Counsel further contends on appeal that Dr. Swartz’s opinion is not entitled to the weight
of the medical evidence as it is inadequate under the law. However, Dr. Swartz reviewed the
medical record and supported his conclusion with medical rationale. Thus, the Board finds that
his report represents the weight of the evidence with regard to the rescission of the accepted claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability,
commencing October 25, 2014, causally related to her accepted September 3, 2014 employment
injury. The Board further finds that OWCP has met its burden of proof to rescind its acceptance
of appellant’s claim for aggravation of right shoulder joint instability.

23

41 ECAB 92 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the December 4 and November 2, 2017 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 21, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN J. PERSHING VA MEDICAL CENTER,
Poplar Bluff, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0008
Issued: March 4, 2022

Case Submitted on the Record

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

On October 2, 2019 appellant filed a timely appeal from a May 16, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-0008.
On January 17, 2019 appellant, then a 47-year-old medical technologist, filed a traumatic
injury claim (Form CA-1) alleging that on January 14, 2019 he had difficulty breathing and
experienced swelling of the brain and body when he was exposed to mold at work while in the
performance of duty. He stopped work on the date of the claimed injury. In support of his claim,
appellant submitted medical evidence. OWCP assigned this claim OWCP File No. xxxxxx215.
Following development of the evidence, OWCP, by decision dated March 1, 2019, denied
appellant’s traumatic injury claim on the factual component because the evidence of record did
not support that the January 14, 2019 exposure occurred as alleged. It concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA. Additionally, OWCP
noted that appellant had filed a prior occupational disease claim (Form CA-2) in OWCP File No.
xxxxxx158 for an injury caused by workplace mold exposure, which would be addressed in a
separate decision. It noted that the alleged employment-related mold exposure in the claim in

OWCP File No. xxxxxx158 and the current claim in OWCP File No. xxxxxx215 occurred over a
period much longer than one shift
On March 19, 2019 appellant requested reconsideration and submitted additional evidence.
He contended that he submitted test results, photographs, and witness statements that were
sufficient to establish that he was exposed to mold at work, as well as medical evidence sufficient
to establish that he had an asthmatic reaction after being exposed to mold.
By decision dated May 16, 2019, under OWCP File No. xxxxxx215, OWCP denied
modification of its March 1, 2019 decision. It again referenced appellant’s claim for mold
exposure under OWCP File No. xxxxx158.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. OWCP’s procedures provide that cases should be administratively combined when
a new injury is reported for an employee who previously filed a claim for a similar injury and
further indicates that the cases should be administratively combined as soon as the need to do so
becomes apparent. 1 The record reflects that appellant filed an occupational disease claim in
OWCP File No. xxxxxx158 and, thereafter, filed the current traumatic injury claim for the same
condition. As both claims involve an asthmatic reaction to the exposure of mold, the claims must
be administratively combined for a full and fair adjudication of appellant’s present claim. This
will allow OWCP to consider all relevant claim files and accompanying evide nce in developing
appellant’s current traumatic injury claim.
The case shall therefore be remanded for OWCP to administratively combine OWCP File
Nos. xxxxxx215 and xxxxxx158. Following this and other such further development as deemed
necessary, it shall issue a de novo decision.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000);
see R.R., Docket No. 20-0911 (issued October 30, 2020); T.M., Docket Nos. 09-1090 and 09-2226 (issued
March 8, 2010).

2

IT IS HEREBY ORDERED THAT the May 16, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 4, 2022
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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

Docket No. 21-1265
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
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 to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

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

2

record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

3

by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides 383-492.

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2017).

16

A.M.A., Guides 477.

