United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, OMAHA POSTAL
DISTRIBUTION CENTER, Omaha, NE,
Employer
__________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1119
Issued: January 29, 2021

Case Submitted on the Record

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

On May 8, 2020 appellant, through counsel, filed a timely appeal from a November 14,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 20-1119.
On May 4, 2016 appellant, then a 57-year-old mail processing clerk, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a right lower back injury on April 24, 2016 when he
stood upright after sweeping mail on the second to bottom tier of a mail sorting machine while in
the performance of duty.
Appellant has a prior traumatic injury claim regarding the lumbar spine. On June 3, 2015
he filed Form CA-1 alleging that he sustained a low back injury on May 22, 2015 when loading
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.

mail from a nutting cart to a belt while in the performance of duty. OWCP assigned that claim
File No. xxxxxx907. On June 29, 2015 it accepted that claim for right-sided sciatica. OWCP paid
appellant wage-loss compensation, commencing July 11, 2015. On July 24, 2015 it expanded its
acceptance of the claim to include a right-sided L5-S1 disc herniation. Appellant underwent an
OWCP-authorized right L5-S1 lumbar microdiscectomy on September 24, 2015. OWCP paid him
wage-loss compensation through his return to full duty work on January 12, 2016.
In support of his claim in OWCP File No. xxxxxx449, appellant provided reports from
Dr. Douglas J. Long, a Board-certified neurosurgeon, dated from November 17, 2009 through
May 18, 2016, diagnosing a right-sided L5-S1 disc herniation sustained on May 22, 2015, while
at work and a right-sided L4-5 disc herniation sustained on April 24, 2016, while at work.
By decision dated June 24, 2016 in File No. xxxxxx449, OWCP denied appellant’s
traumatic injury claim, finding that the medical evidence of record was insufficient to establish
causal relationship between appellant’s diagnosed conditions and the accepted the April 24, 2016
employment incident.
On June 28, 2016 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearing and Review. A hearing was held on
February 6, 2017. During the hearing, counsel contended that appellant’s claims under OWCP
File Nos. xxxxx449 and xxxxx907 should be doubled, to provide a complete and consistent
medical and factual background for appellant’s claim under File No. xxxxx449. OWCP also
received a July 2, 2016 report by Dr. Long, noting that the accepted April 24, 2016 employment
incident caused a new disc herniation on the right at L4-5 with L5 nerve root displacement.
By decision dated March 28, 2017 in File No. xxxxxx449, OWCP’s hearing representative
affirmed OWCP’s June 24, 2016 decision. He found that Dr. Long did not differentiate between
the effects of the accepted May 22, 2015 lumbar disc displacement and September 24, 2015
surgery accepted under File No. xxxxxx907 and the accepted April 24, 2016 employment incident
under File No. xxxxx449.
On March 20, 2018 appellant, through counsel, requested reconsideration. He submitted a
July 21, 2017 report by Dr. Long, who opined that bending over at work on April 24, 2016
aggravated a preexisting disc herniation at L4-5.
By decision dated June 18, 2018, OWCP denied modification of the March 28, 2017
decision.
On June 17, 2019 appellant, through counsel, again requested reconsideration. He
provided a May 20, 2019 report by Dr. Long, who opined that the April 24, 2016 employment
incident unequivocally caused an acute lumbar pathology with right-sided sciatica.
In an October 10, 2019 letter, OWCP requested that Dr. Long submit a supplemental report
discussing the relationship between the lumbar injury accepted under File No. xxxxx907 and in
the present claim under File No. xxxxx449. It afforded Dr. Long 30 days to submit this evidence.
OWCP did not receive additional evidence from Dr. Long within the period allotted.

2

By decision dated November 14, 2019, OWCP denied modification of its June 18, 2018
decision, as Dr. Long’s May 20, 2019 report did not differentiate between the sequelae of the
lumbar injury accepted under File No. xxxxx907 and the lumbar injury claimed under File No.
xxxxx449.
The Board having duly considered the matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on cross-referencing between files and where two or more
injuries occur to the same part of the body.2 For example, if a new injury case is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the body,
doubling is required.3
In the instant case, appellant is alleging an April 24, 2016 lumbar injury in File No.
xxxxxx449 following an accepted May 22, 2015 lumbar injury and surgery in File No. xxxxxx907.
However, OWCP has not administratively combined the present claim with his prior claim
pertaining to lumbar conditions.
For a full and fair adjudication, the Board finds that the November 14, 2019 decision must
be set aside and this case remanded to OWCP to administratively combine OWCP File No.
xxxxxx449 with OWCP File No.xxxxx907. Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3
Id.; W.W., Docket No. 19-0884 (issued June 16, 2020); see P.B., Docket No. 19-1532 (issued April 30, 2020);
L.H., Docket No. 18-1777 (issued July 2, 2019).

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IT IS HEREBY ORDERED THAT the November 14, 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: January 29, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.J., Appellant
and
NATIONAL AERONAUTICS & SPACE
ADMINISTRATION, SPACEPORT
ENGINEERING & TECHNOLOGY,
KENNEDY SPACE CENTER, FL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1115
Issued: January 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 20, 2008 merit decision denying her claim for continuing
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had residuals
of her accepted employment injuries after October 2, 2004.

FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on October 24, 2006
in which it affirmed the December 15, 2005 and April 26, 2006 decisions of the Office
concerning her entitlement to Office compensation after October 2, 2004.1 The Board found that
the Office properly terminated her compensation effective October 2, 2004 based on the opinion
of Dr. Barry Lotman, a Board-certified orthopedic surgeon who served as an Office referral
physician. Dr. Lotman’s August 12, 2004 report was found to contain a well-rationalized
opinion that appellant no longer had residuals of her accepted employment injuries.2 The Board
also found that the Office properly determined that the medical evidence submitted by appellant
after October 2, 2004 did not show that she had residuals of her employment injuries after that
date. The Board found that a February 13, 2006 report of Dr. Richard E. Gayles, an attending
Board-certified anesthesiologist, did not show that appellant continued to have residuals of her
accepted employment injuries after October 2, 2004. The Board noted that, although Dr. Gayles
stated that appellant had carpal tunnel syndrome, foraminal stenosis and spondylitic cervical
changes related to her accepted employment injuries, he did not provide sufficient medical
rationale in support of this opinion.3 The facts and circumstances of the case up to that point are
set forth in the Board’s prior decision and are incorporated herein by reference.
Appellant asserted that she had residuals of her accepted employment injuries after
October 2, 2004. In a January 10, 2007 report, Dr. Rajbir S. Minhas, an attending orthopedic
surgeon, indicated that appellant presented complaining of pain in her neck and arms. He stated
that the motor and sensory examination of appellant’s neck and arms was unremarkable, but that
she complained of neck pain on examination and exhibited some restricted neck motion.

1

Docket No. 06-1402 (issued October 24, 2006). The Office accepted that, by mid 2003, appellant sustained
bilateral carpal tunnel syndrome, bilateral lateral epicondylitis and aggravation of cervical spondylosis due to typing
on her computer, moving materials and engaging in other repetitive motions at work. It paid her appropriate
compensation for periods of disability. On September 17, 2003 appellant underwent a left carpal tunnel release that
was authorized by the Office. After a period of work stoppage of more than a year, she returned to light-duty work
for the employing establishment in September 2004 for 12 hours per week. Appellant retired from the employing
establishment effective April 1, 2005 on disability retirement.
2

Dr. Lotman stated that examination of appellant’s cervical spine revealed normal cervical lordosis with mild
midline tenderness and slight paraspinous discomfort without associated spasm, but that there was no pain or spasm
in the periscapular musculature, cervical trapezius or anterior cervical triangle. He noted that evaluation of her
upper extremities revealed normal and symmetric strength and sensation and indicated that she exhibited irregular
responses on Tinel’s sign, Phalen’s sign and vibratory sense perception testing that had no known anatomic
explanation. Dr. Lotman concluded that appellant had returned to her preinjury status and diagnosed cervical
spondylosis with symptom magnification noting that there were no physical findings to support this condition but
that diagnostic testing showed a small annular bulge at C6. He did not provide any indication that appellant
continued to have bilateral carpal tunnel syndrome or lateral epicondylitis at the time of his evaluation and his
findings did not otherwise support the existence of these conditions.
3

In a March 14, 2005 report, Dr. Gary Weiss, an attending Board-certified neurologist, indicated that
electromyogram and nerve conduction velocity testing showed that appellant had bilateral carpal tunnel syndrome.
He also diagnosed bulging C5-6 disc with mild preexisting spondylitis, but he did not indicate that any of appellant’s
conditions were related to her previously accepted employment injuries.

