United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HINES ILLINOIS VETERANS
ADMINISTRATION MEDICAL CENTER,
Hines, IL, Employer
__________________________________________

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

Docket No. 13-1804
Issued: January 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 29, 2013 appellant filed a timely appeal from the July 1, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an elbow injury on
March 4, 2013 in the performance of duty.
On appeal, appellant contends that he was on the job when he fell on March 4, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 6, 2013 appellant, then a 54-year-old health aid, filed a traumatic injury claim
(Form CA-1) alleging that at 3:45 p.m. on March 4, 2013 he fractured his elbow when he slipped
on ice in a parking lot. He stopped work on March 5, 2013. On the claim form, Daniel P.
Bracker, an escort service manager, controverted the claim contending that appellant should not
have been in the parking lot at the time of injury. He indicated that appellant’s regular work
hours were from 7:30 a.m. to 4:00 p.m., Monday through Friday. In a separate statement dated
March 6, 2013, Mr. Bracker stated that on that date, appellant requested that a Form CA-1 or an
occupational disease claim (Form CA-2) be completed for his fall. He reviewed paperwork from
the employing establishment’s employee health unit in which appellant stated that the incident
occurred in the parking lot at 3:45 p.m. Mr. Bracker again noted that appellant’s work schedule
was from 7:30 a.m. to 4:00 p.m. and related that appellant informed him and the employee health
unit that he was going to wait by the vehicle of Romeo Gallegos for a ride home.
Medical reports dated March 6 and 7, 2013 and diagnostic test results dated March 21,
2013 advised that appellant had a right radial head fracture of the elbow and addressed his
medical treatment, physical restrictions and work capacity. In a March 6, 2013 report,
Dr. Philip E. McAndrew, a Board-certified family practitioner, advised that appellant’s right
radial head fracture was caused by the March 4, 2013 incident.
By letter dated May 10, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It further advised him of the medical and factual evidence
needed and was asked to respond to the questions provided in the letter within 30 days. OWCP
also requested that the employing establishment submit factual evidence regarding the parking
lot where appellant fell.
On May 15, 2013 appellant stated that he could be wrong about the time of injury. He
stated that “I know it was close to 4:00.” Appellant slipped and fell on the ice as he walked in
the employing establishment’s parking lot to a friend’s car to try to get a ride home. He did not
know if it was his or someone else’s responsibility to pay for parking.
Also, on May 15, 2013 the employing establishment responded yes to the questions
regarding whether it agreed that appellant was injured in the parking lot that it owned, it
controlled or managed the parking facilities and paid for parking; the public was allowed to use
this lot; other parking was available; and the parking area was monitored to see that no
unauthorized cars were parked in the lot. The employing establishment responded “no” to the
questions whether it assigned parking spaces on the lot or that appellant was entitled to
reimbursement for travel to and from the parking lot or for parking expenses.
Medical reports dated March 13, April 2 and May 15, 2013 addressed appellant’s right
elbow fracture and work capacity.
In a July 1, 2013 decision, OWCP denied appellant’s claim. It found that the evidence
was sufficient to establish that the March 4, 2013 incident occurred as alleged and that a medical
condition had been diagnosed in connection with the injury or event. OWCP, however, found
that the evidence was insufficient to establish that the claimed injury arose during the course of

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appellant’s employment or within the scope of compensable work factors as he was not in his
work area at the time of injury and there was no indication that he was excused early from work
which might account for his presence in the parking lot at that time.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 The phrase sustained while in the
performance of duty is regarded as the equivalent of the coverage formula commonly found in
workers’ compensation laws, namely, arising out of and in the course of employment.3 In the
course of employment relates to the elements of time, place and work activity. To arise in the
course of employment, an injury must occur at a time when the employee may reasonably be
said to be engaged in his or her employer’s business, at a place where he or she may reasonably
be expected to be in connection with his or her employment and while he or she was reasonably
fulfilling the duties of his or her employment or engaged in doing something incidental thereto.4
As to the phrase in the course of employment, the Board has accepted the general rule of
workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to or
from work, before or after working hours, or at lunch time, are compensable.5
As to what constitutes the premises of an employing establishment, the Board has stated
that the term premises as it is generally used in workmen’s compensation law, is not synonymous
with property. The former does not depend on ownership, nor is it necessarily coextensive with
the latter. In some cases premises may include all the property owned by the employer; in other
cases even though the employer does not have ownership and control of the place where the
injury occurred the place is nevertheless considered part of the premises.6
The Board has pointed out that factors, which determine whether a parking lot used by
employees may be considered a part of the employing establishment’s premises, include whether
the employing establishment contracted for the exclusive use by its employees of the parking
area, whether parking spaces on the lot were assigned by the employing establishment to its
employees, whether the parking areas were checked to see that no unauthorized cars were parked
in the lot, whether parking was provided without cost to the employees, whether the public was
permitted to use the lot, and whether other parking was available to the employees. Mere use of
a parking facility, alone, is not sufficient to bring the parking lot within the premises of the
2

5 U.S.C. § 8102(a).

3

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. See Bernard D. Blum, 1 ECAB 1 (1947).
4

See Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp
(Joseph L. Barenkamp), 5 ECAB 228 (1952).
5

Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general rule of workers’
compensation law in circumstances where the employee was on an authorized break. See Eileen R. Gibbons, 52
ECAB 209 (2001).
6

Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

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employing establishment. The premises doctrine is applied to those cases where it is
affirmatively demonstrated that the employer owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission or provided parking for its
employees.7
ANALYSIS
Appellant alleged that he sustained a fractured right elbow in the performance of duty on
March 4, 2013 when he slipped on ice in a parking lot. OWCP denied his claim because he
deviated from his regular employment duties, thereby removing himself from the performance of
duty. The Board finds that appellant has not established that he sustained an injury in the
performance of duty.
Appellant had fixed hours and a fixed place of employment. His work shift was from
7:30 a.m. to 4:00 p.m., Monday through Friday. The employing establishment indicated that
appellant was on the grounds of the parking lot at the time of his fall. It stated that it owned,
controlled and managed the parking lot. The employing establishment checked the parking lot
for unauthorized use and paid for employees’ use of the lot although it did not assign parking
spaces and other parking was available. Under these circumstances, the Board finds that the
parking lot was part of the employing establishment’s premises.8
OWCP denied appellant’s claim because he left his work location prior to the end of his
tour of duty, thereby removing himself from the performance of duty. The mere fact that the
employee was on the premises at the time of injury is not sufficient to establish entitlement to
compensation benefits. It must also be established that he or she was engaged in activities which
may be described as incidental to his or her employment, i.e., that he or she was engaged in
activities which fulfilled or were incidental to his or her employment duties or responsibilities
thereto.9 In B.I.,10 the claimant was robbed at gunpoint during his work tour while walking on
the premises of the employing establishment’s parking garage. The Board held that he was not
in the performance of duty as he did not submit any evidence showing that he was engaged in
any duty reasonably incidental to his employment at the time of the robbery. The Board further
found that appellant departed from his workstation for unknown reasons and without
authorization at the time of the robbery.
In the present case, the Board notes that appellant offered conflicting evidence regarding
the time of injury on March 4, 2013. Initially, appellant alleged that his injury occurred at 3:45
p.m. on the date of injury. He subsequently related that he could have been wrong about the time
of injury and stated that “I know it was close to 4:00” when he was walking to his friend’s car in
7

See Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 42 ECAB 500 (1991); Edythe Erdman,
36 ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982).
8

See D.L., 58 ECAB 217 (2007); Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004); Wilmar Lewis Prescott,
22 ECAB 318 (1971).
9

A.K., Docket No. 09-2032 (issued August 3, 2010).

