United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Attleboro, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant
Paul J. Klingenberg, Esq., for the Director

Docket No. 12-1299
Issued: September 16, 2013

Oral Argument June 25, 2013

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On May 23, 2012 appellant, through counsel, filed a timely appeal from a November 30,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award. 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 properly determined the date of maximum medical
improvement for appellant’s schedule award.
On appeal, counsel asserts that OWCP erred by starting the period of the schedule award
on the date of injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before February 8, 2011 appellant, then a 50-year-old letter
carrier, sustained an aggravation of degenerative arthritis of the left hip due to prolonged walking
and carrying in the performance of duty. He continued to work as a letter carrier through
February 28, 2011. The employing establishment noted that, as of February 8, 2011, appellant’s
annual base salary was $55,530.00.
On May 10, 2011 appellant claimed a schedule award. He submitted a May 3, 2011
report from Dr. Byron V. Hartunian, an attending Board-certified orthopedic surgeon, assessing a
51 percent impairment of the left lower extremity due to a Class 4 arthritic impairment,
according to Table 16-4 of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides).2 Dr. Hartunian opined that
appellant reached maximum medical improvement “in May of 2007 at the time the arthritis of
the left hip was first diagnosed. The condition has progressively worsened since then.” He
recommended a left hip arthroplasty.
On August 9, 2011 OWCP requested that an OWCP medical adviser review
Dr. Hartunian’s report to determine the date of maximum medical improvement and the
appropriate percentage of impairment. An OWCP medical adviser submitted an August 22,
2011 report concurring with Dr. Hartunian’s determination of 51 percent impairment of the left
lower extremity. The medical adviser stated that it was “probable that the date of maximum
medical improvement [was] May 2007, the date of the evaluation by Dr. Hartunian.”
Appellant declined to undergo the recommended hip arthroplasty and requested that
OWCP issue a schedule award. In an October 26, 2011 letter, OWCP asked Dr. Hartunian to
explain whether appellant had reached maximum medical improvement in lieu of surgery. In an
October 28, 2011 letter, Dr. Hartunian reiterated that appellant’s condition “progressively
worsened” since the May 2007 diagnosis.
In a November 22, 2011 memorandum, OWCP listed that, as of February 8, 2011,
appellant’s annual base pay rate was $55,530.00, or $1,067.88 a week. It noted that he
“continued to be exposed to injurious work factors” through February 8, 2011.
By decision dated November 30, 2011, OWCP granted appellant a schedule award for a
51 percent impairment of the left lower extremity. The decision found the date of maximum
medical improvement as May 30, 2007. The period of the award ran from February 8 to
November 19, 2011. OWCP based the schedule award compensation on appellant’s weekly pay
rate of $1,067.88 as of February 8, 2011.
Oral argument was held on June 25, 2013. At oral argument, counsel submitted a
supplemental memorandum asserting that OWCP erred by failing to begin the November 30,
2011 schedule award on May 30, 2007, the date of diagnosis.

2

Table 16-4 of the sixth edition of the A.M.A., Guides is the Hip Regional Grid.

2

The Board issued an Order Allowing Supplemental Pleading on July 5, 2013. On
July 19, 2013 the Director of OWCP submitted a Motion to Remand, contending that the case
required further development on the issue of maximum medical improvement. He asserted that
OWCP’s medical adviser incorrectly referred to the date of diagnosis as the date of maximum
medical improvement. In response, counsel submitted a supplemental pleading on August 22,
2013, asserting that the proper date of maximum medical improvement was July 13, 2007.3
LEGAL PRECEDENT
The schedule award provisions of FECA4 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized 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 OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.6
The period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from the residuals of the employment injury.
Maximum medical improvement means that the physical condition of the injured member of the
body has stabilized and will not improve further.7 The determination of the date of maximum
medical improvement is factual in nature and depends primarily on the medical evidence.8 The
date of maximum medical improvement is usually considered to be the date of the evaluation
accepted as definitive by OWCP.9 The Board has also noted a reluctance to find a date of
maximum medical improvement which is retroactive to the award, as retroactive awards often

3

In his August 22, 2013 pleading, counsel requested a second oral argument on the present case. The Board, in
its discretion, has considered counsel’s request for oral argument. The request is denied on the grounds that it would
serve no useful purpose and only serve to delay the issuance of a decision in the case.
4

5 U.S.C. § 8107.

5

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

Adela Hernandez-Piris, 35 ECAB 839 (1984).

8

J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

9

Federal (FECA) Procedure Manual, Part 3 -- supra note 6 at Chapter 3.700.3.a (January 2010); see Richard
Larry Enders, 48 ECAB 184 (1996) (the date of maximum medical improvement was the date of the audiologic
examination used as the basis of the schedule award).

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result in payment of less compensation benefits. The Board, therefore, requires persuasive proof
of maximum medical improvement if OWCP selects a retroactive date.10
ANALYSIS
OWCP accepted that, on or before February 8, 2011, appellant sustained an aggravation
of degenerative arthritis of the left hip. Appellant claimed a schedule award and submitted a
May 3, 2011 impairment rating from Dr. Hartunian, an attending Board-certified orthopedic
surgeon, who rated 51 percent impairment of the left leg due to the accepted condition.
Dr. Hartunian found that appellant attained maximum medical improvement when diagnosed in
May 2007 and that the condition had worsened since that time. He appears to have
misinterpreted the meaning of maximum medical improvement, a permanent stabilization of the
condition, as he stated appellant’s condition continued to worsen. Therefore, May 2007 is not
established by the medical evidence to be the correct date of maximum medical improvement.
An OWCP medical adviser stated that appellant reached maximum medical improvement
in “May 2007, the date of the evaluation by Dr. Hartunian.” However, Dr. Hartunian evaluated
appellant on May 3, 2011, not in May 2007.
The medical adviser concurred with
Dr. Hartunian’s assessment of a 51 percent impairment of the left lower extremity.
On November 30, 2011 OWCP granted appellant a schedule award for a 51 percent
impairment of the left leg, based on Dr. Hartunian’s rating. The percentage of impairment and
the method of its calculation are not at issue. OWCP listed May 30, 2007 as the date of
maximum medical improvement; yet, it commenced the award on February 8, 2011, the date that
appellant first related his condition to work factors.11 It also based the amount of the schedule
award on appellant’s pay rate as of February 8, 2011.
The Board finds that the November 30, 2011 schedule award decision sets forth an
incorrect date of maximum medical improvement. The case will be remanded to OWCP for
further development to ascertain the correct date of maximum medical improvement. Following
any development as deemed necessary, OWCP will issue a de novo decision in the case.
On appeal, counsel asserts that OWCP erred by starting the period of the schedule award
on the date of injury rather than on any of the offered dates of maximum medical improvement.
As noted, the case is returned to OWCP for additional development regarding the date of
maximum medical improvement.
CONCLUSION
The Board finds that the case is not in posture for a decision.

