United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 08-2296
Issued: September 24, 2009

Case Submitted on the Record

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

JURISDICTION
On August 20, 2008 appellant, through her attorney, filed a timely appeal from a July 28,
2008 decision of an Office of Workers’ Compensation Programs’ hearing representative
affirming that the constructed position of information clerk represented her wage-earning
capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of this claim.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
March 16, 2008 based on its determination that the constructed position of information clerk
represented her wage-earning capacity.
FACTUAL HISTORY
On June 16, 2004 appellant, then a 44-year-old transportation security screener, twisted
her left ankle while retrieving a bag from the rollers. The Office accepted the claim for left ankle

tibiofibular strain and chronic left posterior tibial tendinitis. It accepted appellant’s claims for
recurrences beginning March 15, 2005 and April 27, 2006. By letter dated March 8, 2007, the
Office placed appellant on the periodic rolls for temporary total disability.
In an April 28, 2006 work capacity evaluation form, Dr. Kimberly A. Adams, a treating
Board-certified family practitioner, released appellant to work full time with restrictions.
Appellant was limited to seven hours of sitting, one hour of walking, one hour of standing, no
bending or stooping, no squatting, no kneeling and no climbing.
In a February 28, 2007 work capacity evaluation form, Dr. Roger A. Fontes, Jr., a treating
Board-certified orthopedic surgeon, advised that appellant was capable of working eight hours
and had permanent work restrictions. Appellant’s limitations included 8 hours of sitting, 1/2
hour of walking, 1/2 hour of standing, 8 hours of reaching and twisting, 1 hour of bending or
stooping, 8 hours of repetitive wrist and elbow movements, 2 hours of lifting up to 20 pounds
and no squatting, kneeling or climbing.
On March 15, 2007 the Office referred appellant to vocational rehabilitation. On
March 27, 2007 the employing establishment advised the Office that it was unable to provide
employment within appellant’s restrictions. On April 21, 2007 the rehabilitation counselor,
determined that appellant’s medical restrictions would allow her to perform various clerical
positions, including receptionist, reservation clerk or information clerk. The positions were
identified as sedentary and found reasonably available in appellant’s commuting area on a fulltime basis.
On April 26, 2007 Dr. Fontes reviewed the job descriptions. He indicated that appellant
could perform any of the three positions for eight hours per day.
In a letter dated May 9, 2007, the Office notified appellant that the vocational
rehabilitation plan and the jobs identified were within her work limitations. It advised that, after
the necessary training or other preparation was completed, she would be provided with 90 days
of placement services. At the end of the rehabilitation program, whether appellant was employed
or not, it would reduce her compensation based on her wage-earning capacity. The record
indicates that appellant completed a computer application training course on July 6, 2007 and
began pursuing a job search.
On August 13, 2007 Dr. Fontes advised that he was modifying his prior work capacity
report. He released appellant to four hours per day of sedentary work. Restrictions included
sitting up to four hours per day and no standing.
In a November 18, 2007 memorandum, the rehabilitation counselor advised that an
updated labor market survey revealed the market was favorable for the positions of information
clerk.1 She noted that this position was vocationally appropriate and readily available in
sufficient numbers in appellant’s commuting area. The rehabilitation counselor provided a job
description for the position of an information clerk Department of Labor, Dictionary of
1

The rehabilitation counselor noted that the position of reservation clerk was also available and vocationally
appropriate. She noted that the availability for an information clerk was greater than that for the reservation clerk.

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Occupational Titles (DOT) No. 238.362.022 at a weekly wage of $420.00. She noted that the
selected position was sedentary.
In a December 14, 2007 memorandum of telephone call, the employing establishment
advised that, as of December 14, 2007, the current pay for appellant’s date-of-injury position of
transportation security screener would be $28,569.00.
In a January 24, 2008 wage-earning capacity memorandum, the Office noted that
appellant’s date-of-injury weekly pay was $533.04. The current weekly pay rate for appellant’s
job and step when injured was $568.86.
On January 24, 2008 the Office issued a notice of proposed reduction of compensation on
the grounds that the evidence established that appellant was no longer totally disabled and had
the capacity to earn wages as an information clerk at the rate of $420.00 per week. It noted that
the position was in compliance with Dr. Fontes’ restrictions. Appellant did not respond to the
proposed reduction of compensation.
In a January 25, 2008 closure memorandum, the rehabilitation specialist noted that on
April 26, 2006 Dr. Fontes had reviewed the position description and physical requirements for
the position of information clerk. Dr. Fontes approved the position and indicated that appellant
was capable of performing the job full time. The rehabilitation specialist noted that the position
was vocationally appropriate and readily available in sufficient numbers in appellant’s
commuting area. She noted that the selected position was sedentary and provided the job duties
for the position. The rehabilitation specialist did not address the August 13, 2007 report of
Dr. Fontes.
By decision dated March 3, 2008, the Office adjusted appellant’s compensation benefits
to reflect her wage-earning capacity as an information clerk effective March 16, 2008.
On March 9, 2008 appellant’s counsel requested a telephonic hearing regarding the
reduction of her wage-loss compensation, which was held on June 3, 2008.
By decision dated July 28, 2008, an Office hearing representative affirmed the March 3,
2008 loss of wage-earning capacity decision.2
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 An injured employee who is either unable to return to
2

On July 23, 2008 the Office issued a decision denying appellant’s claim for 17.25 hours of wage loss for the
period September 4 to 8, 2005. On July 26, 2008 appellant’s counsel requested a telephonic hearing on this issue.
As of August 20, 2008, the date of appellant’s appeal to the Board, no decision had been issued by an Office hearing
representative on this issue. In addition, appellant filed a claim for a schedule award. However, no final decision
has been issued on her schedule award request. There shall be no appeal with respect to any interlocutory matter
disposed of during the pendency of the case. 20 C.F.R. §§ 501.2(c); Jennifer A. Guillary, 57 ECAB 485 (2005).
3

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006).