10

Docket No. 12-1060 (issued January 11, 2013).

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the employing establishment parking lot to get a ride home. In both scenarios, appellant was in
the parking lot prior to the end of his work shift which ended at 4:00 p.m. The record does not
indicate why he would be in the parking lot before 4:00 p.m. when his shift did not end until that
time on the date of injury. The record also does not explain why appellant left work early on the
date of injury. According to Mr. Bracker appellant should not have been in the parking lot at
3:45 p.m. as his work shift did not end until 4:00 p.m. Based on his statement, appellant did not
have permission to leave the employing establishment’s premises early on March 4, 2013.
Regardless of whether the incident occurred at 3:45 p.m. or 4:00 p.m., appellant has not
submitted any evidence to establish that on March 4, 2013 he was engaged in the duties of his
employment with the employing establishment or in activities which may be characterized as
reasonably incidental to the conditions of his employment at the time the injury occurred.11 He
was not in the performance of his work duties at the time of the incident, but was instead in the
parking lot waiting for a ride to go home. For the stated reasons, the Board finds that appellant
has failed to meet his burden of proof to establish that he sustained an injury while in the
performance of duty.
On appeal, appellant contended that he was on the job when he fell on March 4, 2013.
As found above, the record establishes that appellant was on the employing establishment’s
premises at the time of injury, but he failed to submit any evidence to establish that he was
engaged in any duty reasonably incidental to his employment at the time of his fall.
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 his burden of proof to establish an elbow
injury on March 4, 2013 in the performance of duty.

11

Joseph C. Grzesik, Docket No. 03-1492 (issued February 5, 2004); Socorro Chimels, claiming as the widow of
Angel Chimelis, 22 ECAB 132 (1971).

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ORDER
IT IS HEREBY ORDERED THAT the July 1, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, 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
__________________________________________
E.T., widow of T.H., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Portland, OR,
Employer
__________________________________________

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

Docket No. 16-1912
Issued: March 6, 2017

Case Submitted on the Record

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

JURISDICTION
On September 29, 2016 appellant filed a timely appeal of an August 3, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was the July 14, 2014 decision of the Board.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board lacks jurisdiction
over the merits of this case.

1

Appellant filed a petition for reconsideration of this decision on August 14, 2014 and the Board issued an Order
Denying Petition for Reconsideration on January 20, 2015. With respect to the findings made in the Board’s
July 14, 2014 decision, these matters are res judicata. The decisions and orders of the Board will be final upon the
expiration of 30 days from the date of issuance unless the Board has fixed a different period of time therein. 20
C.F.R. § 501.6(d).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This claim has previously been before the Board.3 On July 31, 2012 appellant filed a
claim for compensation by widow (Form CA-5) noting that the employee, a personnel officer,
died on December 12, 2011, at 82 years of age, due to fibrotic lung disease and acute kidney
failure. She identified the employee’s work-related condition as melanoma.4 The employee
worked with the Atomic Energy Commission from July 2, 1962 through September 10, 1964.
The employee retired on March 22, 1978 from the employing establishment.
Appellant submitted the employee’s medical records from 2009. The record shows that
on August 17, 2009 the employee underwent a chest computerized tomography (CT) scan which
demonstrated abnormalities representative of interstitial lung disease. The CT scan demonstrated
evidence of fibrosis more than expected for age-related fibrosis with multiple bilateral
pulmonary nodules. In a report dated August 24, 2009, Dr. Allen B. Adolphe, a Board-certified
internist, reviewed appellant’s CT scan findings of fibrosis and multiple small pulmonary
nodules. He noted that the employee was exposed to “nuclear weapons” in the distant past and
noted, “whether this is in relation to that [the CT findings] is unknown.” Dr. Richard E. Crowell,
a Board-certified pulmonologist, examined appellant on September 17, 2009 due to the findings
of the CT scan. At that time, the employee reported a history of smoking about two packs of
cigarettes a day for 20 years. He also worked for two years for the Atomic Energy Commission
transporting radioactive and other types of waste. The employee noted that he wore a badge
religiously and was never told that this badge exhibited any exposure problems. Dr. Crowell
noted that the employee did not appear to have any unusual environmental or occupational
exposures.
Medical records reflect that the employee underwent a second chest CT scan on
October 26, 2011 which demonstrated multiple pulmonary opacities. These findings were
largely similar to his prior CT scan with a slight interval worsening of fibrotic lung disease. The
employee also had new nonspecific ground-glass opacities. The employee sought treatment
from his physician on November 3, 2011 due to hypoxia and was sent to the hospital due to
pneumonia. He requested a discharge but, after his symptoms worsened at home, returned to the
hospital where he was placed on mechanical ventilation. The employee was diagnosed with a
history of interstitial lung disease with unknown etiology. He developed kidney dysfunction.
The employee died on December 12, 2011 with diagnoses of respiratory failure, hypertension,
sepsis, encephalopathy, anemia, and diabetes. The death certificate listed the employee’s cause
of death as pneumonia and acute kidney failure.
3

Docket No. 14-0861 (issued July 14, 2014); Order Denying Petition for Reconsideration, Docket No. 14-0861
(issued January 20, 2015).
4

Appellant filed a claim under the Energy Employees Occupational Illness Compensation Program Act on
May 7, 2012.

2

In a factual recitation, appellant noted that the employee worked as a courier for the
Atomic Energy Commission transporting radioactive and explosive materials. She alleged that
he was exposed to radiation, beryllium, asbestos powder, gaseous materials, and other toxic
substances. Appellant asserted that the employee left the Atomic Energy Commission to return
to college and that after graduation he worked for the Air Force and retired from the Bonneville
Power Administration in 1978. She noted that the employee had 31 skin biopsies, 478 liquid
nitrogen procedures, and 3 Efudex skin treatments. The employee was diagnosed with two basal
cell carcinomas, two melanomas, five squamous cell carcinomas, and prostate cancer.
By decision dated June 19, 2013, OWCP denied the claim finding that there was no
medical opinion evidence supporting a causal relationship between the employee’s death and his
federal employment.
Appellant requested reconsideration on October 8, 2013. She submitted a form report
dated August 9, 2013 signed by Dr. Adolphe noting that the employee had a history of prior
exposure to “nuclear weapons” and diagnosing pulmonary fibrosis. Dr. Adolphe related that the
employee’s pneumonia was exacerbated by underlying pulmonary fibrosis and acute renal
failure. He indicated by checking a box marked “yes” that the employee’s death was due to
exposure to nuclear weapons.
By decision dated October 18, 2013, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that the medical evidence of record was not
sufficiently detailed to establish a causal relationship between the employee’s diagnosed
conditions resulting in his death and any employment exposures. Appellant appealed to the
Board. The Board affirmed the October 18, 2013 decision, finding that appellant had failed to
submit the necessary rationalized medical opinion evidence to establish a causal relationship
between the employee’s work exposures and his death.5 The Board concluded that appellant had
not met her burden of proof to establish a death benefits claim.
Appellant requested reconsideration on July 27, 2016. She argued that Dr. Adolphe’s
reports had not been properly reviewed by OWCP or by the Board, and provided quotations from
these reports to support her arguments.
By decision dated August 3, 2016, OWCP declined to reopen appellant’s claim for
further consideration of the merits as her request for reconsideration was untimely and failed to
demonstrates clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle a claimant to a review of an OWCP decision
as a matter of right.7 OWCP, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of FECA. It will not review a decision denying or
5

Supra note 3.