2

Dr. Minhas diagnosed degenerative disc disease and herniated disc of the cervical spine, cervical
spondylosis and cervical sprain.4
In an April 16, 2007 deposition obtained by appellant’s attorney, Dr. Gayles stated that
the first time he saw appellant after December 2002 was in July 2003 at which time she chiefly
complained of neck and left shoulder pain. He diagnosed cervical spondylosis, possible cervical
radiculopathy, carpal tunnel syndrome and tendinitis at that time. Dr. Gayles indicated that when
he last examined appellant on August 14, 2006 she had cervical spondylosis, some myofascial
pain related to cervical spondylosis, carpal tunnel syndrome and some thoracic pain.5 He stated
that someone who predominantly worked at a computer terminal with less than ideal body
mechanics, such as appellant, could suffer repetitive strains and aggravate any underlying spinal
conditions. Dr. Gayles posited that appellant’s job duties contributed to the aggravation of her
preexisting cervical spondylosis noting that holding certain postures for extended periods
(including holding arms out while typing) can aggravate underlying spondylosis or mild
degenerative disease. He stated that it was possible to have irritation of the back joints from
holding certain postures or being subjected to certain chronic forces and stated that overuse of
the muscles which hold the neck in certain postures can case cause spasms and chronic
shortening of those muscles as well as pain. Dr. Gayles indicated that if the body passes a
certain injury threshold it might stay in a state of constant injury or pain. He stated that radio
frequency ablation testing from June 2004 showed that appellant neck problems were “probably
caused by perhaps soft tissue but more likely discs” and indicated that her symptoms remained
relatively consistent for about three years between 2003 and 2006. Dr. Gayles concluded that
appellant’s condition when he last saw her in August 2006 was related to the repetitive trauma
which caused her accepted employment injuries. He stated that he did not think that appellant
engaged in symptom magnification during her visits with him and indicated that she could only
perform sedentary work.
The record contains numerous periodic reports, dated between March 2006 and
February 2008, in which Dr. Gayles indicated that appellant reported pain and other symptoms in
her neck and arms. He originally diagnosed cervical spondylosis, residual myofascial pain and
carpal tunnel syndrome. Subsequently, Dr. Gayles did not provide a diagnosis of carpal tunnel
syndrome. In an August 14, 2006 report, he stated that appellant’s physical examination was
unchanged from her prior visit, but he did not provide detailed examination findings. Dr. Gayles
diagnosed cervical spondylosis, residual myofascial pain, carpal tunnel syndrome and thoracic
pain. It does not appear that Dr. Gayles saw appellant between September 2006 and May 2007.6
In a February 20, 2008 decision, the Office found that appellant did not meet her burden
of proof to establish that she had residuals of her accepted employment injuries after

4

Dr. Minhas produced several similar reports through mid 2007.

5

Dr. Gayles also noted in another portion of the deposition that in August 2006 he was “not sure of the status” of
appellant’s carpal tunnel syndrome.
6

Appellant moved to Ohio after the August 14, 2006 visit to Dr. Gayles. She returned to Florida in mid 2007 and
began seeing Dr. Gayles again.

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October 2, 2004. It indicated that the April 16, 2007 deposition of Dr. Gayles did not contain
medical rationale in support of its opinion on causal relationship.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.7 The Office may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.8 After
termination or modification of compensation benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he or she had an employment-related disability which continued after termination of
compensation benefits.9
The Board has held that the fact that a condition manifests itself or worsens during a period
of employment10 or that work activities produce symptoms revelatory of an underlying condition11
does not raise an inference of causal relationship between a claimed condition and employment
factors. The Board has held that a medical opinion not fortified by medical rationale is of little
probative value regarding medical matters.12
ANALYSIS
The Office accepted that, by mid 2003, appellant sustained bilateral carpal tunnel
syndrome, bilateral lateral epicondylitis and aggravation of cervical spondylosis due to typing on
her computer, moving materials and engaging in other repetitive motions at work. After a period
of work stoppage of more than a year, she returned to light-duty work for the employing
establishment in September 2004 for 12 hours per week. Based on the opinion of Dr. Lotman, a
Board-certified orthopedic surgeon who served as an Office referral physician, the Office
terminated appellant’s compensation effective October 2, 2004 on the grounds that she had no
residuals of her accepted employment injury after that date. Appellant retired from the
employing establishment effective April 1, 2005 on disability retirement.
The Board issued a decision on October 24, 2006 in which it found that the Office had
properly terminated appellant’s effective October 2, 2004. After the Office’s September 28,
2004 decision terminating appellant’s compensation effective October 2, 2004, appellant
submitted additional medical evidence contending that she was entitled to compensation after
7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Id.

9

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

10

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

12

See George Randolph Taylor, 6 ECAB 986, 988 (1954).

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October 2, 2004 due to residuals of her employment injuries. The burden shifted to appellant to
establish that she is entitled to compensation after October 2, 2004.13 The Board has reviewed
the additional evidence submitted by appellant and notes that it is not of sufficient probative
value to establish that she had residuals of her employment injuries after October 2, 2004.
In an April 16, 2007 deposition, Dr. Gayles, an attending Board-certified
anesthesiologist, indicated that when he last examined appellant on August 14, 2006 she had
cervical spondylosis, some myofascial pain related to cervical spondylosis, carpal tunnel
syndrome and some thoracic pain.14 He stated that someone who predominantly worked at a
computer terminal with less than ideal body mechanics, such as appellant, could suffer repetitive
strains and aggravate any underlying spinal conditions. Dr. Gayles stated that appellant’s job
duties contributed to the aggravation of her preexisting cervical spondylosis noting that holding
certain postures for extended periods (including holding arms out while typing) can aggravate
underlying spondylosis or mild degenerative disease. He noted that overuse of the muscles
which hold the neck in certain postures can cause spasms and chronic shortening of those
muscles as well as pain and indicated that if the body passes a certain injury threshold it might
stay in a state of constant injury or pain. Dr. Gayles noted that appellant’s symptoms remained
relatively consistent for about three years between 2003 and 2006 and concluded that appellant’s
condition when he last saw her in August 2006 was related to the repetitive trauma which caused
her accepted employment injuries.
This deposition, however, is of limited probative value on the relevant issue of the
present case. Dr. Gayles did not provide adequate medical rationale in support of his conclusion
on causal relationship.15 He did not describe appellant employment injuries in any detail and
explain the medical process through which they continued to cause disability or the need for
medical treatment after October 2, 2004. Although Dr. Gayles discussed the effect of body
mechanics on neck and upper extremity conditions, he did so in the most general terms and did
not explain how the particular type of accepted conditions appellant sustained could have
continued to exist after October 2, 2004. The mere fact that appellant remained symptomatic
after October 2, 2004 would not show that the continuing symptoms were employment related.16
Dr. Gayles did not explain why the carpal tunnel syndrome condition which was found on testing
in March 2005 was related to the condition which was originally accepted.17 Appellant has not
filed a claim for a newly acquired carpal tunnel syndrome condition and the medical evidence

13

See supra note 9 and accompanying text.