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the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.4
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee, if the earnings fairly and
reasonably represent her wage-earning capacity. If the actual earnings do not fairly and
reasonably represent the employee’s wage-earning capacity or if the employee has no actual
wages, the wage-earning capacity is determined with due regard to the nature of the injury, the
degree of physical impairment, the employee’s usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect her wage-earning capacity in her disabled condition.5
The Office must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects her vocational wage-earning capacity. The
Board has stated that the medical evidence upon which the Office relies must provide a detailed
description of appellant’s condition.6 Additionally, the Board has held that a wage-earning
capacity determination must be based on a reasonably current medical evaluation.7
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, DOT or otherwise available in the open
market, that fit the employee’s capabilities with regard to her physical limitations, education, age
and prior experience. Once this selection is made, a determination of wage rate and availability
in the labor market should be made through contact with the state employment service or other
applicable service. Finally, application of the principles set forth in Albert C. Shadrick8 and
codified by regulations at 20 C.F.R. § 10.4039 should be applied. Subsection (d) of the
regulations provide that the employee’s wage-earning capacity in terms of percentage is obtained
by dividing the employee’s actual earnings or the pay rate of the position selected by the Office,
by the current pay rate for the job held at the time of the injury.10
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, the Office must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
4

20 C.F.R. §§ 10.402, 10.403.

5

5 U.S.C. § 8115(a); see N.J., 59 ECAB ___ (Docket No. 07-45, issued November 14, 2007); T.O., 58
ECAB ___ (Docket No. 06-1458, issued February 20, 2007); Dorothy Lams, 47 ECAB 584 (1996).
6

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

7

Carl C. Green, Jr., 47 ECAB 737 (1996).

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5 ECAB 376 (1953).

9

20 C.F.R. § 10.403.

10

Id. at § 10.403(d).

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resulting from postinjury or subsequently acquired conditions.11 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. 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.12
ANALYSIS
By letter dated March 8, 2007, the Office accepted that appellant sustained left ankle
tibiofibular strain and chronic left posterior tibial tendinitis due to a June 16, 2004 employment
injury and placed her on the periodic rolls for temporary total disability. It reduced her
compensation based on its finding that she had the capacity to earn wages in the selected position
of information clerk.
In an April 28, 2006 work capacity evaluation form, Dr. Adams, a treating Boardcertified family practitioner, released appellant to work full time with restrictions. The
restrictions included seven hours of sitting, one hour of walking, one hour of standing, no
bending or stooping, no squatting, no kneeling and no climbing. On February 28, 2007
Dr. Fontes, a treating Board-certified orthopedic surgeon, determined that appellant had
permanent work restrictions and was capable of working an eight-hour day. The vocational
rehabilitation expert found that the sedentary position of information clerk was suitable to
appellant’s medical restrictions. She forwarded copies of the position descriptions for jobs she
identified to Dr. Fontes for his review. On April 26, 2007 Dr. Fontes advised that appellant was
capable of performing any of the identified positions for eight hours. However, in an August 13,
2007 report, he modified appellant’s restrictions to light duty with no sitting more than four
hours per day and no standing more than four hours per day.
The Board finds that the Office failed to establish that appellant was capable of
performing the duties of the selected position full time. Once the Office undertakes development
of the record, it must do a complete job in procuring medical evidence that will resolve the
relevant issues in the case.13 It relied upon the opinion of Dr. Fontes to determine appellant’s
capacity to perform the selected position. The Office had an obligation to seek clarification from
Dr. Fontes as to the number of hours she was capable of working in view of his August 13, 2007
report, which modified his approval of full-time work to part-time work.14 In approving the
selected position, the Office merely noted that the August 13, 2007 report was insufficient to
establish that appellant was incapable of performing the full-time duties. The Office did not

11

James Henderson, Jr., 51 ECAB 268 (2000).

12

Id.

13

Richard F. Williams, 55 ECAB 343 (2004).

14

Ayanle A. Hashi, 56 ECAB 234 (2004); Mae Z. Hackett, 34 ECAB 1421 (1983) (where the Office referred a
claimant for a second opinion physician and the report did not adequately address the relevant issues, the Office
should secure a report on the relevant issues).