4

The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

5

specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Portland, OR, Employer
__________________________________________

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

Docket No. 10-105
Issued: September 27, 2010

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 October 15, 2009 appellant, through counsel, filed a timely appeal from an October 1,
2009 merit decision of the Office of Workers’ Compensation Programs finding that he received
an overpayment of compensation and that he was at fault in its creation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $3,762.82 because it deducted health insurance
premiums for single rather than family coverage from May 13, 2007 through February 14, 2009;
(2) whether he was at fault in creating the overpayment and (3) whether the Office abused its
discretion in requiring recovery of the full amount of the overpayment in a single sum.
FACTUAL HISTORY
This case was previously before the Board. In an October 6, 2008 decision, the Board
affirmed the Office’s December 5, 2007 decision denying authorization for a total disc

arthroscopy.1 The facts of the case as provided in the Board’s prior decision are incorporated
herein by reference.
The Office accepted appellant’s April 28, 2006 traumatic injury claim for temporary
aggravation of a preexisting cervical degenerative disc disease and placed him on the periodic
rolls.2 Appellant signed a health election form requesting family coverage (code 105), effective
July 7, 2006. The record reflects that the Office made deductions from appellant’s compensation
benefits for self-only coverage (code 104) from May 13, 2007 through February 14, 2009, based
on information provided by the employing establishment.
A daily rolls payment worksheet, dated March 6, 2009, indicated that deductions for
health care premiums were taken out under code 104 (for single benefits) instead of code 105
(for family benefits) for the period May 13, 2007 through February 14, 2009, creating an
overpayment of $3,762.82. In letters dated November 7 and 13, 2007, appellant acknowledged
that the Office was withholding a portion of his compensation benefits for health insurance
premiums.
The record contains copies of benefits statements for the period August 5, 2007 through
June 8, 2009, which reflected continuing payments each 28 days. The record also contains
envelopes establishing that the statements were returned to the Office effective August 5, 2007,
due to an insufficient address. The record does not contain a copy of an envelope or benefit
statement returned prior to that date. On January 10, 2008 appellant notified the Office of a
temporary address change to a residence in San Antonio, TX. On May 12, 2008 appellant
notified the Office of a permanent change of his address to a location in Luxembourg.
On March 13, 2009 the Office notified appellant of its preliminary determination that he
had received an overpayment of compensation in the amount of $3,762.82 because it had
deducted health benefit premiums for single coverage rather than family coverage from May 13,
2007 to February 14, 2009. The March 13, 2009 determination was sent to appellant, together
with an overpayment recovery questionnaire, to his address of record in Luxembourg. The
Office informed appellant of its preliminary determination that he was with fault in the creation
of the overpayment as he knew or should have reasonably known the payment he accepted was
incorrect. In an accompanying memorandum, the Office described the calculation of the
overpayment, noting that it had deducted a total of $2,787.66 from his compensation, using
health benefits code 104, during the above-referenced period. Instead, it should have deducted
$6,550.48 in health benefits under code 105 for family coverage. Accordingly, appellant
received an overpayment of $3,762.82. He was instructed to complete and return the
overpayment recovery questionnaire if he disputed the fact or amount of the overpayment or the
finding of fault.3
1

Docket No. 08-855 (issued October 6, 2008).

2

Appellant’s March 1, 2006 traumatic injury claim (File No. xxxxxx600) was accepted for cervical disc
herniation. Appellant was paid wage-loss compensation benefits under File No. xxxxxx600 until May 12, 2007,
when he began receiving benefits under the instant claim. The claims were combined, with the instant claim (File
No. xxxxxx589) serving as the master file.
3

The record reflects that the overpayment recovery questionnaire was scanned into the case file, along with the
preliminary determination of overpayment, on the date it was sent to appellant at his address of record.