6

5 U.S.C. § 8128(a).

7

Thankamma Mathews, 44 ECAB 765, 768 (1993).

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terminating a benefit unless the application for review is received within one year of the date of
that decision.8 The one-year period begins on the date of the original decision. However, a right
to reconsideration within one year accompanies any subsequent merit decision on the issues.
This includes any hearing or review of the written record decision, any denial of modification
following reconsideration, any merit decision by the Board, and any merit decision following
action by the Board, but does not include prerecoupment hearing decisions.9
In those cases where requests for reconsideration are untimely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether the
claimant has demonstrated clear evidence of error.10 OWCP’s procedures state that OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set forth
in OWCP’s regulations, if the claimant’s request for reconsideration demonstrates clear evidence
of error on the part of OWCP.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.14 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.15 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.16 To
demonstrate evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.17 The Board must
make an independent determination of whether a claimant has demonstrated clear evidence of

8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (February 2016).

10

Supra note 7.

11

Supra note 9 at Chapter 2.1602.5 (February 2016).

12

Supra note 7.

13

Leona N. Travis, 43 ECAB 227, 241 (1991).

14

Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

15

Supra note 13.

16

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

17

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

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error on the part of OWCP such that OWCP abused its discretion in denying merit review in the
face of such evidence.18
ANALYSIS
The Board finds that appellant’s request for reconsideration was untimely filed. As noted
above, an application for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.19 As appellant’s request for reconsideration was
not received by OWCP until July 27, 2016, more than one year after issuance of the most recent
merit decision, the Board’s July 14, 2014 decision, it was untimely filed. Consequently, she
must demonstrate clear evidence of error by OWCP in its decision finding that she had not
established that the employee’s death was causally related to his federal employment.
In accordance with internal guidelines and Board precedent, OWCP properly proceeded
to perform a limited review to determine whether appellant’s request for reconsideration
demonstrated clear evidence of error, which would warrant reopening her case for merit review
under section 8128(a) of FECA, notwithstanding the untimeliness of her application. It reviewed
the argument submitted in support of her reconsideration request, but found that it did not
demonstrate that OWCP’s prior decisions were in error.
The Board finds that the argument submitted by appellant in support of her
reconsideration does not raise a substantial question as to the correctness of OWCP’s decision
and is insufficient to demonstrate clear evidence of error. The underlying issue is a medical one,
and had to be established through the submission of medical evidence. Appellant did not submit
any additional medical evidence in support of her request for reconsideration, but instead
provided her review of the medical evidence in the record. This evidence had been considered
and reviewed by the Board in its prior merit decision. Appellant’s request for reconsideration
does not demonstrate on its face that OWCP’s merit decision was erroneous. Therefore, the
Board finds that appellant has not demonstrated clear evidence of error in OWCP’s finding that
she failed to establish that the employee’s death was due to his federal employment
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

18

Nancy Marcano, 50 ECAB 110 (1998).

19

20 C.F.R. § 10.607(a).

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ORDER
IT IS HEREBY ORDERED THAT the August 3, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 14-1696
Issued: December 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 1, 2014 appellant, through his attorney, filed a timely appeal from a
March 14, 2014 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 OWCP properly reduced appellant’s compensation benefits effective
July 28, 2013, based on his capacity to earn wages in the constructed position of adjustment
clerk.
FACTUAL HISTORY
OWCP accepted that on August 26, 2008 appellant, then a 44-year-old letter carrier,
sustained internal derangement, lateral meniscus tear and sprain of the left knee and temporary
aggravation of degenerative joint disease of the right knee when he tripped on an uneven
1

5 U.S.C. § 8101 et seq.

sidewalk.2 It authorized left knee arthroscopic surgery performed on June 18, 2009. On
November 27, 2009 appellant returned to part-time modified work, four hours a day. He stopped
work on September 25, 2010. On January 16, 2011 OWCP placed appellant on the periodic
rolls.
In medical reports dated September 13 and November 8, 2011, Dr. Anoushiravan Ehya,
an attending Board-certified orthopedic surgeon, provided findings on physical examination and
stated that appellant was status post left knee surgery. He advised that appellant could return to
work with permanent restrictions which included no lifting, pushing or pulling greater than 20
pounds, no frequent squatting, kneeling, stair-climbing, and no prolonged standing and walking.
Appellant could not stand or walk greater than 30 minutes at any time or greater than 2 hours a
day. He should be allowed to alternate sitting and standing while performing his work duties.
On November 30, 2011 OWCP referred appellant for vocational rehabilitation services.
Appellant met with a vocational rehabilitation counselor on January 5, 2012. He underwent
vocational testing and a transferable skills analysis, which indicated, among other things, his
prior skills in telecommunications from the U.S. Army and in customer service from the
employing establishment and computer technician training. The vocational rehabilitation
counselor determined that appellant could be reemployed as an adjustment clerk (customer
complaint clerk). According to the Department of Labor’s Dictionary of Occupational Titles
(DOT), the duties of the adjustment clerk required the investigation of customer complaints
about merchandise, service, billing or credit rating; examination of records, such as bills,
computer printouts, microfilm, meter readings, bills of lading and related documents and
correspondence; conversing or corresponding with customer and other company personnel, such
as billing, credit, sales, service, or shipping, to obtain facts regarding customer complaints,
examination of pertinent information to determine accuracy of customer complaints and
responsibility for errors; and notification of customer and designated personnel of findings,
adjustments and recommendations, such as exchange of merchandise, refund of money, credit of
customer’s account or adjustment of customer’s bill.
The position also may require making recommendations for management improvements
in product, packaging, shipping methods, service or billing methods and procedures to prevent
future complaints of a similar nature; examination of merchandise to determine accuracy of
complaint; follow up on recommended adjustments to ensure customer satisfaction; keying
information into a computer to obtain computerized records; tracing missing merchandise; being
designated as a tracer clerk (clerical); investigation of overdue and damaged shipments or
shortages in shipments for common carrier and being designated as an over-short-and-damage
clerk (clerical); and being designated according to type of complaint adjusted as a bill master
(clerical), merchandise-adjustment clerk (retail trade), service investigator (utilities; telephone).
The physical requirements of the position included sedentary work with occasional lifting
up to 10 pounds; no climbing, balancing, stooping, kneeling, crouching or crawling; and
occasional reaching, handling and fingering.