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request clarification from Dr. Fontes. It has not met its burden of proof to establish appellant’s
capacity to perform full-time work.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in reducing appellant’s
wage-loss compensation benefits effective March 16, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 28, 2008 is reversed.
Issued: September 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Syracuse, NY, Employer
__________________________________________

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Appearances:
Christina Faliero, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1142
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On July 22, 2021 appellant filed a timely appeal from a May 25, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 8, 2020, to the filing of this appeal, 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.3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 25, 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell
on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with
his right leg slid backwards behind him and felt immediate discomfort in the area of the right
posterior hip. Appellant did not stop work.
In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified
orthopedic surgeon, indicated that appellant related complaints of right hip pain , which he
attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted
that he experienced immediate pain in the posterior right hip and, on physical examination, he
documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with
hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and
femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of
potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance
imaging (MRI) scan of the right hip.
A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild
osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common
hamstring origin.
In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results
and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal
hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the
injury. Dr. Clarke recommended physical therapy and medication.
In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary, including a
narrative medical report from his treating physician containing a detailed description of findings
and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his
medical conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a
physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic
exercises and modalities. Additional notes dated October 3 through November 5, 2019
documented physical therapy treatments for the right hip.
In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and
hamstring tendinosis. He performed a cortisone and lidocaine injection.
In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke
diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis,
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and right hip pain. He answered in the negative as to whether appellant had a history of a
preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were
caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.
By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence establishing a causal relationship between his
diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it
found that he had not met the requirements to establish an injury or medical condition causally
related to the accepted employment incident.
OWCP continued to receive evidence including physical therapy notes dated November 8
through 29, 2019.
In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced
significant relief of his right hip pain f ollowing the cortisone injection and opined that his
complaints and examination findings were related to the May 17, 2019 employment incident.
In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full
duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and
ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring
during his fall “could clearly have caused this problem” and “should be related to” his claim.
Dr. Clarke injected the area with a steroid.
On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019
decision.
By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding
that appellant had not provided rationalized medical opinion eviden ce supporting causal
relationship between his accepted employment incident and his diagnosed medical conditions .
On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020
decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained
that Dr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports
were not speculative.
By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration
neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain

4

5 U.S.C. § 8128(a).

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limitations in exercising its authority. 5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 6
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant, through counsel, argued that OWCP
erred in finding that his claim required a fully rationalized medical opinion in order to establish a
causal relationship between his diagnosed medical conditions and the accepted May 17, 2019
employment incident. The Board finds, however, that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3). 9
Appellant also did not submit any new medical evidence. The underlying issue in this case
is causal relationship, which is medical in nature, and he did not submit any pertinent new and
relevant medical evidence not previously considered by OWCP. Therefore, appellant is not
entitled to further review of the merits of his claim based on the third requirement under section
10.606(b)(3). 10

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued
October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See 20 C.F.R. § 10.606(b)(3)(iii).

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The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI BULK
MAIL CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 08-1059
Issued: December 24, 2008

Case Submitted on the Record

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

JURISDICTION
On February 26, 2008 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decision dated January 28, 2008 terminating her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits on the grounds that she had no disability or medical residuals related to
her December 12, 2005 employment injury.
FACTUAL HISTORY
On March 6, 2002 appellant, then a 41-year-old mail handler, filed a traumatic injury
claim alleging that she injured her back unloading a truck. She filed a notice of recurrence of
disability on March 26, 2002 alleging that on March 20, 2002 she sustained a recurrence of total
disability. On the reverse of the form, appellant’s supervisor indicated that she had returned to

full duty following the alleged March 6, 2002 employment injury and began light-duty work on
March 8, 2002. Appellant stopped work on March 9, 2002.
The Office accepted appellant’s March 6, 2002 claim for a lumbar strain and
trapezius/shoulder strain. On June 21, 2002 it accepted that she sustained a recurrence of total
disability from March 20 through June 16, 2002, at which time she returned to limited duty.
Appellant filed a second claim for recurrence of disability on July 11, 2002. The Office accepted
this claim on September 16, 2002.
Appellant filed a claim for compensation on February 28, 2003 requesting wage-loss
compensation beginning December 24, 2002. By decision dated April 23, 2003, the Office
denied appellant’s claim for a recurrence of disability beginning December 24, 2002. However,
it accepted that she sustained a permanent aggravation of lumbar spondylolysis as a result of her
work injury. On April 5, 2007 the Office accepted under the March 6, 2002 claim that appellant
sustained myalgia and myositis. It also accepted that she sustained an aggravation of preexisting
dysthymic disorder due to her March 6, 2002 work injuries.
Appellant filed a traumatic injury claim on December 12, 2005 alleging that she slipped
on ice while in the performance of duty on that date injuring her left hand, arm, shoulder, back,
neck and head. The Office accepted her claim for a left shoulder contusion, lumbar sprain/strain,
cervical strain and back contusion. Appellant filed a recurrence of disability on May 22, 2006,
alleging that on February 17, 2006 she sustained a recurrence of total disability. Dr. Marc C.
Schneider, a Board-certified orthopedic surgeon, diagnosed cervical strain, back contusion,
lumbar sprain and left shoulder contusion. He stated that as a result of appellant’s employmentrelated fall she had sustained an aggravation of her underlying condition of lumbar spondylolysis
and chronic cervical sprain/strain. Dr. Schneider stated that appellant was totally disabled to
June 10, 2006 and could return to restricted duty at that time working only five to six hours a
day.
The Office referred appellant for a second opinion evaluation on June 8, 2006 with
Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon. In a report dated July 14, 2006,
Dr. Fisher reviewed appellant’s history of injury and medical treatment for both accepted
employment injuries. On physical examination, he found no muscle spasm in appellant’s back or
lower extremities, reduced range of motion of her cervical spine and limited range of motion of
the left shoulder. Dr. Fisher stated that appellant’s subjective findings of persistent neck and low
back pain were similar to those she experienced before the December 12, 2005 employment
injury. He opined that her chronic pain over the lumbar and neck areas were from her 2002
employment injury rather than the 2005 injury. Dr. Fisher opined that the accepted soft tissue
injuries due to the 2005 injury would have healed with three months. He opined that appellant’s
2005 injury temporarily aggravated her underlying conditions resulting from the 2002 injury.
Appellant related to the physician that her pain was back to where it had been before the injury
of December 12, 2005. Dr. Fisher found that appellant had no ongoing residuals from the 2005
injury. He advised that appellant was not capable of performing her job duties due to residuals
of the 2002 injury. Dr. Fisher provided work restrictions of working two to four hours a day in a
sedentary position with frequent breaks. He suggested that appellant walk one out of the four
hours and that she avoid excessive bending, crawling, kneeling or stooping. Dr. Fisher
recommended that she lift no more than 20 pounds occasionally and 15 pounds frequently.