14

Dr. Gayles also noted in another portion of the deposition that in August 2006 he was “not sure of the status” of
appellant’s carpal tunnel syndrome. The Board previously found that a February 13, 2006 report of Dr. Gayles did
not show that appellant continued to have residuals of her accepted employment injuries after October 2, 2004.
15

See supra note 12 and accompanying text.

16

See supra notes 10 and 11 and accompanying text.

17

The Board notes that Dr. Gayles did not consistently diagnose carpal tunnel syndrome after August 2006.

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does not support the finding of such a new employment-related condition.18 Dr. Gayles did not
explain why appellant’s cervical and upper extremity problems were not due to the natural
progression of her preexisting degenerative cervical condition or some other nonwork-related
condition.
The record also contains numerous periodic reports, dated between March 2006 and
February 2008, in which Dr. Gayles indicated that appellant reported pain and other symptoms in
her neck and arms. In the earlier of these reports, he generally diagnosed cervical spondylosis,
residual myofascial pain and carpal tunnel syndrome. In the later reports, Dr. Gayles did not
provide a diagnosis of carpal tunnel syndrome. However, Dr. Gayles did not provide any
indication in these reports that the diagnosed conditions were related to appellant’s accepted
injuries. In reports dated between early and mid 2007, Dr. Minhas, an attending orthopedic
surgeon, indicated that appellant presented complaining of pain in her neck and arms and
diagnosed degenerative disc disease and herniated disc of the cervical spine, cervical spondylosis
and cervical sprain. He did not provide any opinion that these conditions were employment
related.
CONCLUSION

The Board finds that appellant did not meet her burden of proof to establish that she had
residuals of her accepted employment injuries after October 2, 2004.

18

Dr. Gayles did not describe the light-duty work that appellant performed for 12 hours per week between
September 2004 and her retirement in April 2005 nor did he provide a clear indication that appellant sustained a new
injury due to these limited duties.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
February 20, 2008 decision is affirmed.
Issued: January 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, New York, NY, Employer
__________________________________________

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Appearances:
Kirk Bigelow, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1398
Issued: March 7, 2012

Case Submitted on the Record

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

JURISDICTION
On May 25, 2011 appellant, through his representative, filed a timely appeal from a
December 7, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied his claim for an employment-related injury. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on March 26, 2010 while in the performance of duty.
On appeal, appellant’s representative contends that appellant was entitled to official time
and was acting in the same capacity as the other attendees who were granted official time. He
also contends that: (1) OWCP denied appellant the right to a representative at the time of the
1

5 U.S.C. § 8101 et seq.

oral hearing; (2) OWCP denied appellant the right to have his representative testify as a witness
at the oral hearing; and (3) OWCP failed to rule on whether appellant’s proffered Exhibit 1, an
August 27, 2010 letter to the employing establishment, was accepted.
FACTUAL HISTORY
On April 16, 2010 appellant, a 63-year-old social insurance representative, filed a
traumatic injury claim (Form CA-1) alleging that at 3:00 p.m. on March 26, 2010 he sustained
injuries to his ribs, lip, hands and head when he tripped and fell on a sidewalk.
By letter dated May 5, 2010, OWCP advised appellant that the information submitted
was insufficient to establish his claim. It requested additional evidence and allotted 30 days for
submission.
On May 12, 2010 the employing establishment controverted appellant’s claim. It stated
that he was not in the performance of duty when the injury occurred. Appellant was on annual
leave and approximately 945 miles away from the place where his last official duty was
performed.
Appellant submitted a narrative statement dated May 21, 2010. His normal tour of duty
was a flex-tour of 8:00 a.m. to 4:30 p.m., Monday through Friday. Appellant attended a union
caucus meeting in Jacksonville, Florida from March 24 to 26, 2010. He would have requested
official time to attend the meeting, however, union officials were allocated a limited amount of
hours and once the allotment was used employees had to take their own leave for official union
duties. On March 26, 2010 appellant was on annual leave. He checked out of the hotel in
Jacksonville at approximately 11:00 a.m. Appellant was unable to get an earlier flight and had to
take an 8:00 p.m. return flight from Jacksonville to New York City. He decided to have lunch in
St. Augustine before the flight. When appellant arrived to have lunch, he fell on a sidewalk after
parking the car. He reported the injury to local management on March 29, 2010 by telephone.
Appellant stated that his representative, who was walking beside him, witnessed the incident. He
noted that a police officer was at the scene and took a report. An emergency vehicle from the
fire department was called and they examined appellant, who was given a cold compress to put
over his swollen mouth which was bleeding.
In a March 28, 2010 emergency room report, appellant was diagnosed with rib contusion
and hand sprain by an unidentified physician.
In an April 1, 2010 report, Dr. Paul Issack, a Board-certified orthopedic surgeon,
diagnosed a minimally displaced fifth metacarpal base fracture and placed appellant in a short
arm thumb spica cast. He reported a history that appellant tripped and fell on a sidewalk on
March 26, 2010 and complained of pain in his right hand over the radial and ulnar borders but
denied any other areas of pain. Dr. Issack stated that appellant had a past medical history of
lumbar injury and foot pain.
In an April 3, 2010 radiological report, Dr. John Matthews, a Board-certified radiologist,
diagnosed a nondisplaced fracture base of the fifth metacarpal. There was no evidence of any
scaphoid fracture.

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In a May 6, 2010 report, Dr. Issack diagnosed right lateral epicondylitis. In another
May 6, 2010 report, he diagnosed healed metacarpal fracture. Dr. Issack advised that appellant
complained of right wrist and elbow pain, but had no pain about the base of the metacarpal.
By decision dated June 14, 2010, OWCP denied appellant’s claim finding that he was not
in the performance of duty at the time of the March 26, 2010 incident. It explained “that since
the purpose of your trip was not to act in a representational capacity, at the time of your injury
you were not in the performance of duty.” OWCP noted that appellant was 945 miles away from
the employing establishment’s premises while on annual leave.
On June 18, 2010 appellant, through his representative, requested an oral hearing before
an OWCP hearing representative.
Appellant submitted an August 27, 2010 letter to the employing establishment. He
requested the employing establishment to correct its controversion. Appellant stated that the
employing establishment was aware that he attended the union caucus meeting on March 26,
2010 and that he had previously depleted his official time allocation and was not able to request
official time to attend the meeting. He contended that because other employees who attended the
meeting were approved for official time by the employing establishment, the nature of the
meeting was official business and the distance away from his regular duty station had no
relevance to whether he was in the performance of duty.
At the October 21, 2010 oral hearing, appellant testified that he had attended the annual
union meeting for the past 17 years and previously received official time. He was paid travel and
per diem by the employing establishment until a new contract began in 2005 which reduced the
union’s official time use and did away with reimbursement of travel and per diem. On
March 26, 2010 appellant was in travel status and paid for the travel, including the plane ticket
and the hotel, himself. He did not request official time because his allotted time had expired. At
the time of the incident, appellant was waiting for his return flight and stopped en route to the
airport for lunch. He requested to file his August 27, 2010 letter to the employing establishment
and an OWCP hearing representative agreed to add it to the case record.
On November 22, 2010 appellant moved to admit his August 27, 2010 letter to the
employing establishment as appellant’s Exhibit 1 and the caucus agenda of March 25, 2010 as
appellant’s Exhibit 2. He also raised objections to his representative not being allowed to
represent him and testify as a witness at the hearing.
By decision dated December 7, 2010, an OWCP hearing representative affirmed the
June 14, 2010 decision. As appellant was not on official time, he was not engaged in any
representational functions “benefiting either a specific employee or his agency,” he was in a
leave status and therefore he was not in the performance of duty at the time of his injury.
LEGAL PRECEDENT
Congress, in providing a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does