2

Appellant had previously filed an occupational disease claim under File No. xxxxxx745 for a left knee injury
which OWCP denied on October 6, 2006.

2

The vocational rehabilitation counselor determined that appellant would meet the specific
vocational preparation upon completion of six to seven months of training. He also determined
that the job was performed in sufficient numbers to be reasonably available within appellant’s
commuting area. Appellant’s vocational rehabilitation counselor noted that there were seven
positions currently available and three anticipated job openings. He noted that the wage
information from the State of California Employment Development Department established that
the salary for this job in appellant’s commuting area was $12.00 an hour or $480.00 a week. The
vocational rehabilitation counselor stated that qualifications required by employers included
customer service and computer office skills. He related that his labor market survey identified
openings that did and did not require such experience. The vocational rehabilitation counselor
noted appellant’s communications center experience from the military and customer service
experience from the employing establishment and therefore, concluded that he could compete for
these openings. He concluded that appellant would be employable in the plan objective with the
proposed training.
Appellant attended medical accounting and auditing and computer training from April 9
to October 11, 2012 at Larson’s Training Centers, Inc. He successfully completed 650 hours of
required coursework and received certificates for medical claims processing, medical
terminology, computer-based business skills, MS Word levels 1 and 2, MS Excel, Access and
PowerPoint, and manual and computerized accounting. Thereafter, appellant moved to Dallas,
South Dakota. On November 15, 2012 the vocational rehabilitation counselor initiated a 90-day
placement period, but appellant did not obtain employment.
In a February 26, 2013 report, Dr. Ehya provided findings on physical and x-ray
examination. He diagnosed mild degenerative joint disease of the right knee. Dr. Ehya ruled out
internal derangement of the right knee and advised that appellant had a possible medial meniscus
tear. He reiterated his opinion that appellant could return to work with the same work
restrictions set forth in his September 13 and November 8, 2011 reports.
OWCP authorized an additional 90-day placement period, but terminated the
unsuccessful effort on April 17, 2013 and closed appellant’s rehabilitation services. The
vocational rehabilitation counselor advised that, although appellant had been cooperative and
looked for employment, he was distracted by medical issues related to his knees.
On May 6, 2013 the vocational rehabilitation counselor updated the labor market survey
for the selected adjustment clerk position due to appellant’s relocation to South Dakota. He
determined that appellant’s six- to seven-month training met the specific vocational preparation.
The vocational rehabilitation counselor further determined that the positon was reasonably
available in appellant’s commuting area. He identified 10 full-time job openings currently
available as confirmed by telephone contact with a May 2013 “CVC” Labor Market Survey for
South Dakota and data from the South Dakota Department of Labor and Regulations. The
vocational rehabilitation counselor noted that the wage information from the South Dakota
Department of Labor and Regulations established that the salary for this job in appellant’s
commuting area was $12.00 an hour or $480.00 a week. He reiterated that appellant could
compete for these job openings based on his prior communications center and customer service
experience. The vocational rehabilitation counselor concluded that appellant was employable in
the plan objective.

3

By notice dated June 19, 2013, OWCP proposed to reduce appellant’s compensation
because the factual and medical evidence established that he was no longer totally disabled. It
determined that he had the capacity to earn wages as an adjustment clerk, at the rate of $400.00
per week, in accordance with the factors outlined in 5 U.S.C. § 8115.3 OWCP calculated that his
compensation rate should be adjusted to $2,083.00 each four weeks using the formula in
Albert C. Shadrick.4 It indicated that appellant’s salary as of June 18, 2009, the date he stopped
working, was $1,032.38 per week, that his current, adjusted pay rate for his job on the date of
injury was $1,086.69 and that he was currently capable of earning $400.00 per week, the rate of
an adjustment clerk. OWCP, therefore, determined that he had a 37 percent wage-earning
capacity, an adjusted wage-earning capacity of $650.40, which when multiplied by 3/4 amounted
to a compensation rate of $487.80; increased by applicable cost-of-living adjustments to $520.75
which rendered a new gross monthly compensation rate of $2,083.00. It found the adjustment
clerk position suitable for appellant, given his work restrictions and training and was available in
his commuting area. OWCP allowed appellant 30 days to submit additional evidence or
argument regarding his capacity to earn wages in the constructed position.
In a July 10, 2013 letter, appellant contended that he was unable to perform full-time
work due to his current disability and medical problems. He noted that he had attended school
on a part-time schedule. Appellant claimed that his back and bilateral knee conditions prevented
him from normal function. He also developed severe bilateral carpal tunnel syndrome due to his
mail carrier duties and vocational training.5 Appellant indicated that he was scheduled to see a
specialist regarding this condition on July 15, 2013.
In a July 9, 2013 report, Dr. Ehya listed findings on physical examination and diagnosed
bilateral knee osteoarthritis. He reiterated his opinion that appellant could return to work with
the previous restrictions, except no prolonged standing or walking greater than 15 minutes at any
time or more than 1 hour a day.
In a July 31, 2013 decision, OWCP reduced appellant’s compensation to reflect wageearning capacity as an adjustment clerk effective July 28, 2013.
By letter dated August 7, 2013, appellant, through his attorney, requested a telephone
hearing with an OWCP hearing representative.
During a January 15, 2014 telephone hearing, appellant stated that he received benefits
from the Department of Veterans Affairs for post-traumatic stress disorder (PTSD) and hearing
loss. He contended that the selected adjustment clerk position was not vocationally or medically
suitable. Appellant stated that he had no prior work experience related to the position and thus,
he would have to receive on-the-job training. He further stated that his preexisting PTSD
affected his ability to be in public and enclosed areas. Appellant’s attorney questioned the use of
the Department of Labor, Dictionary of Occupational Titles, contending that it was no longer in
effect and that it did not reflect modern job surveys as it had not been used since 1991. He
3

5 U.S.C. § 8115.

4

5 ECAB 376 (1953).

5

On January 28, 2014 appellant filed a claim for carpal tunnel syndrome. The record does not contain a decision
regarding this claim.

4

asserted that it was junk science. Counsel contended that OWCP was aware of appellant’s
preexisting PTSD condition which prohibited appellant’s employment and it had a duty to fully
develop the facts of his case. He noted appellant’s lack of customer service experience and
questioned the availability of an adjustment clerk position in his area.
In a March 14, 2014 decision, an OWCP hearing representative affirmed the July 31,
2013 decision. He found that the medical and factual evidence of record established that the
selected adjustment clerk job was medically and vocationally suitable for appellant and fairly
and reasonably represented his loss of wage-earning capacity. The hearing representative noted
that there was no argument or evidence that the loss of wage-earning capacity determination was
erroneously calculated.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of proving that the
disability has ceased or lessened in order to justify termination or modification of compensation
benefits.6 OWCP’s burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on proper factual and medical background.7
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity or if the employee has no actual earnings, his or her wage-earning capacity is
determined with due regards to the nature of the injury, his or her degree of physical impairment,
his or her usual employment, his or her age, his or her qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his or
her wage-earning capacity in his or her disabled condition.8
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence must provide a detailed description of the condition.9 Additionally, the Board
has held that a wage-earning capacity determination must be based on a reasonably current
medical evaluation.10
OWCP’s procedure instructs that, in cases where a claimant has undergone vocational
rehabilitation, the vocational rehabilitation counselor will submit a final report to the vocational
rehabilitation specialist summarizing why vocational rehabilitation was unsuccessful and listing
two or three jobs which are medically and vocationally suitable for the claimant. Where no
vocational rehabilitation services were provided, the vocational rehabilitation specialist will have
6

Bettye F. Wade, 37 ECAB 556 (1986); Ella M. Gardner, 36 ECAB 238 (1984).