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In a report dated July 10, 2006, Dr. Schneider noted appellant’s December 12, 2005
employment injury and stated that she had been disabled since that injury. He noted that
appellant could return to light-duty work with restrictions on June 28, 2006.
On September 18, 2006 the Office requested a supplemental report from Dr. Schneider
addressing that of Dr. Fisher. It combined appellant’s files on September 25, 2006. On
October 20, 2006 the Office determined that there was a conflict between Drs. Schneider
and Fisher on the extent of appellant’s continuing disability and residuals due to the
December 12, 2005 employment injury. It referred appellant, a statement of accepted facts and a
list of specific questions, to Dr. Steven Goldfarb, a Board-certified, for an impartial medical
examination.
In a report dated November 14, 2006, Dr. Goldfarb discussed appellant’s December 12,
2005 employment injury and medical treatment. He examined appellant and diagnosed
myofascial pain syndrome and chronic lumbar spondylosis with degenerative disc disease of the
lumbar spine. Dr. Goldfarb stated that appellant’s left shoulder contusion and lumbar strain had
resolved and she had no evidence of a cervical strain or contusion to her back. He opined that
her continued lumbar spine pain was likely due to chronic lumbar spondylosis. Dr. Goldfarb
found that appellant’s continued symptoms and work limitations were not related to the
December 12, 2005 employment injury. The Office requested a supplemental report from
Dr. Goldfarb on December 18, 2006 addressing whether appellant sustained an aggravation of
her degenerative disc disease due to the December 2005 injury and whether her current diagnosis
of myofascial pain syndrome was due to her March 6, 2002 employment injury. On January 9,
2007 Dr. Goldfarb opined that appellant’s low back pain was due to degenerative changes in her
lumbar spine. He opined that appellant’s December 2005 employment injury did not result in
any aggravation of her preexiting degenerative condition. Dr. Goldfarb also opined that
appellant’s myofascial pain syndrome was unrelated to her December 12, 2005 employment
injury.
The Office proposed to terminate appellant’s medical and compensation benefits due to
the December 12, 2005 employment injury on March 30, 2007. It allowed appellant 30 days to
respond. On May 2, 2007 she contended that she experienced ongoing neck and left extremity
symptoms.
Dr. Goldfarb reviewed additional medical records on May 18, 2007. He stated that his
opinion had not changed.
By decision dated July 19, 2007, the Office terminated appellant’s medical and
compensation benefits due to her December 2005 employment injury based on the reports of
Dr. Goldfarb.
Appellant, through her attorney, requested an oral hearing which was held on
November 14, 2007. By decision dated January 29, 2008, the hearing representative affirmed the
July 19, 2007 decision finding that the weight of the medical evidence rested with the opinion of
Dr. Goldfarb.

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LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2 The Office’s burden of
proof in terminating compensation includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.3 The right to medical
benefits for an accepted condition is not limited to the period of entitlement of disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition, which require further medical treatment.4
The Federal Employees’ Compensation Act provides that if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.5 The
implementing regulation states that if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.6 It is well established
that when a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on proper
factual and medical background, must be given special weight.7
ANALYSIS
Appellant sustained an employment injury on December 12, 2005, which the Office
accepted for a left shoulder contusion, lumbar sprain/strain, cervical strain and back contusion.
Her attending physician, Dr. Schneider, a Board-certified orthopedic surgeon, supported her
claim for ongoing residuals and disability due to this injury. The Office referred appellant to
Dr. Fisher, a Board-certified orthopedic surgeon, for a second opinion evaluation. Dr. Fisher
found that appellant’s continuing medical conditions and disability were related to the March 6,
2002 employment injury rather than the December 12, 2005 employment injury. He found that
residuals and disability due to appellant’s December 12, 2005 injuries had ceased. Due to the
disagreement between the Office referral physician and appellant’s physician regarding her
continuing medical condition and disability due to the December 12, 2005 employment injury,
1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

4

Mary A. Lowe, supra note 2.