2

On March 28, 2009 appellant disagreed with the preliminary overpayment determination
and requested a prerecoupment hearing. He stated that he had not received any benefit
statements charged under the instant claim, suggesting that the omission was due to the fact that
the Office had an incorrect address for him.
During the July 14, 2009 telephonic hearing, appellant disputed the fact and amount of
overpayment. He testified that he never filed a claim on behalf of his spouse during the period in
question because he was unaware that he had family coverage. Appellant contended that
repayment of the overpayment amount would create an undue hardship. He further indicated
that he had not received a copy of the overpayment recovery questionnaire referenced in the
preliminary overpayment determination. The claims examiner stated that he would send
appellant another questionnaire and advised him to provide evidence supporting his financial
situation.
On July 16, 2009 the hearing representative forwarded a copy of an overpayment
recovery questionnaire to appellant at his address of record in Luxembourg. It instructed him to
complete and return the form, together with supporting financial information, within 30 days. In
a memorandum dated August 12, 2009, the hearing representative indicated that the overpayment
recovery questionnaire had been returned. He noted that he was sending another questionnaire to
appellant on that date.
In a memorandum to the file dated September 16, 2009, the hearing representative stated
that he had called the Blue Cross operations center in Washington, DC to determine whether
appellant’s spouse was enrolled on his health insurance policy during the period in question. He
was informed that the spouse was added to the policy effective July 23, 2006, and the code was
changed to 105 on that date. The hearing representative was further advised that the spouse had
utilized the insurance in 2007 and 2008.
By decision dated October 1, 2009, the Office finalized its determination that appellant
had received an overpayment of $3,762.82 for the period May 13, 2007 through
February 13, 2009. It noted that deductions for code 105 should have been made in the amount
of $6,550.48 but that deductions were actually made under code 104 in the amount of $2,787.66,
resulting in an overpayment of $3,762.82. The Office further determined that appellant was at
fault in the creation of the overpayment, as he was aware or should have been aware that the
correct premiums for health insurance were not being deducted. It noted that the specific health
code was listed on the benefit statement issued with every compensation payment. Although
benefit statements after August 5, 2007 were returned to the Office for insufficiency of address,
the record reflects that benefit statements were sent to appellant at his address of record prior to
that time, and there was no evidence that he failed to receive them. The Office found that having
received benefit statements for the period between March and July 2007, appellant should
reasonably have been aware that his health insurance benefits were being incorrectly withheld.
As he was at fault in the creation of the overpayment, he was not entitled to waiver. It found that
the overpayment should be repaid in full, as a payment plan could not be considered due to
appellant’s failure to return the overpayment recovery questionnaire.

3

LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits Program. The regulations of the Office of
Personnel Management (OPM), which administers the Federal Employee Health Benefits
Program, provides guidelines for the registration, enrollment and continuation of enrollment for
federal employees. In this connection, 5 C.F.R. § 890.502(b)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of the
cost of enrollment for every pay period during which the enrollment continues. In
each pay period for which health benefits withholdings or direct premium payments
are not made but during which the enrollment of an employee or annuitant continues,
he or she incurs an indebtedness to the United States in the amount of the proper
employee withholding required for that pay period.”4
In addition, 5 C.F.R. § 890.502(c)(1) provides:
“An agency that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of the title, 5 United States Code, to OPM
for deposit in the Employees Health Benefits Fund.”5
Under applicable OPM regulations, the employee or annuitant is responsible for payment of
the employee’s share of the cost of enrollment.6 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.7 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $3,762.82. Appellant received total disability compensation on the periodic rolls. During the
period May 13, 2007 to February 14, 2009, the Office deducted health insurance premiums at an
incorrect rate. Appellant signed a health election form requesting family coverage (code 105),
effective July 7, 2006. The record reflects that the Office made deductions of $2,787.66 from
appellant’s compensation benefits for self-only coverage (code 104) from May 13, 2007 through
4

5 C.F.R. § 890.502(b)(1).

5

Id. at § 890.502(d).

6

Id. at § 890.502(b)(1).

7

Id. at § 890.502(d).

8

James Lloyd Otte, 48 ECAB 334 (1997).

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February 14, 2009; rather than deductions under code 105 in the amount of $6,550.48 during the
period in question. Based on the underdeduction of health insurance premiums, appellant
received an overpayment of compensation in the amount of $3,762.82 for the period May 13,
2007 to February 14, 2009. The Board will affirm the fact and amount of overpayment.
On appeal, appellant disputed the fact of the overpayment, contending that he did not
have family coverage during the period in question. The record reflects, however, that he had
family coverage from March 13, 2007 through February 14, 2009 and availed himself of the
benefits. Appellant signed a health benefit election form requesting family coverage effective
July 9, 2006. His health insurance carrier confirmed his spouse was enrolled on his health
insurance policy during the period in question; that she was added to the policy effective July 23,
2006; that the code was changed to 105 on that date; and that his spouse utilized the insurance in
2007 and 2008.
Appellant also disputed the amount of the overpayment, contending that the overpayment
calculation included the entire cost of family coverage, with no credit for the amount deducted
for self-only coverage. The record reflects, however, that the Office calculated the overpayment
amount by determining that $6,550.48 should have been deducted from appellant’s
compensation benefits under code 105 during the period in question, but that only $2,787.66 was
deducted under code 104. This underdeduction of premiums resulted in an overpayment of
$3,762.82 to appellant. The Board finds that the Office properly calculated the amount of the
overpayment.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to or the amount of, benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).9
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.10

9

20 C.F.R. § 10.433(a).

10

Id. at § 10.433(b).