10

James E. Earle, 51 ECAB 567 (2000).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3.a (January 2010),
supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 30, 2011 is set aside, and the case remanded for
further development consistent with this decision and order.
Issued: September 16, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 21-0932
Issued: February 10, 2022

Case Submitted on the Record

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

JURISDICTION
On June 1, 2021 appellant filed a timely appeal from an April 7, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 7, 2021 decision, OWCP received additional evidence. 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.

FACTUAL HISTORY
On January 19, 2021 appellant, then a 42-year-old sales clerk and distribution associate,
filed an occupational disease claim (Form CA-2) alleging that she developed back and bilateral
foot pain due to factors of her federal employment, including prolonged standing repetitive
bending and dragging. She noted that she first became aware of her condition and realized its
relation to her federal employment on October 3, 2020. Appellant did not stop work.
In a form report dated December 2, 2020, Dr. David Stolzenberg, a physical medicine,
rehabilitation, and pain management specialist, diagnosed lumbar radiculopathy and lumbar
spondylolisthesis. He advised that appellant was unable to repetitively sit, stand, bend, or twist
and should not lift over 10 pounds.
In a development letter dated February 1, 2021, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed,
including a detailed factual description of the alleged employment factors, and provided a
questionnaire for her completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide additional information, including comments from a
knowledgeable supervisor and an explanation of appellan t’s work activities. It afforded both
parties 30 days to submit the necessary evidence.
OWCP thereafter received an October 28, 2020 note from Dr. Stolzenberg, who provided
restrictions allowing appellant to alternate sitting and standing hourly. In a referral form of even
date, Dr. Stolzenberg prescribed magnetic resonance imaging (MRI) scan studies of her lumbar
spine.
In a February 4, 2021 response to OWCP’s development questionnaire, J.W., an employing
establishment supervisor, indicated that appellant’s job duties had not changed in years which
required her primarily to work on her feet. He noted that there had been no recent changes in her
duties, and that her duties included distributing parcels, lifting trays, moving equipment around on
wheels, and servicing customers at the window with transactions involving small parcels, flats,
and books of stamps. In addition, J.W., related that the office had a pallet lift to minimize constant
bending, and that employees received a lunch break and rest breaks between customers. He
attached a position description for a sales and service associate listing appellant’s employment
duties, and identified various tasks which she did not perform.
OWCP also received a request for a temporary light-duty assignment dated March 2, 2021.
By decision dated April 7, 2021, OWCP denied appellant’s claim, finding that she had not
established the factual component of her claim, as she had not submitted additional evidence to
substantiate her employment-related activities in response to the development letter. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.

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LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.
In her Form CA-2, appellant indicated that she developed back and bilateral foot pain due
to prolonged standing when sorting parcels and repetitive bending and dragging. OWCP, in its
February 1, 2021 development letter, requested that she complete an attached questionnaire and
provide a detailed factual description of the alleged employment factors. Appellant, however, did
not respond to OWCP’s February 1, 2021 development letter or otherwise provide a factual
statement identifying employment factors alleged to have caused or contributed to a medical
condition.8 Furthermore, Dr. Stolzenberg’s October 28, 2020 forms and February 1, 2021 letter
do not identify any employment factors alleged to have caused the diagnosed conditions.

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
8

Id.

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As the evidence of record is insufficient to establish that the alleged employment factors
occurred as described, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 10, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mount Prospect, IL, Employer
__________________________________________

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

Docket No. 11-1201
Issued: September 19, 2012

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 April 18, 2011 appellant, through his attorney, filed a timely appeal from an
October 22, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that a July 15, 2009
wage-earning capacity decision should be modified for the period January 1 to April 10, 2010.
On appeal his attorney asserts that the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 24, 2002 appellant, then a 42-year-old letter carrier, filed a traumatic
injury claim alleging that he injured his right shoulder and neck when he fell from his postal
vehicle while holding onto a handrail. OWCP accepted a right rotator cuff sprain and strain,
right superior glenoid labrum lesions, right lesion and injury of the radial nerve, and injury to the
cervical sympathetic nerve, excluding shoulder and pelvic girdles. On December 13, 2002
Dr. Mark A. Neault, a Board-certified orthopedic surgeon, performed right shoulder arthroscopy
and repair of a superior labral tear from anterior to posterior (SLAP) lesion. On January 22,
2007 appellant was granted a schedule award for 30 percent permanent impairment of the right
arm.
Under a separate claim, adjudicated under file number xxxxxx077, OWCP accepted that
appellant sustained a sprain of the left shoulder and upper arm, left glenoid labrum lesion, and
left disorder of bursae and tendons caused by an April 17, 2008 employment injury. On
September 22, 2008 Dr. Eugene J. Bartucci, a Board-certified orthopedic surgeon, performed
arthroscopic repair of the left shoulder. Appellant received appropriate wage-loss compensation.
By report dated February 23, 2009, Dr. Bartucci advised that appellant could return to
work for eight hours a day, five days a week, with restrictions of five pounds lifting; four hours
fine manipulation and driving; two hours simple grasping; and no climbing, kneeling, pulling,
pushing or reaching above the shoulder.
On March 6, 2009 appellant accepted a full-time modified letter carrier position. The
duties were described as pick-up and deliver express and priority mail for two to three hours
daily; priority mail confirmation testing for two hours daily; related paperwork assistance and
answering telephones for one to two hours daily; and computerized forwarding mail, no records
mail and 3982’s alignment for one to two hours daily. The physical requirements were described
as lifting/carrying up to five pounds for one to two hours daily; no climbing, kneeling, pulling,
pushing or reaching above the shoulder; two hours of simple grasping; and four hours of fine
manipulation and driving.
By decision dated July 15, 2009, OWCP found that appellant was reemployed as a
modified carrier, effective July 22, 2008. It found that his actual earnings fairly and reasonably
represented his wage-earning capacity with zero loss.
Appellant, through his attorney, timely requested a hearing that was held on October 23,
2009, where he testified that he was still working the modified position. On November 10, 2009
he filed a claim for intermittent compensation for the period September 3 to October 30, 2009.
On November 12, 2009 appellant’s hours were reduced to one-and-a-half hours of pickup and
delivery of express mail daily. He continued to file claims for intermittent compensation through
December 31, 2009.
By decision dated December 14, 2009, an OWCP hearing representative affirmed the
July 15, 2009 decision.
Appellant was paid wage-loss compensation through
December 31, 2009.