5

5 U.S.C. §§ 8101-8193, § 8123.

6

20 C.F.R. § 10.321.

7

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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the Office properly referred appellant to Dr. Goldfarb, a Board-certified orthopedic surgeon, to
resolve the conflict of medical opinion. The Board notes that there was a conflict of medical
opinion evidence and that the Office properly determined that an impartial medical examiner was
necessary to resolve the issues of this case.
Dr. Goldfarb provided three reports detailing appellant’s history of injury, her medical
treatment and her current physical conditions. He found that she sustained soft tissue injuries as
a result of the December 12, 2005 employment injury which had resolved without residuals.
Dr. Goldfarb noted that appellant had a preexisting degenerative spine condition which caused
ongoing disability for work due to her medical residuals. He opined that appellant’s
December 12, 2005 employment injuries did not result in any aggravation of her underlying
condition.
As required by the Board, Dr. Goldfarb’s reports were based on a proper history of injury
and included physical findings in support of his conclusions. He noted that appellant had
sustained soft tissue injuries to her neck, shoulder and back and that these injuries had resolved.
Dr. Goldfarb further noted that appellant’s underlying degenerative condition was not further
aggravated by these injuries and that her current symptoms and disability were due to her
preexiting condition rather than the December 12, 2005 employment injury. He provided
sufficient findings and medical reasoning to explain why appellant had no residuals or disability
due to the December 12, 2005 employment injury. As Dr. Goldfarb’s reports were detailed and
well rationalized and based on a proper history of injury, these reports are entitled to special
weight. The Office met its burden of proof to terminate appellant’s compensation and medical
benefits due to her December 12, 2005 employment injury.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and medical benefits due to her December 12, 2005 employment injury.

5

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 24, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Burbank, CA, Employer
__________________________________________

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

Docket No. 09-815
Issued: December 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 4, 2009 appellant, through her representative, filed a timely appeal from the
June 16, 2008 and January 6, 2009 merit decisions of the Office of Workers’ Compensation
Programs terminating her compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective July 8, 2008.
FACTUAL HISTORY
On July 18, 2003 appellant, then a 49-year-old transportation security screener, alleged
that she sustained a traumatic injury to her right arm. However, in a statement dated
November 10, 2003, she indicated that the injury had been progressive over a period of months
and was caused by excessive lifting and overexertion of her right arm and shoulder, which

gradually worked up to her neck. Appellant stopped work on July 18, 2003 and did not return.
On December 10, 2003 the Office accepted her claim for right elbow lateral epicondylitis and
right forearm strain. In a decision dated December 10, 2003, it denied continuation of pay as
appellant’s claim was actually for an occupational disease as it occurred over more than one
shift. The Office paid wage-loss compensation and medical benefits.
Appellant began treatment with Dr. Mark Bernhard, an osteopath and Board-certified
physiatrist on January 9, 2004. Dr. Bernhard diagnosed right lateral epicondylitis related to her
employment and continued to treat her for multiple symptoms. In a March 29, 2006 report, he
noted that appellant complained that her left wrist “popped” over the back of her wrist. On
June 23, 2004 Dr. Bernard diagnosed right wrist pain and strain of the proximal carpal row with
traumatic arthritis and right lateral epicondylitis and traumatic degenerative arthritis with
chronic, symptomatic, post-traumatic derangement of the right wrist. Appellant was found
totally disabled and Dr. Bernhard recommended vocational rehabilitation. In an April 26, 2006
report, Dr. Bernard diagnosed her with left volar wrist tenosynovitis, volar forearm overuse
tendinitis, degenerative arthritis in the right wrist and degenerative arthritis in the right elbow.
He reiterated that she was totally disabled. On August 4, 2006 Dr. Bernard diagnosed bilateral
wrist tenosynovitis and right de Quervain’s disease. On December 19, 2006 he repeated the
diagnoses of tenosynovitis to the right wrist with de Quervain’s disease. Dr. Bernard advised
that appellant needed surgery. In a September 10, 2007 report, he diagnosed lumbar
myoligamentous sprain/strain and illiopsoas strain.
On January 21, 2008 the Office referred appellant to Dr. Bunsri T. Sophon, an orthopedic
surgeon, for a second opinion on the residuals due to her accepted conditions. In a report dated
February 7, 2008, Dr. Sophon diagnosed right elbow lateral epicondylitis and right forearm
strain; however, he noted normal objective findings on examinations. He found that appellant’s
disability ceased as of February 7, 2008, the date of his report. Although appellant’s diagnosed
conditions were medically connected to the work injury, she no longer had any physical
limitations. Dr. Sophon advised that there were no abnormal objective findings in her right wrist
or elbow to substantiate her subjective complaints. Dr. Bernhard found that further medical
treatment was not indicated.
By letter dated April 8, 2008, the Office asked Dr. Bernhard to comment on Dr. Sophon’s
examination of appellant and whether she could return to work without restriction. Dr. Bernhard
did not file a timely response.
On May 13, 2008 the Office advised appellant that it proposed to terminate her
compensation benefits based on the opinion of Dr. Sophon. Appellant was provided 30 days to
respond.
In a May 27, 2008 report, Dr. Bernhard noted on physical examination that appellant had
some tenderness on the lateral elbows, but no swelling or deformity. He diagnosed bilateral
upper extremity muscle strains, forearm strains and tenosynovitis. Dr. Bernhard recommended
that appellant return to work with a restriction of no lifting over 40 pounds at the waist on
occasion. He also recommended physical therapy. However, in a report also dated May 27,
2008, received by the Office on June 13, 2008 Dr. Bernhard advised that appellant remained
totally disabled.