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ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the overpayment, thereby
precluding waiver.
The Office found that appellant was at fault because he knew or reasonably should have
known that an incorrect amount for his health insurance premiums was being deducted from his
compensation for the period March 13, 2007 through February 14, 2009. Appellant contends
that he had no way of knowing that he was receiving incorrect payments. The Board disagrees
based upon the evidence of record. Appellant elected family coverage under code 105 to be
effective July 9, 2006 and, therefore had an expectation that deductions for health insurance
premiums would begin under code 105 on that date. Every 28 days appellant received benefit
statements, which itemized deductions and listed the health benefits code (104) such that a
reasonable person would question whether the correct health benefits code and amount was
being used by the Office.
Appellant alleged that he did not receive benefit statements during the overpayment
period. The Board notes that while benefit statements after August 5, 2007 were returned to the
Office for insufficiency of address, the record reflects that benefit statements were sent to
appellant at his address of record prior to that time, and there was no evidence that he failed to
receive them.11 After receiving benefit statements over a period of months between March and
July 2007, appellant should reasonably have been aware that his health insurance benefits were
being incorrectly withheld. Thus, the evidence demonstrates that he accepted a payment which
he knew or should have been expected to know was incorrect. Accordingly, he was at fault in
creating the overpayment and no waiver of the overpayment is possible.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the overpayment
as soon as the error is discovered or his or her attention is called to the same. If no
refund is made, [the Office] shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”12
Section 10.438(a) provides that the individual who received the overpayment is responsible
for providing information about income, expenses and assets as specified by the Office, as this
11

Under the “mailbox rule,” it is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption arises when it
appears from the record that the notice was properly addressed and duly mailed. Michele Lagana, 52 ECAB 187,
189 (2000).
12

20 C.F.R. § 10.441(a).

6

information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of the Act or be against equity and good conscience.13 This information would also be
used to determine the repayment schedule, if necessary.
Office procedures provide that debts shall be collected in one lump sum wherever possible.14
ANALYSIS -- ISSUE 3
The Board finds that the Office did not abuse its discretion in requiring recovery of the
full amount of the overpayment in a single sum.
As appellant was entitled to further compensation payments when the overpayment was
discovered, appellant was obligated to refund the entire amount of the overpayment to the Office
immediately.15 When he failed to do so, the Office was required to decrease later payments of
compensation, minimizing any hardship by considering his financial circumstances.16 Appellant
however, was responsible for providing information about his income, expenses and assets, so
that the Office would be able to determine any possible repayment schedule.17 The Office asked
him to provide financial information to enable it to determine the rate of recovery of the
overpayment in light of the factors noted above. Appellant, however, did not provide the
evidence necessary for the Office to determine whether recovery of the overpayment would
cause him undue financial hardship,18 or to provide a basis for a payment schedule.
Appellant alleged that he never received a copy of the overpayment recovery
questionnaire. The record, however, reflects that he was sent a copy of the questionnaire
contemporaneously with the March 13, 2009 preliminary overpayment determination, which he
admittedly received. The hearing representative forwarded another copy of the questionnaire to
appellant on July 16, 2009. When the document was returned, he promptly forwarded another
copy of the questionnaire to appellant at his address of record on August 12, 2009. Absent
evidence to the contrary, it is presumed that appellant received the overpayment recovery
questionnaire.19 In spite of the hearing representative’s instructions to complete and submit the
13

Id. at § 10.438(a).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(d)(1)(a) (September 1994).
15

See supra note 12 and accompanying text.

16

Id.

17

Id. at § 10.438(a).