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On January 18 and 29, 2010 appellant filed claims for compensation for approximately
six hours each workday for the period January 2 through 29, 2010. He attached a disability slip
from Dr. Yuliya Kin, a Board-certified anesthesiologist, who advised that appellant had a
medical appointment on January 20, 2010.
In letters dated February 3, 2010, OWCP asked appellant and the employing
establishment if his limited-duty hours had changed as part of the National Reassessment Process
(NRP). Appellant submitted a November 12, 2009 letter from the employing establishment
informing him that his hours were being reduced under NRP. In reports dated December 21,
2009 and January 20, 2010, Dr. Kin provided a review of systems and examination findings. In
reports dated February 24, 2010, Dr. Bartucci noted that appellant had bilateral shoulder injuries.
He provided findings and advised that appellant had permanent residuals and had developed
chronic degenerative conditions in both shoulders with weakness and limitation of motion in
both arms. Dr. Bartucci reiterated appellant’s permanent restrictions.
On February 25, 2010 the employing establishment requested vocational rehabilitation
for appellant, stating that he had severe permanent restrictions with little work capabilities and
advised that it could no longer offer busy work to injured employees.
The February 26, 2010 magnetic resonance imaging (MRI) scans of the right and left
shoulder demonstrated normal rotator cuffs and minimal hypertrophy of the acromioclavicular
joint without significant impingement. In reports dated March 8, 2010, Dr. Neault advised that
appellant was having increasing difficulties at work with his right shoulder and was unable to
perform his limited duties without pain. He noted appellant’s report that his left shoulder was
not doing well either. Dr. Neault provided examination findings of the right shoulder and
diagnosed SLAP lesion and labrum tear, right shoulder following repair. He advised that
appellant could work eight hours a day with restrictions of lifting five pounds for two hours
daily; fine manipulation for four hours daily; working in temperature extremes and high
humidity for four to five hours daily; simple grasping and driving for two hours daily; and no
climbing, kneeling, pulling, pushing and reaching above the shoulder. Dr. Kin performed a right
cervical facet injection for cervical degenerative disc disease on March 12, 2010. She provided a
disability slip on March 19, 2010, stating that appellant was seen for a medical appointment on
March 18, 2010. On March 24, 2010 Dr. Bartucci reported that appellant’s shoulders were still
bothering him. He reviewed the MRI scan findings and advised that repeat left shoulder surgery
could be indicated.
In a decision dated March 31, 2010, finalized on April 2, 2010, OWCP denied his claim
for compensation benefits, effective November 12, 2009, on the grounds that the evidence did
not support modification of the July 15, 2009 wage-earning capacity determination.
On April 6, 2010, through his attorney, appellant requested a hearing and continued to
submit claims for wage-loss compensation. On April 15, 2010 Dr. Bartucci performed left
shoulder arthroscopic with debridement of labrum, subacromial decompression and distal
clavicle resection.
On April 30, 2010 OWCP modified the July 15, 2009 decision, effective April 10, 2010,
because the medical evidence established that appellant’s work-related condition had worsened.

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Appellant received wage-loss compensation beginning April 10, 2010. He was also paid
compensation for 34.46 hours, for doctor visits on January 20, February 19 and 24, March 8, 12,
18 and 24, 2010.
At the hearing, held telephonically on July 12, 2010, appellant testified that in
November 2009 the employing establishment told him that there was no work available for him
under NRP based on his injuries and reduced his hours to an hour-and-a-half a day. He stated
that until that time he was delivering express mail and priority mail in the morning and would
deliver express mail in the afternoon. Appellant testified that this work was still available but
was being performed by other employees. He asserted that the position was a makeshift job,
tailored specifically for him, and that it had been withdrawn in November 2010. Appellant’s
attorney argued that, because appellant’s light-duty job had been withdrawn, he was entitled to
total wage-loss compensation.
On August 30, 2010 Dr. Bartucci performed arthroscopy of the right shoulder with
debridement of labrum, subacromial decompression and distal clavicle resection. Appellant was
placed on the periodic compensation rolls effective September 26, 2010.
By decision dated October 22, 2010, an OWCP hearing representative affirmed the
April 2, 2010 decision with respect to its denial of modification of the wage-earning capacity
determination. She set aside and remanded the case in regard to appellant’s claim for
intermittent wage-loss for time out of work for medical reasons from January to March 2010.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.2 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.3
FECA Bulletin No. 09-05 outlines OWCP procedures when limited-duty positions are
withdrawn pursuant to NRP. If a formal loss of wage-earning capacity decision has been issued,
OWCP must develop the evidence to determine whether a modification of that decision is
appropriate.4
ANALYSIS
The Board finds this case not in posture for decision. OWCP accepted that appellant
sustained employment-related injuries to his right and left shoulders. Appellant had right
shoulder surgery on December 13, 2002 and left shoulder surgery on September 22, 2008. On
2

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

3

Id.

4

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

4

March 6, 2009 he accepted a modified full-time position. By decision dated July 15, 2009,
OWCP found that appellant’s modified position fairly and reasonably represented his wageearning capacity.
Appellant filed claims for partial wage loss beginning on September 3, 2009 when his
hours were reduced under NRP and was paid appropriate wage-loss compensation through
December 31, 2009. He continued to file claims for partial wage loss and asserted that the
position on which the wage-earning capacity decision was based was makeshift and tailored
specifically for him.
OWCP issued a formal loss of wage-earning capacity decision on July 15, 2009. The
employing establishment reassessed appellant’s rated position under NRP. This resulted in a
reduction in his work hours for which he filed claims for wage-loss compensation beginning in
January 2010. OWCP analyzed the case under the customary criteria for modifying a loss of
wage-earning capacity determination, but did not acknowledge FECA Bulletin No. 09-05 or fully
follow the procedures outlined therein for claims, such as this, in which limited-duty positions
are withdrawn pursuant to NRP.
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No.
09-05 requires OWCP to develop the evidence to determine whether a modification of the
decision is appropriate.5 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals, and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.6
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of wageearning capacity determination was based was a bona fide position at the time of the rating and
to direct the employing establishment to review its files for contemporaneous evidence
concerning the position.7
As OWCP failed to fully follow the guidelines in FECA Bulletin No. 09-05, the Board
will set aside the October 22, 2010 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate
de novo decision on appellant’s entitlement to wage-loss compensation beginning in
January 2010.8

5

Id.

6

Id. at § I.A.1-2

7

Id. at § I.A.3.

8

See M.E., Docket No. 11-1416 (issued May 17, 2012).

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CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 19, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico, VA,
Employer
__________________________________________

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

Docket No. 08-2441
Issued: March 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 13, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated January 24, April 22 and July 28, 2008. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a lower back injury in the performance of
duty on October 12, 2007; and (2) whether the Office properly refused to reopen appellant’s case
for reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 42-year-old special agent, filed a claim for benefits on October 12, 2007,
alleging that he experienced pain in his lower back, radiating down his legs, while conducting
firearms training on October 12, 2007.