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By decision dated June 16, 2008, the Office terminated appellant’s compensation and
medical benefits effective July 8, 2008.
On June 25, 2008 appellant requested review of the written record by an Office hearing
representative. In a June 25, 2008 report, Dr. Bernhard advised that she had bilateral tendinitis
and overuse syndrome of the forearms with no evidence of carpal tunnel syndrome. He stated
that appellant was permanent and stationary. On July 15, 2008 appellant, through her attorney,
requested a telephonic hearing.
At the hearing held on October 15, 2008 appellant testified that she had pain in her wrists,
swelling, twitching in her baby finger and difficulty with her grip.
By decision dated January 6, 2009, the hearing representative affirmed the June 16, 2008
decision terminating benefits. She found that the weight of the medical evidence was
represented by the opinion of Dr. Sophon.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.2
Furthermore, the right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition that require
further medical treatment.3
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.4 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the second opinion
physician, the Office shall appoint a third physician to make an examination. This is called a
referee examination and the Office will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case.5 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such

1

Curtis Hall, 45 ECAB 316 (1994).

2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey 49 ECAB 166 (1997).

4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.321.

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specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.6
ANALYSIS
The Office accepted that appellant sustained right elbow lateral epicondylitis; right
forearm strain; and sprain of the right elbow and forearm as a result of the duties of her federal
employment. It terminated her compensation benefits effective July 8, 2008 on the basis that she
had no residuals from her accepted employment injury. It accorded determinative weight to the
opinion of Dr. Sophon, the second opinion specialist.
The Board finds that there is a disagreement between Dr. Bernhard, appellant’s treating
physician, and Dr. Sophon, the second opinion examiner, regarding whether she remains totally
disabled as a result of her work injuries. Dr. Bernhard, in a June 23, 2004 report, indicated that
appellant was permanently totally disabled from her preinjury employment as a result of her
work injuries. He continued to find that she had symptoms and total disability in subsequent
reports. In a December 19, 2006 report, Dr. Bernhard indicated that appellant needed surgery on
her right wrist. In a May 27, 2008 report, he noted that she had bilateral upper extremity muscle
strain, forearm strains and tenosynovitis. Dr. Bernhard indicated that appellant was totally
disabled. However, on February 7, 2008, the second opinion physician, Dr. Sophon, indicated
that she had no objective findings to support her subjective complaints; that she no longer had
any physical limitations resulting from her work-related disability, concluding that the
employment-related disability ceased as of February 7, 2008; and that no further medical
treatment was indicated. Accordingly, there was an unresolved conflict between appellant’s
treating physician and the second opinion physician with regard to whether appellant still had
any disability associated with her accepted work condition and as to whether appellant still
needed treatment. When such conflicts in medical opinion arise, 5 U.S.C. § 8123(a) requires the
Office to appoint a referee physician, also known as an impartial medical examiner, to resolve
the conflict.7 The Board finds that the Office did not meet its burden of proof to terminate
appellant’s compensation and medical benefits due to an unresolved conflict in medical opinion.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation and medical benefits effective July 8, 2008.

6

Darlene R. Kennedy, 57 ECAB 414 (2006); Barry Neutuch 54 ECAB 313 (2003); David W. Pickett, 54 ECAB
272 (2002).
7

5 U.S.C. § 8123(a).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 6, 2009 and June 16, 2008 are reversed.
Issued: December 14, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waukesha, WI, Employer
__________________________________________

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

Docket No. 16-1303
Issued: December 2, 2016

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 June 6, 2016 appellant filed a timely appeal from a December 7, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a back injury
causally related to the November 18, 2014 employment incident; and (2) whether an OWCP
hearing representative properly denied his request for a subpoena.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that on appeal appellant submitted new evidence. However, the Board is precluded from
reviewing evidence which was not before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that a letter from his attending chiropractor submitted in
support of his appeal is sufficient to establish that he sustained a spinal subluxation causally
related to the November 18, 2014 employment incident.
FACTUAL HISTORY
On November 18, 2014 appellant, then a 47-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that his back locked up while he was carrying buckets down a ramp
at work on that date. He also experienced difficulty with talking and breathing.
In a November 18, 2014 work/school excuse note, Dr. Laura C. Sukowaty, an attending
family practitioner, excused appellant from work through November 24, 2014.
In a November 20, 2014 Family and Medical Leave Act (FMLA) medical certification
report, Dr. Michelle Stamm, an attending chiropractor, diagnosed disc and nerve irritation
complicated by a muscle sprain/strain. She advised that appellant would be incapacitated for
three to four months. Dr. Stamm also advised that he was unable to lift, bend, or twist.
By letter dated December 30, 2014, OWCP advised appellant of the deficiencies of his
claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In urgent care medical notes dated November 18, 2014, Megan M. Hollis, a medical
assistant, and Dave Gay, a registered nurse, examined appellant and provided a history of injury
that he had experienced back pain for two weeks, that on the date of his examination he was
carrying an empty bucket down a ramp, and that he had developed spasms in his back and
numbness and tingling in his hands and feet. Ms. Hollis and Nurse Gay also provided a history
of appellant’s medical background. They diagnosed lumbago and provided discharge
instructions and a list of medications prescribed by Dr. Sukowaty.
In a January 13, 2015 narrative statement, appellant related that he had already unloaded
and parked his vehicle in its assigned place in the employing establishment’s icy and untreated
parking lot when his supervisor asked him to go look for N.H., a coworker, on her route because
she was running very late. He then reloaded his postal vehicle with two white square buckets
that contained needed supplies. While carrying the buckets down a ramp, appellant felt a big
spasm in his middle to lower back. Once he arrived at the parking lot, he had to shuffle his feet
because of the snow and ice in the lot which worsened his back pain. Appellant contended that
the snow and ice covered ramp probably contributed to his claimed injury. He found N.H. on her
route and helped deliver her route despite his throbbing back pain. When appellant returned to
the employing establishment his back condition had worsened and breathing had become
difficult for him. He finished his work duties and went home. Appellant subsequently sought
medical treatment from Dr. Sukowaty who placed him off work for four days. He had not
received any prior mid-back treatment. Appellant noted that he previously had whiplash as a
result of a 2013 motor vehicle accident for which he received chiropractic treatment for his neck
and lower back injuries.
In a January 29, 2015 decision, OWCP accepted that the November 18, 2014 incident
occurred as alleged. However, it denied appellant’s claim as the medical evidence of record did