3

not attach merely upon the existence of an employee employer relationship.2 Instead, Congress
provided for the payment of compensation for personal injuries sustained while in the
performance of duty. The phrase while in the performance of duty has been interpreted by the
Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
arising out of and in the course of employment. The phrase “course of employment” is
recognized as relating to the work situation and more particularly, relating to elements of time,
place and circumstance.3 In addressing this issue, the Board has stated: In the compensation
field, to occur in the course of employment, in general, an injury must occur: (1) at a time when
the employee may reasonably be said to be engaged in his or her master’s business; (2) at a place
where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.4
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work while going to or coming from work, are not
compensable.5
With respect to whether injuries arising in the course of union activities are related to the
employment, the general rule is that union activities are personal, that attendance at a union
meeting, for example, is exclusively for the personal benefit of the employee and devoid of any
mutual employer-employee benefit.6 Under the procedure manual, OWCP has recognized that
certain representational functions performed by employee representatives benefit both the
employee and the employing establishment.7 With regard to representational functions and when
a person is considered to be on official time, OWCP’s procedure manual provides: “When an
employee claims to have been injured while performing representational functions, an inquiry
should be made to the official superior to determine whether the employee had been granted
‘official time’ or in emergency cases, would have been granted official time if there had been
time to request it. If so, the claimant should be considered to have been in the performance of
duty.”8

2

See Janet M. Abner, 53 ECAB 275, 277-78 (2002).

3

See Annie L. Ivey, 55 ECAB 480 (2004). See also Alan G. Williams, 52 ECAB 180 (2000).

4

Id.

5

See Phyllis A. Sjoberg, 57 ECAB 409 (2006).

6

See Kelly Y. Simpson, 57 ECAB 197 (2005).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (March 2011).

8

Id. at Chapter 2.804.16e; see also Bernard Redmond, 45 ECAB 298 (1994). Chapter 2.804.16c of OWCP’s
procedures defines official time as “time granted to an employee by the agency to perform representational
functions, when the employee would otherwise have been in duty status, without charge to leave or loss of pay.”

4

ANALYSIS
Appellant is an employee with fixed hours and place of work. At the time of injury, he
was en route to the airport the day after an annual union meeting and stopped to have lunch
while in an annual leave status when he sustained an injury. Appellant argued that he was in the
performance of duty as he was doing something incidental to his employment with the
knowledge and approval of the employer, i.e., attending a regularly scheduled union meeting.
He also argued that, although he was not on official time, he was entitled to official time and
acting in the same capacity as the other attendees who had been granted official time and his
attendance at the meeting was in a representational capacity.9
In K.L.,10 the employee injured her left shoulder and neck in an automobile accident. She
stated that she was traveling from the employing establishment to another medical center for a
meeting when her vehicle was struck from behind at a red light. Her supervisor stated that she
was not in the performance of duty at the time of her injury as she was traveling to attend a union
meeting regarding the internal business of the labor organization. There was no evidence that
she planned to engage in any specific representational functions and she did not submit evidence
to establish that any matters on which she met pertained to a representational function. As such,
the Board found that the union meeting was a personal activity unrelated to her federal
employment. Both the employee and her supervisor noted that, based on her union position, she
was entitled to use up to four hours a day of official time. Both agreed, however, that her time
sheet did not reflect that she was on official time at the time of injury and that she was in a
regular duty status when her injury occurred. As the claimant was not on official time, her union
activity was considered to be personal rather than representational and her injury did not arise in
the performance of duty.
In this case, appellant was not on the premises at the time of the injury, but instead was
on the way to an airport to return from Florida to New York. The Board must focus on the
nature of the activities in which he was engaged to determine whether or not they were
reasonably incidental to his employment or whether he was engaged in personal activities
unrelated to his employment. As established in the record, the union meeting which he attended
was for the personal benefit of the employee as a union officer rather than in a representational
capacity as a union steward with a mutual benefit to the union and the employing establishment.
There is no evidence of record that appellant planned to engage in specific representational
functions as a union steward on March 26, 2010. Appellant did not submit evidence to establish
that any matters on which he met pertained to his representational functions. As such, the Board

9

It appears appellant is implying that he was in travel status while in attendance at the union meeting. Under
FECA, an employee on travel status or a temporary-duty assignment or special mission for his employer is in the
performance of duty and therefore under the protection of FECA 24 hours a day with respect to any injury that
results from activities essential or incidental to his special duties. See Ann P. Drennan, 47 ECAB 750 (1996);
Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K. O Connor, 4 ECAB 21 (1950). In this case, as the
Board finds that the employing establishment did not authorize appellant’s attendance in order to perform a
representational function with mutual benefit to the union and the employing establishment, he was not in travel
status and he was not in the performance of duty under the protection of FECA at the time of injury.
10

Docket No. 06-2154 (issued February 8, 2007).

5

finds that he was not acting in a representational capacity at the time of his injury. Therefore, the
union meeting must be considered a personal activity unrelated to his employment.
Appellant noted that he had attended the annual union meeting for the past 17 years and
had previously received official time and was paid travel and per diem; however, in 2005 a new
contract reduced the amount of authorized official time and reimbursement for travel or
per diem. On March 26, 2010 he was on annual leave status and paid for the travel himself.
Appellant had not requested nor been granted official time because his allotted time had expired.
There is no dispute that he was 945 miles away from the place where his last official duty was
performed or that he was in an annual leave status for which he was not compensated at the time
of the injury. As appellant was not on official time, his union activity can reasonably be
considered to be personal rather than representational in nature and his injury therefore did not
occur in the performance of duty.11
There is no evidence that appellant’s injury resulted from any employment-related
factors. Appellant was not in a place he could reasonably be expected to be in furtherance of his
employer’s business. He did not establish that he was performing something incidental to that
business rather than a personal activity unrelated to his job duties or his representational status as
a union official. Appellant’s injury on March 26, 2010 did not occur in the performance of duty.
The Board finds that OWCP properly denied his claim.
On appeal, appellant’s representative contends that OWCP denied appellant the right to a
representative at the time of the oral hearing. Section 10.700 of OWCP’s regulations allow a
claimant to appoint one individual to represent his or her interests but require that the
appointment be made in writing.12 At the time of the October 21, 2010 hearing, however,
appellant had not provided OWCP with written notice of his designation of a representative.
Section 10.617 of OWCP’s regulations allows testimony at oral hearings but does not bind the
hearing representative to common law or statutory rules of evidence and grants broad discretion
as to how to conduct the hearing.13 Mr. Bigelow was not designated as appellant’s representative
at the time of the oral hearing. The Board finds that he was not entitled to represent appellant at
the hearing and the hearing representative did not abuse her discretion in refusing to allow
appellant a representative at the hearing.14 Appellant further contends that OWCP denied him
the right to have his representative testify as a witness at the oral hearing. Under section 10.619
a claimant may request a subpoena, but the decision to grant or deny such a request is within the
discretion of the hearing representative.15 Appellant requested witness testimony from his
representative at the oral hearing. However, he did not demonstrate why oral testimony from the

11

Id.

12

20 C.F.R. § 10.700(a).

13

Id. at § 10.617(c).

14

Id.

15

Id. at § 10.619. See P.L., Docket No. 11-15 (issued August 18, 2011); E.S., Docket No. 09-2019 (issued
July 26, 2010).

6

requested witness was the best way to ascertain the facts.16 Appellant noted that his
representative was with him when the injury occurred. The fact of the March 26, 2010 injury is
not in dispute. As noted, the relevant issue is whether appellant was in the performance of duty
when injured. The Board finds that the hearing representative, acted within her discretion in
denying his request for witness testimony. Appellant’s representative also contends that OWCP
failed to rule on whether appellant’s proffered Exhibit 1, an August 27, 2010 letter to the
employing establishment, was accepted. During the October 21, 2010 oral hearing, appellant
requested to file the August 27, 2010 letter and an OWCP hearing representative agreed to add it
to the case record. On November 22, 2010 he moved to admit his August 27, 2010 letter to the
employing establishment as appellant’s Exhibit 1 and the caucus agenda of March 25, 2010 as
appellant’s Exhibit 2. The Board notes that both documents were added to the case record and
reviewed by an OWCP hearing representative. Therefore, appellant’s evidence was of record
and considered below.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained an
injury on March 26, 2010 while in the performance of duty.