On December 21, 2007 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from his treating physician describing his
symptoms and the medical reasons for his condition and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office requested that appellant
submit the additional evidence within 30 days.
In a Form CA-16 dated October 15, 2007, Dr. Aldo M. Rosemblat, Board-certified in
neurosurgery, stated that appellant experienced a pinching sensation in his lower back, radiating
down to his hamstring, while participating in a firearms training exercise. He diagnosed lumbar
strain and a sacroiliac dysfunction.1
Appellant submitted three reports received by the Office on January 23, 2008. In a report
dated October 15, 2007, Dr. Rosemblat diagnosed a herniated disc at L5-S1. He stated in
another report dated October 15, 2007:
“On October 12, 2007, appellant ... in the course of a normal training exercise ...
injured his low back. He soon progressed to pain in the lower extremities and
extreme difficulty in standing, sitting and walking. He has been out of work since
then. Part of the pain and discomfort has subsided, but he is very stiff and he
moves slowly and deliberately.
“There was pronounced paravertebral muscular spasm, pain to palpation of the ST
joints, the pelvis was unleveled, the piriformiis stretching signs were positive.
There was decreased strength of the muscles supplied by L4, L5 and S1.”
Dr. Rosemblat recommended that appellant stay out of work until his condition improved and
scheduled appellant for a magnetic resonance imaging (MRI) scan of the lumbar spine, which he
underwent on October 18, 2007. The results of the MRI scan indicated a small central disc
protrusion at L5-S1 and noted a previous history of disc herniation. It noted no significant spinal
canal or foraminal narrowing and unremarkable soft tissues.
In a report dated October 29, 2007, Dr. Rosemblat stated:
“The patient returns today for follow-up. The MRI [scan] of the lumbar spine
showed some disc degeneration at L4 and L5, but no disc herniation. The
neurological and musculoskeletal examinations are improved. He was told to
continue with physical therapy and out of work for a couple of more weeks.”

1

The record indicates that the employing establishment issued appellant a Form CA-16. The Board has held that
where an employing establishment properly executes a Form CA-16 which authorizes medical treatment or a
medical examination as a result of an employee’s claim of sustaining an employment-related injury, the Form CA16 creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. Elaine Kreymborg, 41 ECAB 256 (1989). The
Office did not address this matter in its decision.

2

By decision dated January 24, 2008, the Office denied appellant’s claim, finding that he
failed to submit sufficient medical evidence in support of his claim that he sustained a lower
back injury in the performance of duty on October 12, 2007.
On February 3, 2008 appellant requested reconsideration. By decision dated April 22,
2008, the Office denied modification of its prior decision.
On May 9, 2008 appellant requested reconsideration. He contended that the Office did
not consider all of the circumstances pertaining to his October 12, 2007 work injury or describe
in sufficient detail the activities he was engaged in at the time he was injured. Appellant stated
that on the date of his injury he was conducting timed shooting events that included shooting
from prone, kneeling and standing firing positions. He depicted drills which included running,
firing and maneuvering in quick repetition, rising from a prone position, then falling down and
getting up again, while firing heavy guns. Appellant related that he began to experience lower
back pains when he lifted himself and his weapon -- a Thompson submachine gun -- from the
ground to run, fire and maneuver. He stated that the pain got progressively worse while
standing. Appellant also stated that the Office relied on incorrect legal authority in its decisions
denying his claim.
Appellant submitted physical therapy notes dated November 7 to 28, 2007 in support of
his request.
By decision dated July 28, 2008, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

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

3

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
the belief that her condition was caused, precipitated or aggravated by his employment sufficient
to establish causal relationship.9 Causal relationship must be established by rationalized medical
opinion evidence and appellant failed to submit such evidence.
ANALYSIS -- ISSUE 1
The Office accepted that appellant experienced lower back pain while conducting firearms
training on October 12, 2007. The question of whether an employment incident caused a personal
injury can only be established by probative medical evidence.10 Appellant has not submitted
rationalized, probative medical evidence to establish that the October 12, 2007 employment
incident caused a personal injury.
Appellant submitted reports from Dr. Rosemblat, who related that appellant experienced
pain in his lower back during training exercise on October 12, 2007, which radiated down to his
hamstrings. Dr. Rosemblat stated findings on examination and diagnosed lumbar strain and
sacroiliac dysfunction. He stated that appellant noted difficulty sitting, standing and walking and
felt stiffness in his lower back. Dr. Rosemblat had appellant undergo an MRI scan an
October 18, 2007 which revealed a small central disc protrusion at L5-S1, with a previous
history of disc herniation but no current findings of herniation. The MRI scan indicated no
significant spinal canal or forarninal narrowing and unremarkable soft tissues.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

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

9

Id.

10

John J. Carlone, supra note 5.

4

the medical history provided the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.11 Although Dr. Rosemblat’s reports presented diagnoses of
appellant’s condition, they did not adequately address how this condition was causally related to
the October 12, 2007 work incident. His reports did not explain how medically appellant would
have sustained a lower back injury because he was engaged in firearms training exercises. There
is insufficient rationalized evidence in the record that appellant’s lower back injury was work
related. Therefore, he failed to provide a medical report from a physician that explains how the
work incident of October 12, 2007 caused or contributed to the claimed lower back injury.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant did not provide a medical opinion which
describes or explains the medical process through which the October 12, 2007 work accident
would have caused the claimed injury. Accordingly, he did not establish that he sustained a
lower back injury in the performance of duty. The Office properly denied appellant’s claim for
compensation.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.12 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.13
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by the Office; and he has not submitted relevant and pertinent evidence not
previously considered by the Office. In his request letter, he described the activities which
caused his claimed lower back injury in greater detail. Appellant expanded on how he believed
his work duties as a firearms instructor resulted in lower back pain. The Office, however, has
accepted that he experienced lower back pain while conducting firearms training on
October 12, 2007. Appellant did not submit any evidence or legal argument which addressed the
relevant issue of whether he submitted rationalized, probative medical evidence sufficient to
establish that the October 12, 2007 employment incident caused a personal injury. The
November 2007 physical therapy notes carry no probative weight with regard to the issue at bar
because they do not address appellant’s claimed condition and are not attributable to a physician.
A physical therapist is not a “physician” within the meaning of section 8101(2) of the Act and
cannot render a medical opinion.14 The Board has held that the submission of evidence which
11

See Anna C. Leanza, 48 ECAB 115 (1996).

12

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

13

Howard A. Williams, 45 ECAB 853 (1994).

14

Barbara J. Williams, 40 ECAB 649 (1989).

5

does not address the particular issue involved in the case does not constitute a basis for reopening
the claim.15 Appellant’s reconsideration request failed to show that the Office erroneously
applied or interpreted a point of law nor did it advance a point of law or fact not previously
considered by the Office. The Office did not abuse its discretion in refusing to reopen
appellant’s claim for a review on the merits.16
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a lower back injury
in the performance of duty. The Board finds that the Office properly refused to reopen
appellant’s case for reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 24, April 22 and July 28, 2008
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: March 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See David J. McDonald, 50 ECAB 185 (1998).