7

See Del K. Rykert, 40 ECAB 284 (1988).

8

5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; see Pope D. Cox, 39 ECAB 143 (1988).

9

William H. Woods, 51 ECAB 619 (2000).

10

John D. Jackson, 55 ECAB 465 (2004).

5

provided the report. Included will be the corresponding job numbers from DOT (or OWCP
specified equivalent) and pay ranges in the relevant geographical area.11 Once this selection is
made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employee service or other applicable service. Finally, application
of the principles set forth in the Shadrick12 decision will result in the percentage of the
employee’s loss of wage-earning capacity.
In determining an employee’s wage-earning capacity based on a position defined suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from postinjury or subsequently acquired conditions. Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation.13 Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.14
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s monetary
compensation based on his capacity to earn wages as an adjustment clerk.
The Board finds that the medical evidence establishes that the physical demands of the
constructed position were within appellant’s medical restrictions. The position was sedentary
and required occasional lifting up to 10 pounds, no climbing, stooping, kneeling, crouching or
crawling. Dr. Ehya, an attending physician, restricted appellant from lifting more than 20
pounds, frequent squatting, kneeling or stair-climbing and standing and walking more than 15
minutes at a time or more than 1 hour a day. Appellant had the appropriate training for the
position as he received training through the vocational rehabilitation process at Larson’s Training
Centers, Inc. and earned certificates for medical claims processing, medical terminology,
computer-based business skills, MS Word levels 1 and 2, MS Excel, Access and PowerPoint, and
manual and computerized accounting. The vocational rehabilitation counselor conducted a
search and determined that the selected job was available in sufficient numbers in both California
where appellant had lived, and South Dakota, where he had relocated so as to make it reasonably
available to him in his commuting area. He determined that the hourly rate for an entry-level
position was $12.00 or $480.00 a week.15 The fact that appellant was unable to obtain an

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity
Based on a Constructed Position, Chapter 2.816.5 (June 2013).
12

Supra note 4; 20 C.F.R. § 10.403.

13

James Henderson, Jr., 51 ECAB 619 (2000).

14

Albert L. Poe, 37 ECAB 684 (1986); David Smith, 34 ECAB 409 (1982).

15

Rehabilitation counselors are experts in the field of vocational rehabilitation and OWCP may rely on his or her
opinion as to whether a job is reasonably available and vocationally suitable. See Lawrence D. Price, 54 ECAB 590
(2003); Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.816.6b (June 2013).

6

adjustment clerk position does not establish that the work is not reasonably available in his
commuting area.16
The Board finds that OWCP considered the proper factors, such as availability of suitable
work and appellant’s physical limitations, usual employment and age and employment
qualifications in determining that the position of adjustment clerk represented his wage-earning
capacity.17 OWCP used the information provided by the vocational rehabilitation counselor of
the prevailing wage rate in the area for an adjustment clerk and established that jobs in the
position were reasonably available in the general labor market in the geographic commuting area
in which the employee lived. The weight of the evidence of record establishes that appellant had
the requisite physical ability, skill and experience to perform the position of adjustment clerk and
that the positon was reasonably available within the general labor market of appellant’s
commuting area.
Appellant contended that he was not vocationally qualified to work as an adjustment
clerk as he had no prior work experience in this position. A review of the vocational
rehabilitation counselor’s reports showed that appellant’s prior military communications
experience, customer service experience from the employing establishment and computer
technician training, and successful completion of training as a part of his vocational
rehabilitation established that the adjustment clerk position was suitable for him.
Appellant further contended that he was medically unable to perform the duties of the
selected position due to his back, bilateral knee and preexisting PTSD conditions. However, he
did not submit any rationalized medical evidence supporting his contention. The Board notes
that Dr. Ehya, appellant’s own attending physician, opined that appellant could return work with
restrictions.
Appellant contended that OWCP improperly utilized the DOT as it was outdated and no
longer in use and thus, it was junk science. The Board notes that FECA procedure manual
clearly states that the vocational counselor shall include in his or her report the DOT description
of all the duties and physical requirements of each job.18
OWCP properly applied the principles set forth in Shadrick19 to determine appellant’s
employment-related loss of wage-earning capacity. It calculated that his compensation rate
should be adjusted to $487.80 using the Shadrick formula. OWCP used appellant’s capacity to
earn $400.00 per week, the rate of an adjustment clerk and a current pay rate for his date-ofinjury job of $1,086.69 to determine that he had a 37 percent wage-earning capacity or 63
percent loss of wage-earning capacity. It then multiplied the pay rate at the time his disability
began on June 18, 2009, $1,032.38, by the 37 percent wage-earning capacity figure. The
resulting figure of $381.98 was subtracted from appellant’s disability pay rate of $1,032.38 to
16

See Leo A. Chartier, 32 ECAB 652, 657 (1981); Federal (FECA) Procedure Manual, supra note 11 at Chapter
2.816.6c (June 2013).
17

D.W., Docket No. 14-347 (issued June 4, 2014).

18

See Federal (FECA) Procedure Manual, supra note 11 at Chapter 2.816.4a (June 2013); see also T.G., Docket
No. 14-921 (issued September 17, 2014).
19

Supra note 4.

7

yield his loss of wage-earning capacity of $650.40. OWCP multiplied this amount by the
appropriate compensation rate of three-fourths, to yield $487.80 and then increased this amount
by applicable cost-of-living adjustments to $520.50 rendering the new monthly gross
compensation rate to be $2,082.00.20 The Board finds, therefore, that OWCP properly
determined that the position of adjustment clerk reflected appellant’s wage-earning capacity and
using the Shadrick formula, properly reduced his compensation effective July 28, 2013.
Appellant may request a modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation benefits
effective July 28, 2013, based on his capacity to earn wages in the constructed position of
adjustment clerk.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

20

The Board notes that appellant’s potential earnings had been $480.00 but OWCP utilized $400.00 as the
potential earnings. The final compensation rate was reduced by $1.00 from the proposed wage-earning capacity due
to a change in deductions.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, ADMINISTRATION FOR
CHILDREN & FAMILIES, Mount Laurel, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 14-1839
Issued: January 8, 2015