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not establish a causal relationship between his back condition and the accepted employment
incident.
On an appeal request form dated February 15, 2015 and in a letter dated February 16,
2015, appellant requested a telephone hearing with an OWCP hearing representative. The
hearing was held on October 6, 2015.
In progress notes dated November 20, 2014 to March 6, 2015, Dr. Stamm provided a
history of the accepted November 18, 2014 employment incident and reported findings on
physical and x-ray of the cervical, thoracic, and lumbar spines. She assessed acute symptoms
which improved over time. Dr. Stamm later noted that appellant’s condition had entered an
intermediate stage that was subacute in nature and he had shown acceptable progress.
In a note dated November 18, 2014, Dr. Sukowaty provided a history of the accepted
employment incident and appellant’s medical background. She reported physical examination
findings and diagnosed lumbago.
By letter dated March 15, 2015, appellant requested that the Branch of Hearings and
Review subpoena T.L., an acting supervisor who was in charge at the time of his November 18,
2014 work incident, L.S., a supervisor who completed the employing establishment’s portion of
his Form CA-1, J.A., a coworker who was the only other person on the dock with appellant on
the date of injury, N.H., and various documents regarding the work incident. He explained that
the subpoenas were necessary because the postmaster did not allow information to flow freely.
T.L. had denied appellant’s request for information regarding his coworkers who were involved
in events similar and subsequent to his November 18, 2014 work incident. M.B., a supervisor,
and T.L. did not respond to his request for L.S.’s report concerning this employment incident.
In progress notes dated May 11 and 21, 2015, Dr. David K. Dedianous, a physiatrist,
noted a history of the accepted November 18, 2014 employment incident and a history that
appellant had a new job driving a mail truck, which caused mid-back pain. He diagnosed
mechanical back pain, lumbar strain, and myofascial syndrome. In letters also dated May 11 and
June 11, 2015, Dr. Dedianous reiterated his diagnoses of mechanical back pain, lumbar strain,
and myofascial syndrome. He released appellant to return to work with restrictions on May 12
and June 11, 2015.
In progress notes dated June 8 to 25, 2015, appellant’s occupational therapist and
physical therapists addressed the treatment of his back condition.
By letter dated September 18, 2015, an OWCP hearing representative denied appellant’s
request for the issuance of subpoenas. She found that the attendance and testimony from
employing establishment personnel would not assist in his claim as the issue in the case was
medical in nature and the record did not reflect a dispute regarding the reported cause of his
claimed injury. The hearing representative further found that a subpoena was not the best way to
obtain the requested documents and recommended that appellant request a copy of his case
record from OWCP.
In a December 7, 2015 decision, the same OWCP hearing representative affirmed the
January 29, 2015 decision. She found that the medical evidence of record was insufficient to
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establish a causal relationship between appellant’s back condition and the accepted
November 18, 2014 employment incident. The hearing representative also found that appellant’s
subpoena request was properly denied as the issue under consideration was medical in nature and
OWCP had accepted that the November 18, 2014 incident occurred as alleged.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which compensation is claimed is causally related to
that employment injury.4
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.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment incident is insufficient to establish a causal relationship.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury causally related to the accepted November 18, 2014 employment
incident. Appellant failed to submit sufficient medical evidence to establish that he sustained a
back injury causally related to the accepted employment incident.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

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

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

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).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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Dr. Sukowaty’s November 18, 2014 note reported a history of the accepted employment
incident and appellant’s medical background. She reported findings on physical examination
and diagnosed lumbago. Dr. Sukowaty did not provide a medical opinion addressing whether
the accepted November 18, 2014 employment incident caused or aggravated appellant’s
diagnosed condition. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.10 Dr. Sukowaty’s November 18, 2014
work/school excuse note addressed appellant’s total disability for work through November 24,
2014, but is of limited probative value as it did not provide a firm diagnosis of a particular
medical condition11 or offer a specific opinion as to whether the accepted employment incident
caused or aggravated his claimed condition and resultant disability.12
Similarly, Dr. Dedianous’ May 11 and 21, and June 11, 2015 progress notes and reports
are of limited probative value. He provided a history of appellant’s injury, examination findings,
and a diagnosis of mechanical back pain, lumbar strain, and myofascial syndrome.
Dr. Dedianous also addressed appellant’s work capacity and restrictions. However, he did not
offer any medical opinion addressing whether the diagnosed conditions and prior disability from
work were caused or aggravated by the accepted November 18, 2014 employment incident.13
The remaining reports of record are of no probative value on the issue of causal
relationship. The FMLA medical certification report dated November 20, 2014 and progress
notes dated November 20, 2014 to March 6, 2015 from Dr. Stamm, an attending chiropractor,
addressed appellant’s history of injury, spinal condition, disability from work, and physical
restrictions. Although she obtained x-rays, Dr. Stamm did not diagnose a spinal subluxation
based upon x-ray evidence.14 Without a diagnosis of a subluxation from x-ray, Dr. Stamm is not
considered a physician as defined under FECA and, thus, her report and progress notes do not
have any probative medical value.
The urgent care reports dated November 18, 2014 from Ms. Hollis, a medical assistant,
and Mr. Gay, a registered nurse, and progress notes dated June 8 to 25, 2015 from appellant’s
occupational and physical therapists are of no probative medical value. Medical assistants,
10

See C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
11

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that, in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
12

See cases cited supra note 10.