16

The Board notes that appellant submitted additional evidence to the record following the April 12, 2004 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-1455
Issued: February 16, 2010

Oral Argument November 17, 2009

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

JURISDICTION
On May 20, 2009 appellant filed a timely appeal of a January 9, 2009 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration without a
merit review. Because more than a year has elapsed from the last merit decision dated
October 22, 2007 to the filing of this appeal on May 20, 2009, the Board lacks jurisdiction to
review the merits of this case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without a further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 7, 1995 appellant, then a 32-year-old custodial laborer, injured her right
shoulder when she reached up to clean wall partitions. The Office accepted her claim for right
shoulder strain with impingement syndrome with a glenoid labrum tear. It authorized right
shoulder arthroscopy with debridement of the glenoid labrum and bursoscopy with subacromial

decompression. The Office also accepted chronic pain and depression as a consequential injury.
Appellant stopped work on July 18, 1995 and returned intermittently. On September 13, 1996
she returned to limited duty as a part-time modified general clerk. Appellant began working as a
full-time general clerk on April 18, 1997. She worked intermittently until March 13, 2000 when
she returned full-time to a permanent modified general clerk position. On September 4, 2004
appellant accepted a position as a full-time modified sales associate/window clerk. The Office
paid her appropriate compensation benefits.
In a November 21, 2005 duty status report, appellant’s treating physician,
Dr. L. Markham McHenry, an osteopath specializing in family and neuromusculoskeletal
medicine, advised that appellant reduce her work schedule to six hours per day. The employing
establishment offered her a light-duty assignment as a modified maintenance support clerk,
effective September 2, 2006, based on her work restrictions as of November 21, 2005. Appellant
did not accept the position as she indicated that Dr. McHenry found it not medically suitable.1
Appellant filed a claim for total temporary disability beginning September 11, 2006. Her
representative asserted that this claim constituted a recurrence as the employing establishment
withdrew her full-time modified window clerk position when it offered her light duty as a
maintenance support clerk. On October 19, 2006 the Office requested additional evidence to
establish that the claimed recurrence beginning September 11, 2006 was caused by the accepted
1995 injury, not from the new work factors from her position that she began in November 2004.
In an October 12, 2006 statement, appellant indicated that on July 27, 2006 she met with
the employing establishment’s customer service relations coordinator and manager and asserted
that her rehabilitation window clerk position had been withdrawn due to overstaffing. She noted
that the customer service relations coordinator informed her that she would be provided a new
written job offer compliant with her medical restrictions. Appellant indicated that the light-duty
maintenance support clerk assignment offered to her was not medically suitable. In a
September 27, 2006 report, Dr. McHenry advised that she decline the light-duty assignment as it
involved too much repetitive arm motions, similar to the window clerk activities that exacerbated
her pain.
On November 6, 2006 the Office requested that the employing establishment clarify
whether appellant’s full-time, permanent modified rehabilitation assignment as a window clerk
had been withdrawn. On November 13, 2006 the employing establishment indicated that the
window clerk position remained available since September 4, 2004 when she signed the job
offer, which was deemed suitable by her treating physician. The employing establishment noted
that the November 21, 2005 duty status report directed that appellant not work with her arms
away from her body. Accordingly, it offered her light duty in compliance with the increased
restrictions until claim file number xxxxxx813 was resolved and she could return to her full-time
permanent modified job as a window clerk.

1

On March 10, 2006 appellant filed an occupational disease claim for an aggravated right shoulder condition
from her job as a window clerk. The Office is adjudicating this claim under file number xxxxxx813. This claim is
not presently before the Board.

2

In a December 6, 2006 decision, the Office denied appellant’s claim for total temporary
disability compensation beginning September 11, 2006. It found that her job assignment had
never been withdrawn and that her new work restrictions had not been accepted as being due to
her accepted condition.
An oral hearing was held on May 22, 2007. On May 23, 2007 appellant’s representative
asserted that the employing establishment eliminated appellant’s rehabilitative job to reduce
staff. He further asserted that the employing establishment was unwilling to modify appellant’s
job duties when her job offer as a maintenance support clerk was deemed medically unsuitable
by her treating physician. On June 26, 2007 the employing establishment reiterated that it never
revoked her position. It noted providing appellant with a light-duty position pending the
outcome of claim file number xxxxxx813. However, appellant refused this job offer. The
employing establishment further noted that the modified light-duty assignment was deemed
medically suitable by Dr. McHenry in 2004. It indicated that appellant could be placed back into
her previous position if she recovered from her increased disability from November 2005.
Appellant submitted statements reiterating her work restrictions from November 21, 2005 and
reiterated that her window clerk job was withdrawn due to overstaffing.
In an October 22, 2007 decision, a hearing representative affirmed the December 6, 2006
decision finding that appellant did not establish that she sustained a recurrence of total disability
on September 11, 2006 due to a withdrawal of her limited-duty assignment based on her
January 7, 1995 work injury. He also noted that she was not performing her full-time restrictedduty position because her treating physician disabled her from her position, not because the
position had been withdrawn.
On October 21, 2008 appellant requested reconsideration. She asserted that the
employing establishment terminated her rehabilitative assignment due to budgetary reasons and
not because her new work limitations were attributed to her aggravated condition. Appellant
also provided quoted excerpts from a July 27, 2006 meeting with the employing establishment to
support her contention that her job had been withdrawn. She noted that she was only quoting
material that supported her allegation.
Appellant submitted a May 20, 2008 letter from the employing establishment noting that,
medical documentation determined that no reasonable accommodation could be made allowing
her to perform the duties of her assigned job and therefore, she would remain an unencumbered
employee. A partial February 12, 2007 Equal Employment Opportunity (EEO) investigative
affidavit from the employing establishment’s customer service relations coordinator listed her
accepted and nonaccepted work restrictions. Appellant also noted that the employing
establishment would nominate her to the District Reasonable Accommodation Committee. A
February 20, 2007 affidavit from the employing establishment’s injury compensation manager
noted that her accepted work restrictions permitted an eight-hour day assignment.
In reports dated April 15 and August 6, 2004, Dr. McHenry indicated that the duties for
the modified window clerk position were in compliance with appellant’s physical abilities. In a
May 13, 2008 report, Dr. McHenry advised that the job offer as a mail processor/distribution
clerk was not medically suitable and not in compliance with appellant’s medical work tolerances.