16

Subpoenas are issued for witnesses only where oral testimony is the best way to ascertain the facts. 20 C.F.R.
§ 10.619.

7

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2012
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tiburon, CA, Employer
__________________________________________

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

Docket No. 09-683
Issued: September 28, 2009

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 January 12, 2009 appellant filed a timely appeal from November 6, 2008 schedule
award decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determinations in this
case.
ISSUE
The issue is whether appellant has more than an 11 percent impairment of the right arm
or 8 percent impairment of the left arm, for which she received schedule awards.
On appeal appellant contends that the opinion of Dr. Cynthia H. Goodman, an attending
Board-certified plastic surgeon, who found 40 percent impairment should be credited with the
weight of medical opinion.

FACTUAL HISTORY
On September 13, 2005 appellant, then a 49-year-old letter carrier, injured her left thumb
in the performance of her federal duties.1 She stopped work that day and returned on
September 15, 2005. On December 12, 2005 the Office accepted that appellant sustained
employment-related left trigger finger (acquired) and left radial styloid tenosynovitis. On May 1,
2006 appellant filed a traumatic injury claim, alleging that she smashed her right middle finger
that day in the door of her postal vehicle. On September 28, 2006 Dr. Cynthia Goodman, a
surgeon, performed release of the left first dorsal compartment, left ring finger A1 pulley release,
and right middle trigger finger steroid injection. Following surgery, appellant returned to limited
duty on December 8, 2006 and to full duty on January 3, 2006. On June 7, 2007 Dr. Goodman
performed an open release of bilateral middle trigger fingers. Appellant returned to full-time
modified duty on August 21, 2007.
On February 5, 2008 appellant filed a schedule award claim. In reports dated January 21
and 22, 2008, Dr. Goodman provided bilateral finger and thumb range of motion and grip
strength measurements. She advised that appellant had 40 percent loss of strength in both hands
and no longer had hand or finger pain. The Office referred Dr. Goodman’s reports to an Office
medical adviser. On March 17, 2008 the medical adviser provided an impairment analysis for
both upper extremities in accordance with the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).2 By decision
dated November 6, 2008, the Office granted appellant a schedule award for an 11 percent loss of
use of the right arm, or 34.32 weeks from January 21 to September 17, 2008. In a second
November 6, 2008 schedule award decision, appellant was granted an 8 percent impairment for
loss of use of the left arm, or 24.96 weeks from January 21 to July 13, 2008. The date of
maximum medical improvement was January 21, 2008 for both awards.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 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. The Act, however, 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. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5 Chapter 16

1

Appellant indicated that she had a previous carpal tunnel claim.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001); Joseph
Lawrence, Jr., 53 ECAB 331 (2002).
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

2

of the fifth edition of the A.M.A., Guides provides the framework for assessing upper extremity
impairments.6
Office procedures contemplate that, after obtaining all necessary medical evidence, the
file should be routed to an Office 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.7
ANALYSIS
Appellant received schedule awards for an 11 percent impairment of the right arm and 8
percent impairment of the left arm. On appeal she contends that Dr. Goodman’s 40 percent
rating for loss of strength should be given the weight of medical opinion. The A.M.A., Guides
do not encourage the use of grip strength in an impairment rating because strength measurements
are functional tests influenced by subjective factors that are difficult to control, and the A.M.A.,
Guides, for the most part, is based on anatomic impairment. Thus, the A.M.A., Guides does not
assign a large role to such measurements. Only in rare cases should grip strength be used, and
only when it represents an impairing factor that has not been otherwise considered adequately.8
It is the responsibility of the evaluating physician to explain in writing why a particular method
in determining impairment was chosen.9 Dr. Goodman did not offer any medical reasoning to
explain why she based impairment on appellant’s loss of hand strength. She did not reference
the A.M.A., Guides in her reports of January 21 and 22, 2008. Appellant is not entitled to an
impairment rating for diminished grip strength of either upper extremity because Dr. Goodman’s
impairment evaluation is not in accordance with the A.M.A., Guides and is of limited probative
value.10
In a March 17, 2008 report, the Office medical adviser reviewed Dr. Goodman’s report to
determine the impairments of appellant’s right and left upper extremities in accordance with the
A.M.A., Guides. However, the Office medical adviser’s report does not adequately explain how
the range of motion measurements noted by Dr. Goodman resulted in the noted impairment
ratings.11 Some of the Office medical adviser’s table and figure references do not conform to the
A.M.A., Guides. For example, in her analysis of fingers of the right and left hand, she
referenced Figures 19, 21 and 23 for determining impairments of the metacarpal phalangeal
(MP), proximal interphalangeal (PIP) and distal interphalangeal (DIP) joints. The proper figures
to be used in such analyses are Figures 16-25, 16-23, and 16-21 respectively.12 The Office
6

A.M.A., Guides 433-521.

7

Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); Frantz Ghassan, 57 ECAB 349 (2006).
8

A.M.A., Guides 507; Cerita J. Slusher, 56 ECAB 532 (2005).

9

Tara L. Hein, 56 ECAB 431 (2005).

10

See Carl J. Cleary, 57 ECAB 563 (2006).

11

See V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008).

12

A.M.A., Guides 461, 463, 464.

3

medical adviser also referenced Tables 1 and 2 on pages 18 and 19 of the A.M.A., Guides as the
appropriate tables to be used for converting impairments of the digit to impairments of the hand
and impairments of the hand to the upper extremity. Under the fifth edition of the A.M.A.,
Guides, Tables 16-1 and 16-2, at pages 438 and 439 represent the conversion tables.13 While it is
possible to extrapolate some of Dr. Goodman’s range of motion findings for the thumbs and
fingers to the appropriate figures and tables, enough discrepancies to warrant additional
development of the extent of impairment to appellant’s right and left upper extremities.14
On remand, the Office should further develop the medical evidence and obtain an opinion
on the impairment to appellant’s upper extremities that conforms to the Office’s procedures and
the A.M.A., Guides. Following this and any other further development as deemed necessary, the
Office shall issue an appropriate merit decision on appellant’s schedule award claim.
CONCLUSION
The Board finds this case is not in posture for decision regarding the impairment ratings
for appellant’s right and left upper extremities.

13

Id. at 438, 439.

14

Dr. Goodman found 71 degrees of thumb flexion on the left and 74 degrees on the right. Figure 16-12 provides
that, for 70 to 80 degrees of thumb flexion, the impairment rating can range from 0 to 1 percent, and the Office
medical adviser assessed the rating at 0 percent. A.M.A., Guides 456. For the middle finger PIP joint,
Dr. Goodman found 90 degrees of flexion on the right. Figure 16-23 provides that, for 90 degrees of PIP joint
flexion, the impairment rating is six percent, yet the Office medical adviser found three percent. A.M.A.,
Guides 463. For the small finger PIP joint, Dr. Goodman found 87 degrees of flexion on the left. Figure 16-23
provides that, for 80 to 90 degrees of PIP joint flexion, the impairment rating is a range from 6 to 12 percent, yet the
Office medical adviser found 2 percent. A.M.A., Guides 502. For the small finger DIP joint, Dr. Goodman found
56 degrees of flexion on the right. Figure 16-21 provides that, for 50 to 60 degrees of DIP joint flexion, the
impairment rating is a range from 5 to 10 percent, yet the Office medical adviser found 3 percent. A.M.A.,
Guides 461.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 6, 2008 be vacated and the case remanded to the
Office for further proceedings consistent with this decision of the Board.
Issued: September 28, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.V., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

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Appearances:
Zepuor Parsanian, for the appellant
Office of Solicitor, for the Director