Case Submitted on the Record

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

JURISDICTION
On August 18, 2014 appellant filed a timely appeal from the February 21 and July 25,
2014 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP) denying
his requests for reconsideration. The last merit decision in this case was issued on
November 8, 2013. Since more than 180 days have elapsed since the last merit decision of
November 8, 2013 and the filing of this appeal, and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that the medical evidence establishes that he suffers from
carpal tunnel syndrome causally related to his federal employment.
FACTUAL HISTORY
On August 12, 2013 appellant, then a 63-year-old program specialist, filed an
occupational disease claim alleging that, as a result of his federal duties which involved
significant repetitive movements including typing, using a mouse, and inputting data into the
computer, he developed carpal tunnel syndrome.
By decision dated November 8, 2013, OWCP denied appellant’s claim as he failed to
establish a causal connection between the accepted duties of his federal employment and his
diagnosed carpal tunnel syndrome. In reaching its decision, it reviewed various medical reports
including a September 25, 2013 note by Dr. John S. Taras, a Board-certified orthopedic surgeon
with a Board-certified subspecialty in surgery of the hand, who reported that he was treating
appellant for bilateral carpal tunnel symptoms resulting from his job duties involving “a
significant amount of repetitive movements such as long periods of typing and use of a mouse.”
On January 16, 2014 appellant requested reconsideration. He contended that the medical
evidence established that he had carpal tunnel syndrome causally related to his federal
employment. Appellant resubmitted the September 25, 2013 note by Dr. Taras along with a
January 3, 2014 work/activity status form wherein Dr. Taras marked a box indicating that
appellant could work full duty with no restrictions.
By decision dated February 21, 2014, OWCP denied appellant’s request for
reconsideration without conducting a merit review.
On April 21, 2014 appellant again requested reconsideration. In a letter almost identical
to the letter of January 16, 2014, he reargued that the medical evidence supported that he
sustained carpal tunnel syndrome causally related to the duties of his federal employment.
Appellant resubmitted the September 25, 2013 note by Dr. Taras.
By decision dated July 25, 2014, OWCP denied appellant’s reconsideration request
without conducting a merit review of the evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
2

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

20 C.F.R. § 10.606(b)(3).

2

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.6
ANALYSIS
By decision dated November 8, 2013, OWCP denied appellant’s claim for compensation,
as it determined that appellant had failed to establish a causal connection between the accepted
duties of his federal employment and his diagnosed carpal tunnel syndrome. Appellant requested
reconsideration on January 16 and April 21, 2014. His requests for reconsideration were denied
in decisions dated February 21 and July 25, 2014.
On appeal, appellant argues the merits of his claim, i.e., he contends that the medical
evidence supports that he suffered from carpal tunnel syndrome causally related to his federal
employment. However, as noted previously, as the last merit decision, dated November 8, 2013,
was issued more than 180 days before the filing of this appeal on August 18, 2014, the Board is
precluded from considering the merits of the claim on appeal.7
The threshold issue to be resolved is whether appellant established that his carpal tunnel
syndrome was causally related to the accepted factors of his federal employment. This was a
medical issue which must be addressed by pertinent new and relevant medical evidence.8 The
only new evidence submitted by appellant on reconsideration was a January 3, 2014
work/activity status form signed by Dr. Taras indicating that appellant could work full duty with
no restrictions. The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.9 As the work/activity
status form does not address the issue of causal relationship, it does not constitute a basis for
reopening appellant’s case. Appellant also resubmitted the September 25, 2013 report by
Dr. Taras, a report previously considered by OWCP when it denied appellant’s claim. Evidence

4

Id. at § 10.607(a).

5

20 C.F.R. § 10.608(b).

6

T.E., Docket No. 14-1047 (issued October 9, 2014).

7

See 20 C.F.R. § 501.3(e); see also A.B., Docket No. 13-1465 (issued June 4, 2014).

8

See J.S., Docket No. 14-465 (issued October 16, 2014).

9

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).

3

that repeats or duplicates evidence already in the case record has no evidentiary value and does
not constitute a basis for reopening a case.10
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or
constitute pertinent new and relevant evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 25 and February 21, 2014 are affirmed.
Issued: January 8, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

P.B., Docket No. 14-908 (issued October 9, 2014).

4


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Shaker Heights, OH, Employer
)
___________________________________________ )
S.T., Appellant

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

Docket No. 15-0207
Issued: July 9, 2015

Case submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2014 appellant, through counsel, filed a timely appeal from an
August 27, 2014 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 on appeal is whether appellant met his burden of proof to establish a recurrence
of disability on April 18, 2013 causally related to his August 31, 2011 employment injury.
FACTUAL HISTORY
OWCP accepted that on August 31, 2011 appellant, then a 51-year-old, letter carrier, fell
down stairs and scraped his hands and left knee in the performance of duty. It accepted his claim
1

5 U.S.C. § 8101 et seq.

for contusion of the left wrist and elbow. Appellant returned to a limited-duty position on
December 17, 2011. He received compensation benefits.
Initial medical reports noted that appellant had a prior history of bilateral carpal tunnel
syndrome. X-rays were normal. Appellant received treatment from Dr. Nader Paksima, an
osteopath specializing in hand and orthopedic surgery. On January 18, 2012 Dr. Paksima
requested authorization for surgery for the basal joint with or without ligament reconstruction
and pinning. He continued to treat appellant and submit reports. In an April 17, 2013 report,
Dr. Paksima noted that surgical authorization had been denied. He explained that appellant’s
condition was worsening and he had increased pain, numbness, and tingling in his left hand.
Dr. Paksima examined appellant and found a positive basal joint grind test and positive signs of
carpal tunnel syndrome on the left side. He recounted that on August 31, 2011 appellant’s
history of injury included a fall on outstretched hands. Dr. Paksima referred to thumb x-rays,
which showed an incongruous basal joint with secondary changes most likely related to some
type of a traumatic event. He opined that appellant needed a basal joint arthroplasty in the form
of trapezium excision with or without a ligament reconstruction. Dr. Paksima opined that “[i]n
my opinion, the injury is consistent with his work injury [of] August 31, 2011, and based upon a
reasonable degree of medical certainty, it appears to be related to that work[-]related incident.”
He explained that appellant’s clinical findings indicated carpal tunnel syndrome on the left side.
Dr. Paksima suggested a carpal tunnel release to be performed at the same time as his other left
hand surgery. He advised that appellant’s last electromyogram (EMG) study was in 2011 and
that a new one was needed to review the median nerve in the left hand. In reports dated May 29
through July 31, 2013, Dr. Paksima continued to recommend surgery. He stated that the basal
joint problem and the need for surgery were related to his job-related injury of August 31, 2011.
On April 18, 2013 appellant stopped work completely and filed a recurrence of disability
alleging that on August 8, 2013 he had sustained a recurrence of his August 31, 2011 injury. He
noted that, after the injury, he was on limited duty working six hours, then five hours, and then
down to three hours per day. Appellant explained that on April 18, 2013 he was no longer
working at all due to pain. He reported that he had no feeling in his left hand and wrist.
In a September 3, 2013 report, Dr. Paksima noted that appellant could return to light duty
on September 5, 2013 and resume work with the use of his left hand. In a September 16, 2013
report, Dr. Paksima repeated his request for authorization of surgery because appellant’s
condition was related to his work injury.
In a letter dated September 30, 2013, OWCP advised appellant of the additional factual
and medical information needed to establish his claim for a recurrence.2 It explained that,
following the original injury, appellant returned to limited-duty work on December 17, 20113
In an October 2, 2013 report, Dr. Paksima noted that appellant had pain in his left wrist
and base of the thumb. He indicated that on the right side appellant experienced numbness and
2

In a separate September 30, 2013 decision, OWCP denied authorization for the surgery to the left hand. It noted
that the diagnoses for arthritis and carpal tunnel syndrome were not causally related.
3

Although 2013 was indicated, this is a typographical error.