3

Appellant submitted several partial EEO investigative affidavits, dated July 13, 2007 and
undated, from the employing establishment’s customer service relations coordinator who noted
that she was provided a medically suitable job offer until November 2005 when she had new
nonjob-related work restrictions. She noted that the new restrictions consisted of reducing work
hours from eight to six hours per day and prohibiting arm movement away from her body except
for two hours at the window. Appellant noted that she was subsequently offered a light-duty
position for her new restrictions; she accepted that position but did not show up. A February 21,
2007 EEO investigative affidavit from the employing establishment’s senior injury compensation
specialist described her accepted job-related work restrictions and noted they were expected to
be permanent. Appellant also submitted a November 16, 2004 statement attached to a portion of
an October 26, 2004 job offer noting that she reported to her window clerk position on
September 4, 2004 as it was deemed within her physical limitations by her physician. A
March 22, 2006 statement from her supervisor noted that appellant became a window clerk in
2004 and was utilized within her work restrictions.
The record contains a job offer and position description listing the physical demands of
the sales associate/window clerk position. Appellant also submitted her own questions regarding
whether her window clerk position was withdrawn. The questions contained partial
unidentifiable answers. Appellant also submitted several medical reports and documents already
of record.
In a January 9, 2009 decision, the Office denied appellant’s request for reconsideration
finding that the additional evidence was duplicative and irrelevant to the issue under review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.2 Section 10.608(b) of Office
regulations provide that, when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.3
ANALYSIS
Appellant’s request for reconsideration consists of a letter asserting that the employing
establishment withdrew her window clerk assignment due to budgetary reasons. To support her
contention, she included quoted excerpts that she indicated were from a transcript of a July 27,
2006 meeting with the employing establishment. By appellant’s own admission, she only
provided quoted excerpts that support her allegation that her job was withdrawn. The Board
finds that this evidence is not relevant as the authenticity of these quotes is not corroborated or
2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

3

Id. at § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

4

verified by their original sources or from any other evidence of record.4 Moreover, appellant’s
assertion is broad and conclusory and is similar to her previous statements regarding this matter.
The submission of evidence which repeats or duplicates evidence already in the case record does
not constitute a basis for reopening a case.5 Similarly, appellant has not raised any new legal
arguments as the issue of withdrawal has been addressed in prior Office decisions.
The EEO investigative affidavits, dated February 20 and 21, 2007, from the employing
establishment’s injury compensation manager and senior injury compensation specialist merely
acknowledge that they were aware of appellant’s physical limitations and they listed her
accepted work restrictions. As these affidavits did not address the pertinent issue of whether she
sustained a recurrence of disability due to a withdrawal of her window clerk position, this
evidence is not relevant to the particular issue involved and thus did not warrant a reopening of
the case for merit review.6 Similarly, all of the EEO investigative affidavits from the employing
establishment’s service relations coordinator indicate that appellant had a medically suitable job
assignment as a window clerk until November 2005 when her nonaccepted work restrictions
changed, at which time she was offered a light-duty assignment. However, the service relations
coordinator’s affidavits are not relevant as appellant only submitted partial sections from each
affidavit consisting of intermittent pages from multi-page documents. Moreover, none of her
affidavits addressed the relevant issue of whether her window clerk position was withdrawn.
Appellant also submitted evidence regarding her acceptance of the window clerk
position. This consisted of a job description and offer of the position; a November 16, 2004
statement noting that the window clerk assignment for which appellant reported on September 4,
2004 was within her limitations; a March 22, 2006 statement from appellant’s supervisor
indicating that she was utilized within her restrictions as a window clerk; and Dr. McHenry’s
reports dated April 5 and August 6, 2004 advising that the window clerk position was within her
abilities. These documents, though, are not relevant as they are not contemporaneous to
appellant’s recurrence claim beginning September 11, 2006 and do not otherwise address
whether appellant’s window clerk position was withdrawn.
Dr. McHenry’s May 13, 2008 report advising that the distribution clerk position was not
medically suitable and the employing establishment’s May 20, 2008 letter regarding appellant as
an unencumbered employee pertain to appellant’s subsequent job offers, which have no
relevance to the present issue of whether the employing establishment withdrew the window
clerk position in September 2006. The record also contains several documents and medical

4

See R.M., 59 ECAB __ (Docket No. 08-734, issued September 5, 2008) (it is a well-established principle that
the Board is best qualified by its expertise to judge the probative value of certain types of testimony, such as
hearsay); see also J.T., Docket No. 08-2394 (issued July 20, 2009) (where the Board found that appellant’s mere
statement of allegations did not address the underlying issue of verification and corroboration and was not sufficient
to require the Office to reopen the claim for merit review).
5

D.K., supra note 2.

6

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (where the Board held that new evidence
submitted upon a reconsideration request that does not address the pertinent issue is not relevant evidence);
Freddie Mosley, 54 ECAB 255 (2002).

5

reports already of record. As noted, the submission of evidence which repeats or duplicates
evidence already in the case record does not constitute a basis for reopening a case.
On appeal, appellant asserts that it was the employing establishment’s intent to take away
her window clerk position to make her go through the creation of a new job offer. She supports
her assertion by providing a chart that outlines the discrepancy between what the employing
establishment and her treating physician accepted as her work restrictions. The employing
establishment’s intent and the conflicting views over appellant’s work restrictions are not
relevant as neither addresses the underlying issue regarding whether the window clerk position
was withdrawn. Accordingly, appellant has not presented new and relevant legal arguments or
evidence to warrant reopening her case for a further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without a further merit review under 5 U.S.C. § 8128(a).7
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 9, 2009 is affirmed.
Issued: February 16, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
7

The Board notes that appellant submitted new evidence after the Office issued its decision. However, the Board
may only review evidence that was in the record at the time the Office issued its final decision. See 20 C.F.R.
§ 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY INSPECTION SERVICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 19-0423
Issued: August 7, 2019

Case Submitted on the Record

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

JURISDICTION
On December 18, 2018 appellant filed a timely appeal from an October 22, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

On December 18, 2018 appellant appealed the October 22, 2018 decision to the Board. On January 8, 2019
OWCP issued a decision superseding the October 22, 2018 decision. On January 11, 2019 it issued a decision
superseding both the October 22, 2018 and the January 8, 2019 decisions. As noted, the Board obtained jurisdiction
over this matter on December 18, 2018. Therefore, the subsequent decisions of OWCP are null and void as the Board
and OWCP may not simultaneously have jurisdiction over the same issue. See 20 C.F.R. § 501.2(c)(3), § 10.626; see
also M.C., Docket No. 18-1278, n.1 (issued March 7, 2019); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E.
Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted July 21, 2016 employment incident.
FACTUAL HISTORY
On July 25, 2016 appellant, then a 46-year-old consumer safety inspector, filed a traumatic
injury claim (Form CA-1) alleging that on July 21, 2016 his government vehicle was struck from
behind by a speeding car and he injured his back, neck, and head while in the performance of duty.
In an August 19, 2016 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from appellant. OWCP afforded
him 30 days to respond.
On July 26, 2016 Dr. Amin Shendy Abdelmeseeh, a Board-certified family practitioner,
examined appellant and diagnosed vertigo, right sensorineural hearing loss, and neck pain. He
noted that appellant was involved in a motor vehicle accident (MVA) on July 21, 2016 during
which he was rear-ended, which resulted in neck and back pain. Appellant reported severe
headache with dizziness.
On August 22, 2016 Dr. Ray C. Chang, a Board-certified otolaryngologist, examined
appellant due to right sensorineural hearing loss and vertigo. He noted that appellant had
experienced vertigo intermittently for two years and that his symptoms had worsened after his
July 21, 2016 MVA. Dr. Chang reported that appellant denied striking his head in the July 21,
2016 MVA. He also noted appellant’s prior history of a 2005 MVA, which resulted in a head
injury and right facial paralysis. Dr. Chang diagnosed skull fracture, injury to cranial nerve, right
sensorineural hearing loss, and vertigo. He completed a form report on August 30, 2016 and again
diagnosed right sensorineural hearing loss and vertigo.
In a September 7, 2016 note, Dr. Diana J. Lee, an optometrist, diagnosed hyperopia,
astigmatism, presbyopia, facial palsy, hyperphoria, binocular vision disorder, and injury to the
cranial nerve. She reported that appellant felt dizzier since his July 21, 2016 MVA and that he had
occasionally experienced double vision. Dr. Lee also noted that he had facial paralysis after a
right-sided nerve injury.
On September 14, 2016 appellant underwent a brain magnetic resonance imaging (MRI)
scan, which was read as unremarkable. In a September 15, 2016 note, Dr. Paul Jia Sheng Hsiang,
a Board-certified family practitioner, diagnosed chronic cranial nerve injury and skull fracture. He
noted that appellant was involved in an MVA.
By decision dated September 19, 2016, OWCP denied appellant’s claim, finding that he
had not met his burden of proof to establish causal relationship between his accepted July 21, 2016
MVA and his diagnosed medical conditions.
On October 11, 2016 appellant requested reconsideration of the September 19, 2016
decision. He asserted that, following his July 21, 2016 MVA, he became dizzy, unable to see well,
lost hearing in his right ear, his face became semi-paralyzed, and the right side of his body felt
2