Docket No. 13-2037
Issued: March 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 4, 2013 appellant filed a timely appeal from an April 1, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits on October 1, 2012 on the grounds that she no longer had residuals of the
accepted right upper extremity condition caused by a July 21, 2011 traumatic injury.
On appeal, appellant’s representative asserts that appellant is entitled to compensation
prior to the termination because she was sent home by the employing establishment on
January 26, 2012 because no work was available within her medical limitation.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 28, 2011 appellant, then a 52-year-old mail processing clerk, filed a traumatic
injury claim alleging that on July 21, 2011 her right shoulder, hand, finger and wrist became
painful that day while she was working at the automation machine. She did not stop work. In a
statement dated July 28, 2011, appellant indicated that the injury occurred when she lifted a full
tray of mail.
Dr. Hosea R. Brown, III, a Board-certified internist, provided a first report of injury dated
July 27, 2011. He indicated that appellant, who had been diagnosed with rheumatoid arthritis,
had worked as a postal clerk for 23 years and was seen for complaints of right upper extremity
pain which she attributed to her work duties. Dr. Brown described physical examination findings
and diagnosed right shoulder tendinitis with impingement, right de Quervain tenosynovitis,
permanent aggravation of rheumatoid arthritis and temporary aggravation of unipolar depression.
He described how each diagnosis was caused by lifting and repetitive work duties and opined
that all employment-related activities exacerbated and aggravated appellant’s underlying
rheumatological condition which was manifested as pain and swelling in both hands. Dr. Brown
advised that she should not perform repetitive heavy lifting or overhead reaching with her right
shoulder. On a duty status report dated July 27, 2011, he additionally recommended that
appellant work the day shift.
An August 4, 2011 magnetic resonance imaging (MRI) scan study of the right wrist
demonstrated mild degenerative arthropathy of the wrist joint and a probable small ganglion. An
MRI scan study of the right shoulder that day demonstrated advanced degenerative arthropathy
of the acromioclavicular (AC) joint which could contribute to clinical impingement syndrome,
sequalae of chronic tendinosis or tendinopathy involving the supraspinatus tendon of the rotator
cuff with no evidence of rotator cuff tear and degenerative fibrillation of the superior labrum or
type 1 superior labral tear from anterior to posterior (SLAP) lesion. Dr. Stephen R. Greene, a
general practitioner, provided an August 19, 2011 report in which he indicated that he first saw
appellant on July 28, 2011. He reported that she had a seven-day history of right shoulder pain
that began when she was attempting to lift a 70-pound tray of mail. Dr. Greene provided
physical examination findings and diagnosed shoulder strain, AC joint. He advised that
appellant should restrict her use of the right upper extremity, not climb ladders, avoid aboveshoulder work and not push, pull or lift over five pounds.
In a September 1, 2011 report, Dr. Edward Mittleman, an attending general practitioner,
noted a history that appellant injured her right arm in 2006 due to repeated work activities and
was diagnosed with a cervical spine condition and that in 2009 she had small disc protrusions.
He indicated that pain in the right hand, arm and shoulder was constant, sharp and knife-like and
that she was working four hours of light duty daily. Dr. Mittleman noted his review of medical
records and the August 4, 2011 MRI scan studies. He described findings and diagnosed right
shoulder supraspinatus tendinosis, right shoulder impingement, aggravation of right shoulder AC
arthropathy, right shoulder SLAP lesion, aggravation of right wrist degenerative joint disease,
right wrist ganglion and right wrist de Quervain’s tenosynovitis. Dr. Mittleman noted that
appellant was very small at four feet 10 inches tall and that her job required her to lift things to
about 5 feet which caused her right shoulder conditions and that the repetitive activities of her

2

hands and wrists led to the right wrist condition. He provided work restrictions and
recommended a therapy regimen and that she worhjgk the day shift.
On September 29, 2011 OWCP accepted that on July 21, 2011 appellant sustained a
sprain of the shoulder and upper arm, AC joint. Appellant subsequently submitted an August 22,
2011 duty status report in which Dr. Brown provided work restrictions and recommended that
she work the day shift due to sleep disturbance. An August 30, 2011 upper extremity
electrodiagnostic study was abnormal with regards to the right median motor and sensory nerves,
suggestive of compression neuropathy at or near the wrist consistent with mild-to-moderate
carpal tunnel syndrome.
Cervical radiculopathy and peripheral neuropathy were not
demonstrated.
In a September 2, 2011 report, Dr. Charles Herring, a Board-certified orthopedic surgeon,
noted the history of injury, appellant’s report of job duties and complaints of pain. He
maintained that the additional diagnoses of right shoulder impingement syndrome with
subacromial bursitis, right shoulder acromioclavicular joint arthrosis, right shoulder rotator cuff
tendinopathy, right wrist degenerative arthropathy, right wrist subchondral cyst, right wrist
ganglion cysts and clinical carpal tunnel syndrome also be accepted as work related and
described how her specific job duties caused the physical problems. In reports dated October 21
to November 17, 2011, Dr. Glenn Ford,2 an associate of Dr. Brown, provided examination
findings and additionally diagnosed permanent aggravation of rheumatoid arthritis and
temporary aggravation of unipolar depression. He advised that appellant could work modified
duty and recommended the day shift. In a November 11, 2011 report, Dr. Herring reiterated
Dr. Ford’s findings and conclusions. By report dated December 7, 2011, Dr. Mittleman again
described appellant’s job duties and their effect on her right arm. He also maintained that
additional conditions should be accepted as employment related. On December 15, 2011 a
psychologist advised that appellant was suffering from a severe sleep disturbance, clinical
depression and anxiety. The psychologist recommended that she work the day shift from 12:00
p.m. to 8:00 p.m. or that she work part time from 4:00 p.m. to 8:00 p.m.3
Dr. Ford, Dr. Brown and Dr. Herring continued to submit progress reports in which they
described physical examination findings, appellant’s diagnoses and work restrictions and advised
that she work the day shift.
In February 2012 appellant filed a number of Form CA-7, claims for compensation, for
intermittent periods beginning August 11, 2011. On February 16, 2012 the employing
establishment noted that she was sent home with no work available on January 26, 2012 and that
prior to that she only worked four hours a day because a physician recommended daytime hours.
Appellant continued to submit compensation claims.
In March 2012 OWCP referred appellant to Dr. Steven M. Ma, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a March 29, 2012 report, Dr. Ma noted
his review of the statement of accepted facts, medical record and appellant’s complaints of right
2

Dr. Ford’s credentials could not be ascertained.

3

The signature on the report is illegible.