18

In establishing the initial collection strategy, the Office must weigh the individual’s income, ordinary and
necessary expenses and assets in a manner similar to the waiver considerations. When an individual fails to provide
requested information on income, expenses and assets, the Office should follow minimum collections guidelines,
which state in general that government claims should be collected in full and that, if an installment plan is accepted,
the installments should be large enough to collect the debt promptly. Gail M. Roe, 47 ECAB 268 (1995); see
Nina D. Newborn, 47 ECAB 132 (1995).
19

See supra note 11.

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questionnaire, together with supporting evidence, appellant submitted no evidence relating to his
financial status. The Board, therefore, finds that the Office did not abuse its discretion in
determining that the overpayment debt of $3,762.82 was payable in full.20
CONCLUSION
The Board finds that the Office properly determined that appellant received a $3,762.82
overpayment of compensation and was at fault in its creation, thereby precluding waiver. The
Board further finds that the Office did not abuse its discretion in requiring recovery of the full
amount of the overpayment in a single sum.
ORDER
IT IS HEREBY ORDERED THAT the October 1, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2010
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

20

See supra note 14 and accompanying text.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF AGRICULTURE,
Ottumwa, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2067
Issued: July 15, 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 10, 2010 appellant filed a timely appeal of a July 15, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration of the merits. As more than 180 days has elapsed between the issuance of
OWCP’s last merit decision of June 5, 2009 and the filing of the appeal on August 10, 2010.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over only the July 15, 2010 nonmerit decision. The Board does not have
jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant alleged errors in OWCP’s determination that he had not established
a recurrence of disability. He contends that his physician did not opine that appellant could
1

5 U.S.C. § 8101 et seq.

perform the duties of a food inspector until he was pressured to do so by OWCP. Appellant
stated that he submitted evidence that he had symptoms of a recurrence when he tried to return to
work. He also contended that the opinion of a physical therapist should be given more weight.
FACTUAL HISTORY
On January 15, 2002 appellant, then a 44-year-old food inspector, filed a traumatic injury
claim alleging that on January 14, 2002 he fell into a head trough and sustained a laceration on
his right little finger, an abrasion on his right forearm and pain in his back, hip and abdomen. On
February 20, 2002 OWCP accepted appellant’s claim for lumbosacral sprain. On June 17, 2002
Dr. John D. Miles, a Board-certified orthopedic surgeon, performed a laminotomy and medial
facetectomy at L3-4 and L4-5 on the left. On August 16, 2002 OWCP expanded the claim to
include acceptance for degenerative disc disease, L3-4 and L4-5 (aggravation).
On
November 13, 2002 Dr. Miles performed a laminotomy and medial facetectomy at L3-4 and L45 on the right. On February 27, 2003 he released appellant to work. Although Dr. Miles did not
believe that appellant could return to work in his capacity as hog inspector, he did believe he
could return to a position that required no repetitive bending, twisting or stooping. Appellant
returned to work as a food inspector (slaughter) on April 20, 2003 with restrictions of no
repetitive bending, no twisting or stooping and frequent lifting limited to 20 to 50 pounds. On
December 3, 2003 OWCP found that this position fairly and reasonably represented his wageearning capacity. However, appellant stopped work on November 25, 2003 claiming total
disability to his back.
On April 6, 2005 appellant underwent an anterior spinal fusion, L3-4, L4-5 with patellar
allograft and bone morphogenic protein. On October 10, 2005 he returned to work, two hours a
day, to be increased periodically to a full day. In a medical report dated February 2, 2006,
Dr. Fuller indicated that appellant tried to return to work but was unable to do so. He indicated
that he provided appellant a work slip to be permanently off work.
Appellant claimed a recurrence of disability beginning February 5, 2006.
By decision dated March 14, 2006, OWCP denied appellant’s claim for a recurrence
because the medical evidence did not establish that disability was related to accepted conditions.
In a March 21, 2006 report, Dr. Fuller noted that appellant returned to the office on
January 3, 2006 and reported that he continued to experience severe pain with working. He
noted that he presently did not believe appellant could return to work and the basis for this
recommendation was that any work seemed to create intolerable pain. Dr. Fuller stated that
appellant should undergo a functional capacity assessment. He also noted that appellant had
high narcotic intake and that, although he endeavored to wean appellant from narcotic use, these
have been provided to him by other physicians. Dr. Fuller noted that the use of narcotics caused
excessive drowsiness and that it would be inadvisable for appellant to operate a motor vehicle or
other heavy equipment. He noted that appellant was unlikely to improve. In a May 1, 2006
work capacity evaluation, Dr. Fuller released appellant to work with restrictions of no lifting
over 10 pounds and no pushing or pulling of over 20 pounds. In a May 10, 2006 report, he
diagnosed lumbago. In a May 16, 2006 report, Dr. Fuller noted that appellant achieved solid
fusion. He reviewed the position of modified food inspector job duties and indicated that this