heavy. Appellant alleged that he sustained significant loss of hearing in his right ear, loss of sight,
and damage to the third, fifth, and eighth cranial nerves. He alleged that he was experiencing brain
disequilibrium resulting in falls.
In support of his request, appellant submitted a note dated May 9, 2017 from Dr. Esther Y.
Hsiang, a neurologist, who diagnosed vertigo and disequilibrium. OWCP also received July 31
and August 22, 2017 notes from Dr. Michael Seung Oh, a Board-certified neurologist, who listed
appellant’s symptoms and diagnosed post-concussion syndrome.
By decision dated September 7, 2017, OWCP denied modification of the September 19,
2016 decision.
On October 3, 2017 appellant requested reconsideration of the September 7, 2017 decision
and submitted additional medical evidence. In an August 22, 2017 note, Dr. Oh examined
appellant and diagnosed post-concussion syndrome and vertigo. On August 30, 2017 Dr. Hsiang
completed a note diagnosing severe vertigo and right-sided weakness. In a note dated October 2,
2017, Dr. Oh listed appellant’s clinical symptoms of post-concussion syndrome including
imbalance, vertigo, and headaches after his MVA on July 21, 2016.
By decision dated February 8, 2018, OWCP denied modification of the September 7, 2017
decision.
On May 4, 2018 appellant requested reconsideration and submitted additional medical
evidence.
In an August 22, 2016 report, Dr. Chang diagnosed right sensorineural hearing loss and
vertigo. He checked a box marked “yes” to indicate that the employment incident described was
the competent producing cause of the injury and disability. Dr. Chang reported that appellant’s
condition was consistent with post-traumatic hearing loss and vertigo. He again noted that
appellant had denied that he struck his head during the July 2016 MVA.
On September 15, 2016 Dr. Hsiang noted appellant’s history of an MVA, noted that
appellant was rear ended, and noted that he continued to experience vertigo. He checked a box
marked “yes” to indicate that the occurrence described was the competent producing cause of the
injury and disability. Dr. Hsiang diagnosed a cranial nerve injury.
In a May 9, 2017 report, Dr. Hsiao described appellant’s history of the MVA in July 2016
during which appellant was rear ended by a car traveling 60 miles per hour. She noted that
appellant’s history was unclear regarding a head injury and that he reported everything was blurry
and he was confused. Appellant reported subsequent right facial numbness, worsened right facial
paralysis, and persistent dizziness. He also noted that his right arm and leg felt slow. Dr. Hsiao
also noted appellant’s 2005 MVA which resulted in mild right facial weakness, parietal fracture,
and “ear eruption.” She diagnosed vertigo and disequilibrium since appellant’s second concussion
in 2016. Dr. Hsiao also discussed post-concussive symptoms.
In a June 27, 2017 form report, Dr. Shawn K. Higuchi, a Board-certified neurologist,
described appellant’s history including the 2005 MVA resulting in head trauma and right facial
weakness, parietal bone fracture, and ear eruption. He reported that in July 2016 appellant was
3

rear ended by a vehicle traveling 60 miles per hour, and while appellant had no definite loss of
consciousness, he had experienced confusion and blurry vision. Dr. Higuchi noted appellant’s
ongoing symptoms of dizziness, balance issues, light-headedness, right hearing loss, and tinnitus.
He checked a box marked “yes” indicating that the employment incident described was the
competent producing cause of the injury and disability. However, Dr. Higuchi also reported that
appellant’s dizziness and right hearing loss were of uncertain etiology. He noted that he could not
explain appellant’s symptoms from a neurological standpoint.
On July 31, 2017, in a form report, Dr. Oh noted appellant’s history of an MVA in
July 2016 and his subsequent symptoms including imbalance. He checked a box marked “yes” to
indicate that the employment incident described was the competent producing cause of the injury
and disability. Dr. Oh also reported appellant’s 2005 MVA which caused right facial weakness
and parietal skull fracture. He found that appellant’s headaches, dizziness, and concentration
issues were suggestive of post-concussion syndrome. Dr. Oh also suggested that appellant had
some anxiety or depression.
On August 30, 2017 Dr. Hsiang diagnosed vertigo and muscle weakness. In a form report
dated October 10, 2017, he checked a box marked “yes” to indicate that the occurrence described
was the competent producing cause of the injury and disability. In a report dated October 10,
2017, Dr. Hsiang completed a similar form report. He checked a box marked “yes” to indicate
that the employment incident described was the competent producing cause of the injury and
disability. Dr. Hsiang diagnosed vertigo, cranial nerve injury, and skull fracture.
On April 17, 2018 Dr. Guirguis S. Hanna, a Board-certified physiatrist, described
appellant’s July 21, 2016 MVA as occurring on the freeway when traffic stopped and appellant
was rear ended. Appellant reported that he lost consciousness for about five minutes and
immediately developed neck and back pain. Later, appellant developed vertigo, diminished
hearing in the right ear with tinnitus, and weakness on the right side of his body. Dr. Hanna noted
that appellant continued to lose balance and fall. He reviewed appellant’s medical treatment and
on physical examination found facial asymmetry with diminished raising of the right eyebrow and
weakness of the right orbicularis oris as well as diminished hearing in the right ear. Dr. Hanna
also reported give-way weakness of his right upper and lower limbs. He noted that appellant’s
diagnostic studies were normal. Dr. Hanna diagnosed post-concussion syndrome, cranial nerve
injury, right sensorineural hearing loss, disequilibrium, and vertigo. He checked a box marked
“yes” to indicate that the employment incident was the competent producing cause of the injury
and disability. Dr. Hanna also opined that there was a direct causal relationship between
appellant’s current symptoms and the work-related MVA on July 21, 2016. He determined that
appellant developed permanent aggravation of preexisting problems as a result of the July 21, 2016
MVA.
In a March 1, 2018 report, Dr. Tik Lung Dion Fung, a Board-certified neurologist,
diagnosed syncope. He checked a box marked “yes” to indicate that the occurrence described was
the competent producing cause of the injury and disability. Dr. Fung noted appellant’s prior
history of head trauma put him at risk for post-traumatic seizures and dissection. However, he
also noted that he suspected that anxiety and depression played a major role and that appellant was
seeking permanent disability from work. On March 23, 2018 Dr. Fung reported continued signs