3

arm pain and numbness. He reported a history that in 2006 and 2009 she missed several months
of work due to right shoulder pain and that she did not claim work injuries. Dr. Ma indicated
that appellant had been working modified duty in a seated position but had not worked since
January 26, 2012 because light duty was no longer available. Neck examination demonstrated
no spasm and no tenderness to palpation. Examination of both shoulders and arms revealed no
obvious atrophy and impingement and apprehension signs were negative. Elbow examination
revealed no specific abnormalities with a negative Tinel’s test at the elbows. Examination of
both hands and wrists revealed no obvious deformities, no swelling and no tenderness to
palpation. Tinel’s, Phalen’s, Finkelstein’s and Allen’s tests were negative. Motor examination
of both upper extremities was rated 5/5 at all locations and sensory examination was intact to
light touch and pinprick. Dr. Ma diagnosed rheumatoid arthritis, not work related; AC right
shoulder sprain; and tenosynovitis of the right wrist. In answer to specific OWCP questions, he
advised that appellant had significant preexisting conditions that were not employment related
including rheumatoid arthritis and that she had prior right shoulder injuries in 2006 and 2009 for
which she received continuous treatment. Dr. Ma related that it was difficult to differentiate
between her right shoulder symptoms regarding the claimed July 21, 2011 injury and her
preexisting conditions, noting that there were no objective findings regarding the July 21, 2011
injury and that while the July 2011 injury may have temporarily aggravated the preexisting
conditions, the aggravation had resolved with no residuals. He opined that any current disability
was due to the 2006 and 2009 injuries and the underlying rheumatoid arthritis and that appellant
had no physical limitations due to any work-related condition. Dr. Ma advised that there was no
reason she could not work eight hours a day with restrictions due to her preexisting conditions,
such that that she limit reaching above the shoulder to four hours daily and not lift more than 10
pounds.
On April 30, 2012 OWCP forwarded Dr. Ma’s report to Dr. Ford for comment. Dr. Ford
did not respond. However, on May 14, 2012 Dr. Brown reviewed and disagreed with Dr. Ma’s
March 29, 2012 report. He reiterated his diagnoses of permanent aggravation of rheumatoid
arthritis, aggravation of right shoulder acromioclavicular arthropathy, right wrist de Quervain’s
tenosynovitis, right shoulder supraspinatus tendinosis, right shoulder impingement and
temporary aggravation of severe depression. Dr. Brown maintained that appellant’s condition
was more of an occupational disease rather than a traumatic injury that occurred on July 21,
2011, stating that her employment activities over 23 years caused cumulative trauma which
aggravated all her medical conditions. In reports dated May 14 and June 18, 2012, he reiterated
his findings and conclusions.
In a letter dated August 31, 2012, OWCP proposed to terminate appellant’s medical
benefits and deny her claims for wage loss. It found that the weight of the medical evidence
rested with the opinion of Dr. Ma, who advised that appellant had no residuals of her accepted
conditions.
In a July 24, 2012 report, received by OWCP on September 18, 2012, Dr. Brown advised
that appellant continued to have right upper extremity discomfort. Physical examination
demonstrated decreased right shoulder range of motion with a positive impingement sign, which
was unchanged from previous examinations. Dr. Brown reiterated his diagnoses and advised
that physical restrictions were as per a duty status report completed that day. In a duty status

4

report dated August 22, 2012, he advised that appellant could work the day shift with physical
restrictions.4
On October 1, 2012 OWCP finalized the termination of benefits effective that day.
Appellant timely requested a hearing and submitted a claim for compensation for the period
August 25 to October 5, 2012.
In progress reports dated August 22 and October 1, 2012, Dr. Brown described
appellant’s physical examination findings, reiterated his diagnoses and advised that her
restrictions were those provided on an accompanying duty status report.5 In reports dated
November 30, 2012, he discussed physical examination findings, reiterated his diagnoses and
provided work restrictions. On December 7, 2012 Dr. Brown indicated that appellant had
experienced a significant increase of symptomatology in the right shoulder area and advised that
her restrictions remained.
At the hearing, held on February 12, 2013, appellant’s representative, a union official,
argued that her 2006 and 2009 injuries were employment related and that the current claim
should be an occupational disease claim. OWCP’s hearing representative indicated that the
instant claim would continue as a traumatic injury claim regarding the July 21, 2011 injury.
Appellant testified that she was not working but would like to return to work. She indicated that
because of her small size she had difficulty performing her job duties and that the 2006 and 2009
injuries occurred when she lifted mail trays. Appellant stated that she did not file workers’
compensation claims because she did not understand the process and took leave. Her
representative indicated that appellant was only claiming compensation from January 26, 2012
when the employing establishment sent her home because no light duty was available, and thus
she was entitled to compensation after that time because her modified duty had been withdrawn.
Following the hearing, appellant submitted a January 21, 2013 report in which
Dr. Mittleman indicated that she could return to modified work that day. In correspondence
dated March 19, 2013, appellant’s representative again asserted that she was entitled to monetary
compensation beginning January 26, 2012.
By decision dated April 1, 2013, OWCP’s hearing representative found that the weight of
the medical evidence rested with the opinion of Dr. Ma and affirmed the October 1, 2012
decision terminating appellant’s compensation benefits. The hearing representative instructed
appellant that she remained entitled to file an occupational disease claim and directed OWCP to
take appropriate action regarding the Form CA-7 claims appellant had filed.

4

The duty status report is somewhat unclear as it seems to indicate weight rather than hourly restrictions for all
activities.
5

The duty status reports referenced by Dr. Brown in his July 24 and October 1, 2012 reports are not found in the
record before the Board.

5

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits on October 1, 2012. OWCP accepted that appellant sustained a sprain of
the right shoulder and arm, AC joint, due to a July 28, 2011 traumatic injury. Appellant filed
claims for partial disability beginning August 11, 2011 and for total disability beginning
January 26, 2012 when she was sent home because no light-duty work was available.
The medical evidence relevant to the October 1, 2012 termination includes the March 29,
2012 second-opinion evaluation by Dr. Ma, who noted his review of the statement of accepted
facts and medical record, and appellant’s complaints of right upper extremity pain and
numbness. Dr. Ma reported a history of periods in 2006 and 2009 when appellant missed several
months of work due to right shoulder pain but did not claim a work injury. He provided
extensive examination findings and advised that she had significant preexisting conditions that
were not work related including rheumatoid arthritis and prior right shoulder injuries in 2006 and
2009 for which she received continuous treatment. Dr. Ma related that the July 21, 2011 injury
may have temporarily aggravated the preexisting conditions but that any aggravation had
resolved with no residuals. He opined that any current disability was due to the 2006 and 2009
injuries and the underlying rheumatoid arthritis and that appellant had no physical limitations
due to any work-related disability. Dr. Ma advised that there was no reason she could not work
eight hours a day and that any restrictions were due to her preexisting conditions.
In numerous reports beginning July 27, 2011, Dr. Brown, an attending internist,
diagnosed right shoulder tendinitis with impingement, right de Quervain tenosynovitis,
permanent aggravation of rheumatoid arthritis and temporary aggravation of unipolar depression.
He described how each diagnosis was caused by lifting and repetitive work duties and opined
that all work-related activities exacerbated and aggravated appellant’s underlying
rheumatological condition which was manifested as pain and swelling in both hands. On
May 14, 2012 Dr. Brown indicated that he had reviewed Dr. Ma’s report and disagreed with his
conclusions. He maintained that appellant had permanent aggravation of rheumatoid arthritis,
aggravation of right shoulder AC arthropathy, right wrist de Quervain’s tenosynovitis, right
shoulder supraspinatus tendinosis, right shoulder impingement and temporary aggravation of
severe depression. Dr. Brown advised that her condition was more of an occupational disease
rather than a traumatic injury that occurred on July 21, 2011, stating that her employment
activities over 23 years caused cumulative trauma which aggravated all her medical conditions.
6

Jaja K. Asaramo, 55 ECAB 200 (2004).

7

Id.

6

He continued to submit reports in which he reiterated his findings and conclusions. Dr. Brown’s
opinion therefore does not support that appellant had residuals of the traumatic injury that
occurred on July 21, 2011 but rather that cumulative trauma over 23 years of job duties caused
the diagnosed conditions. OWCP did not evaluate this claim as an occupational injury. As noted
below, appellant has the right to file a timely occupational disease claim regarding these
assertions.
In reports dated November 30 and December 7, 2012, Dr. Mittleman did not relate his
findings and conclusions to the July 21, 2011 employment injury.
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion are facts, which determine the weight to be given to each individual
report.8 The Board finds that OWCP properly determined that the weight of the medical opinion
evidence rested with the opinion of Dr. Ma who provided a comprehensive report in which he
outlined examination findings and provided a rationalized explanation for his opinion that
appellant had no residuals of the July 21, 2011 employment injury. OWCP therefore met its
burden of proof to terminate appellant’s compensation benefits on October 1, 2012.
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 OWCP met its burden of proof to terminate appellant’s monetary
compensation on October 1, 2012.