2

position was well within appellant’s restrictions. In a June 13, 2006 report, Dr. Fuller stated that
appellant told him that the modified food inspector job required a substantial amount of bending,
twisting and sitting or standing in a forward leaning posture with an unsupported back and stated
that these activities are proscribed.
In an August 29, 2006 on-site-job analysis for the position of inspector, Stephen Schill, a
rehabilitation counselor, indicated that the position at the employing establishment involved
occasional standing, no pulling, pushing, lifting, carrying ladders or scaffolds. He noted that it
involved only occasional simple grasping.
In a September 24, 2006 report, Dr. Fuller noted a divergence between the on-site-jobanalysis provided by OWCP and the one provided by appellant. He stated that, based on his
knowledge of this job, he maintained his prior opinion.
OWCP’s March 14, 2006 decision was affirmed by a hearing representative on
December 26, 2006.
On December 2, 2007 appellant filed a request for reconsideration and contended that the
modified position was not within his restrictions based on the medical evidence.
On March 19, 2008 OWCP reviewed appellant’s case on the merits and denied
modification.
On March 18, 2009 appellant filed a request for reconsideration. He, through counsel,
argued that statements from his coworkers, inspectors and an environmental health specialist
support his assertion that he could not perform the position offered by the employing
establishment. Appellant submitted new reports by Mark Blankespoor, a physical therapist,
dated March 17 and 18, 2009, and contended that these reports showed deficiencies in an earlier
rehabilitation counselor’s report, and opined that appellant could not perform the position. He
again contended that the medical evidence, and in particular the reports by Dr. Fuller, support
that he could not perform the duty assignment at the employing establishment. Appellant also
resubmitted multiple items of evidence that had previously been before OWCP when it issued its
prior decisions. These documents included reports by Dr. Fuller and an October 8, 2006 report
by Dr. Paul D. Poncy, an osteopath.
By decision dated June 5, 2009, OWCP denied modification of its earlier decisions.
On April 12, 2010 appellant again requested reconsideration. He contended that he lost
faith in Dr. Fuller and submitted new medical evidence in support of his claim. Appellant also
contended that statements from his colleagues showed that he was unable to perform the duties
of the position. He further contended that there were many day activities he was unable to do
because of pain. Appellant also disagreed with OWCP’s conclusion that as Mr. Blackespoor was
not a physician, his opinion was of no probative value in establishing a recurrence of disability.
Moreover, he pointed out that the Social Security Administration had determined he was totally
disabled and awarded him disability retirement benefits. Appellant contended that he met his
burden of proof to establish a recurrence of disability.