4

of cranial nerve damage, right arm and leg weakness, as well as imbalance. He also noted that
appellant had recurrent episodes of loss of consciousness.
On April 10, 2018 Dr. Abdelmeseeh noted appellant’s history of a July 21, 2016 MVA
during which he was rear ended resulting in neck pain and back pain which “had resolved.”
Appellant reported a severe headache with dizziness. Dr. Abdelmeseeh diagnosed vertigo and
neck pain.
In an April 10, 2018 report, Dr. Kathy Lin Chuang, Board-certified in emergency
medicine, examined appellant due to his history of recurrent vertigo, which was present since his
July 21, 2016 MVA. She noted that appellant fainted and fell onto an old chair with an exposed
nail and punctured his left thumb.
By decision dated June 4, 2018, OWCP denied modification of the February 8, 2018
decision.
On June 6, 2018 the employing establishment provided the July 21, 2016 traffic collision
report which indicated that appellant was stopped and the other car was changing lanes when the
MVA occurred. The other driver indicated that she was going 15 miles per hour one car length
behind appellant when he stopped in front of her and she was unable to brake to stop prior to hitting
appellant’s vehicle.
On September 24, 2018 appellant requested reconsideration of the June 4 2018 decision.
In support of his request, he submitted an August 14, 2018 report from Dr. Hanna, which he
contended was sufficient to meet his burden of proof.
In an August 14, 2018 report, Dr. Hanna disagreed with OWCP’s assessment of his prior
report and listed appellant’s symptoms of five days after the MVA as headache, vertigo, neck, and
back pain. He noted that appellant continued to have dizziness and imbalance, as well as
developing weakness on the right side of his body. Dr. Hanna noted that, although appellant
indicated that he had recovered from the 2005 MVA, he continued to exhibit vertigo, fifth cranial
nerve deficit, and possible eight cranial nerve damage as a result of that preexisting injury. He
opined that these conditions were stable and that appellant was able to carry out most normal
activities. Dr. Hanna noted that appellant stopped work in April 2017 as it became unsafe for him
to drive or walk without assistance due to dizziness, tinnitus, blurry vision, and weakness of the
right side of his body. He concluded that as a direct effect of the work-related MVA appellant
sustained irreversible change in his underlying conditions and adverse alteration in the course of
his preexisting conditions. Dr. Hanna opined that appellant’s primary diagnosis was postconcussion syndrome, which was not demonstrable on the MRI scan or other electrodiagnostic
studies. He explained that a concussion was a brain injury caused by a force transmitted to the
head from direct or indirect contact with the head, face, or neck, which results in either a collision
between the brain and skull or in a strain on the neural tissue and vasculature. Dr. Hanna also
explained that a concussion could occur with violent shaking or movement of the head or body.
He noted that the impact or strain was believed to cause the symptoms of concussion through a
cascade characterized by abrupt neuronal depolarization, release of excitatory neurotransmitters,
ionic shifts, altered glucose metabolism and cerebral blood flow, and impaired axonal function.
Dr. Hanna further noted that in a car accident the head might be violently flung forward or to the

5

side and since the brain rests in a pool of cerebrospinal fluid and is not directly secured, it can be
jostled and smashed against the inside of the skull. He explained that patients did not have to lose
consciousness to have a concussion or post-concussion syndrome and that post-concussion
syndrome does not appear to be associated with the severity of the initial injury. Dr. Hanna noted
that appellant was rear ended on July 21, 2016 and that the MVA occurred in the performance of
duty. He concluded that the above constituted the biomechanical explanation of how appellant’s
condition resulted from the July 21, 2016 injury. Dr. Hanna found that there was a direct causal
relationship between appellant’s diagnosed conditions and the employment-related MVA on
July 21, 2018.
By decision dated October 22, 2018, OWCP denied modification of the June 4, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6
John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).

6

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.8
ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of his claim, appellant provided an August 14, 2018 report from Dr. Hanna
indicating that he was aware of appellant’s underlying conditions as the result of the 2005 MVA
including vertigo, fifth cranial nerve deficit, and possible eight cranial nerve damage as a result of
that injury. However, he found that the July 21, 2016 MVA resulted in new and exacerbated
conditions. Dr. Hanna found that appellant sustained dizziness, tinnitus, blurry vision, and
weakness of the right side of his body. He concluded that as a direct effect of the work-related
July 21, 2016 MVA, appellant sustained irreversible change in his underlying conditions and
adverse alteration in the course of his preexisting conditions.
Dr. Hanna provided a detailed explanation of a concussion and how this condition resulted
in appellant’s primary diagnosis of post-concussion syndrome. He explained that a concussion
was a brain injury caused by a force transmitted to the head from direct or indirect contact with
the head, face, or neck which results in either a collision between the brain and skull or in a strain
on the neural tissue and vasculature. Dr. Hanna also explained that a concussion could occur with
violent shaking or movement of the head or body. He noted that the impact or strain was believed
to cause the symptoms of concussion through a cascade characterized by abrupt neuronal
depolarization, release of excitatory neurotransmitters, ionic shifts, altered glucose metabolism
and cerebral blood flow, and impaired axonal function. Dr. Hanna further noted that in a car
accident the head might be violently flung forward or to the side and since the brain rests in a pool
of cerebrospinal fluid and is not directly secured, it can be jostled and smashed against the inside
of the skull. He explained that patients did not have to lose consciousness to have a concussion or
post-concussion syndrome and that post-concussion syndrome does not appear to be associated
with the severity of the initial injury. Dr. Hanna concluded that this was the biomechanical
explanation of how appellant’s condition resulted from the July 21, 2016 injury. Although
Dr. Hanna’s reports are insufficient to discharge appellant’s burden of proving that his current
post-concussion syndrome was caused or aggravated by the July 21, 2016 MVA, his opinion is
sufficient to require further development of the case record by OWCP.

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB 345(1989).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); D.S.,
Docket No. 17-1359 (issued May 3, 2019).

7

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.9
On remand OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician should provide an evaluation and a
rationalized medical opinion as to whether appellant’s post-concussion syndrome was caused or
aggravated by the accepted July 21, 2016 employment incident. After such further development
of the case record as OWCP deems necessary, it 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 October 22, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: August 7, 2019
Washington, DC

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

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

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

9
D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

8