8

Michael S. Mina, 57 ECAB 379 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, CARRIER ANNEX,
Paducah, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-637
Issued: July 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 4, 2007 appellant timely appealed the October 4 and December 8, 2006 merit
decisions of the Office of Workers’ Compensation Programs which determined her wage-earning
capacity.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant’s earnings as a modified rural carrier fairly and
reasonably represent her wage-earning capacity; and (2) whether she established a basis for
modification of the Office’s October 4, 2006 wage-earning capacity determination.

1

The record also includes an October 5, 2006 schedule award and an October 24, 2006 finding of overpayment in
the amount of $556.55. Appellant’s counsel has not specifically challenged either of these decisions on appeal.
Accordingly, the Board will not exercise jurisdiction over the October 5 and 24, 2006 decisions.

FACTUAL HISTORY
Appellant, a 45-year-old rural carrier, was delivering mail on January 18, 2006 when she
slipped and fell on an icy sidewalk. She broke her right ankle in the fall and underwent surgery
the next day. The Office accepted the claim for closed bimalleolar fracture of the right ankle.
Appellant received appropriate wage-loss compensation. On April 10, 2006 she returned to
work as a modified rural carrier, with no loss in pay. The position involved answering the
telephone, providing customer assistance, computer data input and filing from a seated position.
At the time, appellant’s physical restrictions included less than 15 minutes of standing and
walking. She was also precluded from climbing, kneeling, bending, stooping, pulling, pushing,
driving or operating machinery. The modified rural carrier position was in keeping with
appellant’s physical limitations. The position also included a lifting limitation of 10 pounds.2
In a report dated June 28, 2006, appellant’s orthopedic surgeon, Dr. Burton N. Stodghill,
advised that appellant had reached maximum medical improvement and that her work
restrictions were permanent. According to Dr. Stodghill, appellant could stand for 20 minutes at
a time, up to 2 hours a day. He imposed identical restrictions with respect to walking.
Dr. Stodghill limited appellant to lifting and carrying no more than 20 pounds, however, she
could push or pull up to 50 pounds. He also indicated that appellant could drive a vehicle for
four hours, but she was still precluded from operating machinery. Additionally, the prior
restrictions of no climbing, kneeling, bending and stooping remained in effect. On August 2,
2006 Dr. Stodghill reiterated his findings regarding appellant’s permanent work restrictions. He
also noted that she “would not be able to perform her complete job.”
As of October 4, 2006 appellant continued to perform the duties of a modified rural
carrier. The employing establishment advised the Office that it would accommodate her
indefinitely.
By decision dated October 4, 2006, the Office found that appellant’s actual earnings as a
modified rural carrier fairly and reasonably represented her wage-earning capacity. The Office
explained that appellant was reemployed on April 10, 2006 with no loss in earning capacity and
she had performed the required job duties for more than two months.
With the assistance of counsel, appellant sought modification of the October 4, 2006
wage-earning capacity determination. Counsel argued that the position appellant had been
performing was not suitable for determining her wage-earning capacity. He enclosed a copy of
the May 9, 2006 limited-duty job offer appellant previously accepted. Counsel further argued
that appellant did not have an actual job, but was assigned odd jobs throughout the course of a
day. He also indicated that she had been assigned various managerial duties, but she was not a
manager. Counsel did, however, acknowledge that appellant worked regularly and was being
paid commensurate with her date-of-injury pay rate.
In a decision dated December 8, 2006, the Office denied modification of the October 4,
2006 wage-earning capacity determination.
2

Appellant’s driving restriction was lifted on April 28, 2006 and on May 9, 2006 the modified rural carrier
position was amended to include one to two hours driving (personally owned vehicle).

2

LEGAL PRECEDENT -- ISSUE 1
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
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.4 Under
section 8115(a) of the Federal Employees’ Compensation Act, wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent the employee’s wage-earning capacity or if the employee has no actual wages, the
wage-earning capacity is determined with due regard to the nature of the injury, the degree of
physical impairment, the employee’s usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect wage-earning capacity in his or her disabled condition.5
Actual wages earned is generally the best measure of wage-earning capacity.6 In the
absence of evidence showing that actual earnings do not fairly and reasonably represent the
injured employee’s wage-earning capacity, such earnings must be accepted as representative of
the individual’s wage-earning capacity.7 A determination regarding whether actual earnings
fairly and reasonably represent wage-earning capacity should be made only after an employee
has worked in a given position for more than 60 days.8
ANALYSIS -- ISSUE 1
Appellant’s modified rural carrier position is in keeping with her permanent work
restrictions as described by Dr. Stodghill. She has worked in this capacity for more than 60 days
and has earned wages equal to or greater than the wages she earned at the time of her January 18,
2006 employment injury. On appeal, counsel does not take issue with appellant’s ability to
perform her assigned duties, nor does he dispute the amount of her current earnings. His primary
challenge to the October 4, 2006 wage-earning capacity determination is that the Office should
not have based its decision on the modified rural carrier position. Counsel argues that the
position is unsuitable because it is not permanent and because it is an odd-lot job.
3

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

4

20 C.F.R. §§ 10.402, 10.403 (2006); see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

5

5 U.S.C. § 8115(a) (2000); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

6

Hayden C. Ross, 55 ECAB 455, 460 (2004).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997).

3

Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include whether: (1) the kind of appointment and tour
of duty are at least equivalent to those of the date-of-injury job; (2) the job is part time or
sporadic in nature; (3) the job is seasonal in an area where year-round employment is available;
and (4) the job is temporary where the claimant’s previous job was permanent.9
Appellant’s modified rural carrier position is not part-time, sporadic, seasonal or
temporary. She is working the same tour of duty and is under the same job classification as she
was on January 18, 2006 when she injured her right ankle. Appellant’s actual wages equal or
exceed the current wages of her date-of-injury position. As to whether her current position is
permanent in nature, the record indicates that the employing establishment assured the Office on
October 4, 2006 that it would accommodate appellant indefinitely. Furthermore, the May 9,
2006 job description does not identify the modified rural carrier position as a temporary
assignment. Counsels only other contention is that the modified rural carrier position is an oddlot job, with varying assignments based on the available tasks at hand. There is no evidence of
record to substantiate counsel’s allegation that the position appellant has regularly performed
since April 10, 2006 is an odd-lot job.10 Accordingly, the Board finds that appellant’s actual
earnings as a modified rural carrier fairly and reasonably represent her wage-earning capacity.
LEGAL PRECEDENT -- ISSUE 2
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 erroneous.11 The burden of proof is on the party
seeking modification of the wage-earning capacity determination.12
ANALYSIS -- ISSUE 2
Appellant does not allege a material change in the nature and extent of her injury-related
condition. She also does not claim to have been retrained or otherwise vocationally rehabilitated.
Thus, the only current basis for modifying the October 4, 2006 wage-earning capacity
determination would be that the original determination was erroneous. In his October 11, 2006
reconsideration request, counsel alleged that appellant did not have a regular job of any sort, but
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (July 1997).
10

Whether a position is odd-lot or make-shift is more commonly addressed in constructed position wage-earning
capacity determinations. See e.g., 50 ECAB 425, 433 (1999). Additionally, it is of particular significance in
determining the applicable rate of pay when a recurrence of disability is claimed. See 20 C.F.R. § 10.5(s); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a) (April 2002). The type of
position and whether it constitutes “regular” federal employment is also relevant when determining if an employee
is entitled to compensation when a light-duty job is eliminated due to downsizing. See 20 C.F.R. § 10.509.
However, none of theses issues are currently before the Board.
11

Tamra McCauley, 51 ECAB 375, 377 (2000).

12

Id.

4

simply odd jobs that were assigned over the course of each day. Counsel did not submit any
evidence to support this allegation nor has he identified any other basis for modifying the
October 4, 2006 wage-earning capacity determination. Consequently, the Office properly denied
modification.
CONCLUSION
Appellant’s actual earnings as a modified rural carrier fairly and reasonably represent her
wage-earning capacity. Furthermore, she has not established a proper basis for modifying the
Office’s October 4, 2006 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5