2

tingling. Dr. Paksima related that appellant had returned to work due to “financial reasons, albeit
with pain” and wore a wrist splint to work. He found that, on the left side, appellant had
instability at the base of the thumb and pain over the basal joint. There was also a palpable,
audible, visible popping that occurred when appellant moved his thumb from joint subluxation.
Dr. Paksima found a positive basal joint grind test.
Regarding the right wrist, Dr. Paksima found a positive carpal tunnel compression test,
positive Tinel test, 5/5 muscle strength with no sign of atrophy and a positive Phalen test. He
again opined that the injury was “consistent with his work injury of [August 31, 2011] and based
on the reasonable degree of medical certainty, it appears to be related to that work-related
incident.” Dr. Paksima continued to treat appellant and submitted reports.
In a decision dated November 19, 2013, OWCP denied appellant’s claim for a recurrence
of disability. It found that the evidence failed to establish that he was disabled, or further
disabled, due to a material change of the accepted conditions. By letter dated November 25,
2013, counsel requested a hearing.
In a letter dated April 14, 2014, counsel requested that the claim be expanded.
In an April 30, 2014 report, Dr. Paksima noted continued pain in appellant’s basal joint.
He found crepitus, a snapping tendon and found that the extensor pollicis longus tendon was
subluxating. Dr. Paksima related that appellant’s condition was worsening. He referred to
recent x-rays which revealed a progressive worsening, including post-traumatic arthritis,
subluxation, and bone spur formation in the basal joint of the thumb.
By letter dated May 1, 2014, OWCP referred appellant for a second opinion examination
with Dr. Leon Sultan, a Board-certified orthopedic surgeon, with regard to the relationship of the
left thumb condition to the accepted injury.
In a May 15, 2014 report, Dr. Sultan noted appellant’s history of injury and treatment and
conducted an examination. He provided findings for the left thumb and hand, which included
mild swelling of the left thumb, especially at the basal region. Dr. Sultan found basal thumb
crepitus on the left during range of motion testing. He also examined the left elbow and left knee
which were unremarkable. Dr. Sultan noted that the contusions to the left elbow and left knee
were causally related, but there was no residual orthopedic disability. He determined that
appellant was postcontusion to the left elbow and left knee with blunt trauma to the left wrist,
thumb, and hand. Dr. Sultan opined that his orthopedic examination failed to confirm any
ongoing carpal tunnel syndrome. He diagnosed post-traumatic left basal thumb arthrosis with
probable instability and subluxation of the extensor pollicis longus tendon.
Dr. Sultan opined that appellant’s left basal thumb condition and wrist condition and the
need for surgery were causally related to the accepted injury. He confirmed that appellant was in
need of surgery at the base of the left thumb for repair of the subluxing extensor pollicis longus
tendon and stabilization of the left basal thumb articulation. Dr. Sultan provided a work capacity
evaluation indicating that appellant could work up to five hours per day with limitations on
pushing, pulling, and lifting.

3

The hearing was held on June 10, 2014. During the hearing, appellant confirmed that,
prior to stopping work, he had worked five hours per day and was provided three hours
compensation from OWCP. He stated that, after returning to work, he only worked four hours
per day because going out to the street for delivery was too painful.
In a letter dated June 25, 2014, appellant’s representative noted that Dr. Sultan’s report
revealed that his injury was severe and should be expanded to include the conditions identified
stated in the report.
Dr. Paksima continued to treat appellant and submit reports in which he continued to
request surgery to include a left basal joint arthroplasty with possible ligament reconstruction.
He noted that appellant continued to work light duty with a 10-pound lifting restriction, however,
he related that appellant reported that he routinely had to lift boxes weighing up to 50 pounds at
work. This caused significant pain. In an August 6, 2014 duty status report, Dr. Paksima
indicated that appellant was able to perform light duty for eight hours per day to include a 10pound lifting restriction.
In an August 27, 2014 decision, the hearing representative affirmed the November 19,
2013 decision. Regarding the thumb condition and surgery, she found that this was a separate
issue that remained before OWCP and that it was not considered or denied in the prior decision.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provides that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. The term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties, or a reduction-in-force), or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.6 This consists of a physician’s
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

6

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

4

rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.7 The physician’s
opinion 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.8
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.9
ANALYSIS
Appellant’s claim was accepted for contusion of the left wrist and elbow. He returned to
a limited-duty position on December 17, 2011. On April 18, 2013 appellant stopped work
completely and claimed a recurrence of total disability. On September 30, 2013 OWCP advised
him of the type of medical and factual evidence needed to establish his claim for a recurrence of
disability.
Appellant has not alleged a change in the nature and extent of his light-duty job
requirements. He must offer medical evidence that he became disabled again due to a
spontaneous worsening of his accepted work-related conditions.10
However, appellant did not submit any medical evidence to support that he was disabled
due to a worsening of his accepted work-related conditions. The record contains numerous
reports dating from January 18, 2012 to August 6, 2014 from Dr. Paksima. However,
Dr. Paksima reports tend to support expansion of the claim and a need for surgery. They do not
offer any opinion that appellant had increased disability due to a worsening of his accepted
contusions. The Board notes that Dr. Paksima did not opine in any of his reports that appellant
had a recurrence of disability from his accepted contusions. Dr. Paksima did not offer any
opinion to explain why appellant was unable to perform his part-time limited-duty position,
because of the accepted contusion injuries. Thus, his reports are of insufficient to establish a
recurrence of disability due to the accepted contusions.
In a May 15, 2014 report, Dr. Sultan, the second opinion physician supported the need for
surgery and that appellant’s left basal thumb condition was causally related to the work injury.
However, OWCP has not adopted Dr. Sultan’s opinion and expanded the claim to include
additional medical conditions.

7

Duane B. Harris, 49 ECAB 170, 173 (1997).

8

Gary L. Fowler, 45 ECAB 365, 371 (1994).

9

Walter D. Morehead, 31 ECAB 188 (1986).