3

In a February 8, 2010 opinion, Dr. David S. Diamant, a Board-certified physiatrist with a
subspecialty in pain medicine, noted that he most recently saw appellant on June 20, 2007. He
noted that he reviewed the medical records supplied by appellant and opined that appellant was
unable to perform the job duties of food inspector on a full-time basis based upon the job
demands and his current medical status. Dr. Diamant noted that the last statement of accepted
facts dated July 10, 2004 stated that the position of food inspector involved lifting and carrying
15 to 44 pounds, repetitive motion of the upper body and limbs and walking and standing eight
hours. He stated that appellant could not perform these duties.
In further support, appellant submitted a March 15, 2010 opinion wherein Dr. Poncy
indicated that he has been appellant’s primary physician since 2006. Dr. Poncy noted that he
reviewed medical evidence and other documents, including the July 10, 2004 statement of
accepted facts mentioned above. He noted that, based on the job description provided by the
employing establishment, there was no way appellant could perform the duties. Dr. Poncy also
noted that with the amount of narcotic pain medication that appellant requires to manage his pain
at a tolerable level it would be extremely unsafe for him to work around machinery or other
objects with moving parts. Accordingly, he opined that there was no way that appellant could
perform the job of poultry food inspector. Dr. Poncy further questioned whether appellant ever
recovered fully enough to perform his duties as a food inspector. However, he opined that, if
appellant did fully recover after his spinal fusion in 2005, then in his opinion, on or before
February 6, 2006 appellant did experience a recurrence of his initial injury of January 14, 2002.
By decision dated July 15, 2010, OWCP denied appellant’s request for reconsideration
without conducting a merit review of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2 its
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 To be entitled to a merit review of an OWCP
decision denying or terminating a benefit, a claimant also must file his or her application for
review within one year of the date of that decision.4 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.5 The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record6 and the submission
2

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. Id. at § 8128(a).
3

20 C.F.R. § 10.606(b)(2)

4

Id. at § 10.607(a).

5

Id. at § 10.607(b).

6

Eugene F. Butler¸ 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980)

4

of evidence or argument which does not address the particular issue involved does not constitute
a basis for reopening a case.7 While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.8
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
Appellant has not shown that OWCP erroneously applied or interpreted a point of law. He has
also failed to advance a relevant legal argument not previously considered by OWCP. In this
regard, appellant’s contentions that the statements by his coworkers showed that he established a
recurrence were already raised and reviewed by OWCP in its prior decisions including the
decision dated March 19, 2008. OWCP also has previously found in its March 19, 2008 opinion
that the vocational rehabilitation specialist, Mr. Schill, visited the plant and accurately observed
the duties of the job appellant was expected to perform. In the June 5, 2009 decision, it noted
that Mr. Schill’s opinion was not given the weight of medical evidence but rather carried the
weight of the evidence in determining the physical requirements of the offered position.
Accordingly, appellant’s contention that the job analysis performed by the vocational counselor
was inaccurate had been raised and reviewed by OWCP previously. His contention that the
opinion of the physical therapist he retained, Mr. Blackespoor, should be given greater weight in
establishing a recurrence is irrelevant as health care providers such as physical therapists are not
physicians under FECA. Thus, a physical therapist is not competent to give a medical opinion.9
The Board notes that decisions by other agencies regarding disability are not binding on
OWCP. The standards for establishing work-related disability under FECA, which governs
OWCP and the Board, are not the same as the standards set for disability retirement or social
security benefits.10
However, the Board finds that the February 8, 2010 report by Dr. Diamant and the
March 15, 2010 report by Dr. Poncy constituted relevant and pertinent new evidence not
previously considered by OWCP. Both of these physicians opined that appellant could not
perform the job duties of a food inspector on a full-time basis due to the effects of his
employment injury. OWCP’s decision denied reconsideration without review on the merit;
however, it noted certain deficiencies in these reports. Dr. Poncy added that it was unsafe for
appellant to operate machinery due to the pain he experienced as he had not fully recovered from
the employment injury. However, the requirements for reopening a claim for merit review do
not include the requirement that a claimant submit all evidence which may be necessary to
discharge his burden of proof.11 If OWCP should determine that the new evidence submitted
7

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

John F. Critz, 44 ECAB 788, 794 (1993).

9

See 5 U.S.C. § 8102(2).

10

Raj B. Thackurdeen, 54 ECAB 396 (2003); P.H., Docket No. 10-981 (issued December 9, 2010).

11

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); D.M., Docket No. 10-1844 (issued May 10, 2011).

5

lacks probative value, it may deny modification of the prior decision, but only after the case has
been reviewed on the merits.12 The case shall be remanded to OWCP to conduct a merit review
of the entire record. After such development as is deemed necessary, OWCP shall issue an
appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 15, 2010 is set aside and remanded for further review of the
merits.
Issued: July 15, 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

12

See Dennis J. Lasanen, 41 ECAB 933 (1990).

6