10

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

5

Appellant did not establish that there was a change in the nature or extent of the accepted
injury-related condition or a change in the nature and extent of the light-duty requirements,
which would keep him from performing his light-duty position.
The reports of Drs. Paksima and Sultan concur that appellant’s left basal thumb condition
is due to the employment injury. As the August 27, 2014 decision did not rule on this particular
matter, it is not presently before the Board.11
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on April 18, 2013 causally related to his August 31, 2011 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2015
Washington, DC

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

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

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

11

See 20 C.F.R. § 501.2(c). The Board has noted that on April 14 and June 25, 2014, appellant requested that his
claim be expanded to include the thumb and wrist conditions diagnosed, and found to be causally related, by
Dr. Paksima and Dr. Sultan. Appellant has repeatedly requested authorization for surgery recommended by
Dr. Paksima and Dr. Sultan. The expansion of appellant’s claim and authorization for surgery are clearly before
OWCP and should be decided without further delay.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY,
San Bernardino, CA, Employer
__________________________________________

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

Docket No. 14-1089
Issued: September 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 10, 2014 appellant filed a timely appeal from a January 23, 2014 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 her burden of proof to establish a left hip condition
causally related to factors of her federal employment.
FACTUAL HISTORY
On November 27, 2013 appellant, then a 43-year-old mail clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed a mass on her left hip as a result of
1

5 U.S.C. § 8101 et seq.

moving bundles and pallets, lifting trays of letters and parcels and pushing and pulling
equipment. She became aware of her condition and of its relationship to her employment on
November 18, 2013. The employing establishment did not note a date of work stoppage and
checked a box indicating “no” to the question of whether medical reports showed that appellant
was disabled for work.
On July 27, 2012 Dr. Michael B. Roach, a Board-certified orthopedic surgeon, diagnosed
lumbago. He noted pain of the joint of the pelvic region and thigh. Dr. Roach stated that
appellant was treated for lower back pain. He noted that this was a recurrent problem, with
aching pain in the lower back radiating to the left thigh. Dr. Roach stated that appellant worked
as a postal employee. He noted that x-rays of the left hip showed no arthritis, while x-rays of the
lumbar spine were also normal. Dr. Roach assessed appellant with intermittent low back pain,
probably related to early lumbar spondylosis.
In a report dated October 30, 2012, Dr. Roach assessed appellant with intermittent lower
back pain. He noted that she worked for the employing establishment and that vigorous work
there occasionally aggravated her back. Dr. Roach recommended that appellant perform
flexibility exercises and work on an elliptical trainer.
In a report dated July 10, 2013, Dr. Michael T. Mai, a Board-certified orthopedic
surgeon, diagnosed appellant with lumbar radiculopathy and degenerative joint disease of the left
hip. He noted that she had no prior history of injury of the left hip or history of preventative
surgery. Dr. Mai stated that the pain was worse with activities and better at rest. On
examination, he noted pain with hip flexion. Dr. Mai assessed appellant as having possible
avascular necrosis of the left hip joint or a possible labral tear. He recommended a magnetic
resonance imaging (MRI) scan.
In a report dated July 30, 2013, Dr. Dina Ragheb, a Board-certified radiologist, reviewed
the results of an MRI scan obtained that date. She noted a two centimeter (cm) oval-shaped
lesion lateral to the quadriceps tendons between the gluteus musculature and the quadratus
femoris in the left hip. Dr. Ragheb stated that it represented either a complex fluid collection or
solid mass including a nerve sheath tumor. On examination of the pelvis, she found probable
subserosal fibroid and a complex lesion in the left adnexa, likely a complex cyst. Dr. Ragheb
recommended another MRI scan of the left hip with intravenous gadolinium and a pelvic
ultrasound for further evaluation.
On August 23, 2013 Dr. Mai stated that appellant could return to light-duty immediately,
with restrictions of no heavy lifting and no constant standing or walking.
In a report dated September 9, 2013, Dr. Ragheb examined the results of an MRI scan
with contrast obtained that date. She found an 18 millimeter oval-shaped solid lesion lateral to
the left quadriceps tendons between the gluteal musculature and quadratus femoris muscle,
which she stated could represent a nerve sheath tumor. Dr. Ragheb also found a fibroid uterus,
with a one cm lesion in the left adnexa.
In notes dated November 18, 2013, Dr. Mohammed K. Shahin, a Board-certified
internist, reviewed the MRI scans from July 26 and September 5, 2013. He assessed appellant

2

with left hip pain and a mass of the left hip region, possibly on the nerve sheet. Dr. Shahin noted
that her pain was aggravated by lifting, pushing or carrying heavy objects.
On December 10, 2013 OWCP advised appellant of the evidence needed to establish her
claim. It requested that she respond to its inquiries and submit a comprehensive medical report
from an attending physician with a description of symptoms, results of examinations and tests,
diagnoses, the clinical course of treatment provided, a description of her medical history along
with the history of her employment exposure and nonemployment activities that contribute to the
condition. OWCP requested a physician’s opinion supported by a medical explanation as to
whether her work-related exposure resulted in the diagnosed condition. Appellant resubmitted
the November 18, 2013 notes of Dr. Shahin and copies of her MRI scans.
In a January 7, 2014 report, Dr. Shahin reviewed appellant’s medical history. He
diagnosed a nerve sheath tumor of the left hip, left hip pain, degenerative joint disease,
gastroesophageal reflux disease, anxiety associated with depression and stable major depressive
disorder. Dr. Shahin noted that persistent pain and numbness in the left hip area was aggravated
by heavy lifting or squatting.
Appellant responded to OWCP’s inquiries on January 8, 2014. She stated that, in 2010,
she noticed a throbbing and stabbing pain on her left hip, which became worse over time.
Appellant also experienced weakness of the left leg and numbness down to the tip of the left foot
and stated that constant lifting and/or heavy lifting made it worse.
By decision dated January 23, 2014, OWCP denied appellant’s claim. It found that the
medical evidence did not establish that she had been diagnosed with a condition in connection
with factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

3

which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.4 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
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 weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS
OWCP accepted that appellant established the employment exposures of repetitive lifting
and walking as a mail clerk. The Board finds that she has not submitted sufficient medical
evidence to establish that her left hip condition was caused or aggravated by factors of her
federal employment.
In a January 7, 2014 report, Dr. Shahin reviewed appellant’s medical history and
diagnosed a nerve sheath tumor of the left hip. This diagnosis was supported by several
diagnostic MRI scan studies obtained by Dr. Ragheb, who found a solid lesion lateral to the left
quadriceps tendons between the gluteal musculature and quadratus femoris muscle.
Appellant has not submitted sufficient evidence to establish that her left hip condition
was caused or aggravated by factors of her federal employment. While Dr. Roach mentioned
that she worked at the employing establishment as a postal employee and that, vigorous work
4

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

5

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

7

Leslie C. Moore, 52 ECAB 132, 134 (2000).

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

4

occasionally aggravated her back, he did not offer a clear opinion regarding the causal
relationship of her left hip condition. There are no other reports of record that provided a
physician’s opinion on the issue of a causal relationship between appellant’s left hip condition
and work-related factors. Medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.9 The reports are not sufficient to meet appellant’s burden to establish a causal
relationship between work-related factors and her claimed injury.
The Board finds that the medical evidence does not establish that appellant sustained a
left hip injury causally related to her employment. 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 the belief that her condition was caused,
precipitated or aggravated by her employment, is sufficient to establish causal relationship.10
Causal relationships must be established by rationalized medical opinion evidence.
Consequently, OWCP properly found that appellant did not meet her burden of proof in
establishing her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed left hip condition was causally related to her federal employment.

9

Michael E. Smith, 50 ECAB 313, 316 n.8 (1999).

10

See Dennis M. Mascarenas, supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the January 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6