13

Id.

14

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. See Roy L. Humphrey, 57 ECAB 238 (2005). The term physician includes chiropractors only
to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine
to correct a subluxation as demonstrated by x-ray to exist. See Mary A. Ceglia, 55 ECAB 626 (2004) (in assessing
the probative value of chiropractic evidence, the initial question is whether the chiropractor is a physician as defined
under 5 U.S.C. § 8101(2); a chiropractor is not considered a physician under FECA unless it is established that there
is a spinal subluxation as demonstrated by x-ray to exist).

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registered nurses, physical therapists, and occupational therapists are not considered physicians
as defined under FECA.15
Therefore, the Board finds that the medical evidence of record is insufficient to establish
that appellant sustained a back injury causally related to the accepted November 18, 2014
employment incident.
On appeal, appellant contends that a letter from his attending chiropractor submitted in
support of his appeal is sufficient to establish that he sustained a spinal subluxation causally
related to the November 18, 2014 work incident. However, as stated, the Board cannot consider
new evidence on appeal as its jurisdiction is limited to the evidence that was before OWCP at the
time it issued its final decision.16
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of FECA provides that the Secretary of Labor, on any matter within his
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.17 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers, or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.18 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.19 Section
10.619(a) of the implementing regulations provide that a claimant may request a subpoena only
as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.

15

5 U.S.C. § 8101(2); J.J., Docket No. 15-0727 (issued July 16, 2015) (reports from an occupational therapist
have no probative medical value as an occupational therapist is not a physician as defined under FECA); see also
G.A., Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse has no probative medical value
as a nurse is not a physician as defined under FECA); A.C., Docket No. 08-1453 (issued November 18, 2008)
(records from a physical therapist has no probative medical value as a physical therapist is not physician as defined
under FECA).
16

Supra note 2.

17

5 U.S.C. § 8126(1).

18

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

19

Id.

6

To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.20
The hearing representative retains discretion on whether to issue a subpoena. The function of the
Board on appeal is to determine whether there has been an abuse of discretion.21 Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are clearly contrary to logic and probable deduction from
established facts.22
ANALYSIS -- ISSUE 2
In the present case, appellant requested that OWCP’s hearing representative issue a
subpoena to obtain testimony from supervisors and a coworker and various documents regarding
the accepted November 18, 2014 employment incident. The hearing representative denied the
request, finding that the attendance and testimony from employing establishment personnel were
not relevant to the medical issue in his case and the record did not reflect a dispute regarding the
reported cause of his claimed back injury. Further, she found that the best way for appellant to
obtain the requested documents was by requesting a copy of his case record from the district
office.
The Board finds that OWCP’s hearing representative did not abuse her discretion in
denying appellant’s subpoena request. Appellant argued that the testimony from his supervisors
and coworker and requested that documents were necessary because the postmaster did not allow
T.L. to provide him with information regarding his coworkers who were involved in events
similar and subsequent to his November 18, 2014 work incident or M.B. and T.L. to provide him
with L.S’s report concerning this incident. However, he did not clearly explain why a subpoena
was the best method to obtain further evidence concerning the November 18, 2014 work
incident, particularly since OWCP had accepted that the incident occurred as alleged. Moreover,
the hearing representative reasonably determined that testimony regarding the occurrence of the
November 18, 2014 incident was irrelevant to the medical issue of causal relationship in this case
and that the requested documents could be obtained from the district office. There was no
evidence presented that subpoenas were necessary with respect to the development of the
relevant evidence in this case. The Board therefore finds no abuse of discretion related to the
denial of a subpoena request.23
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a back
injury causally related to the November 18, 2014 employment incident. The Board further finds
that an OWCP hearing representative properly denied appellant’s request for a subpoena.
20

20 C.F.R. § 10.619(a)(1).

21

See Gregorio E. Conde, supra note 18.

22

Claudio Vazquez, 52 ECAB 496 (2001).

23

D.O., Docket No. 15-1368 (issued October 22, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the December 7, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 2, 2016
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Newark, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0610
Issued: September 23, 2019

Case Submitted on the Record

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

JURISDICTION
On January 25, 2019 appellant, through counsel, filed a timely appeal from an August 21,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability commencing February 18, 2016, causally related to his accepted April 23, 2008
employment injury.
FACTUAL HISTORY
On April 29, 2008 appellant, then a 33-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1), alleging that on April 23, 2008 while in the performance of duty he
was conducting a “mobile surveillance/arrest” and hit his head on the roof of the surveillance van
he was riding in when it went over a large speed bump. He indicated that he sustained a concussion
and contusions to his head and experienced headaches. By decision dated June 16, 2008, OWCP
accepted the claim for head contusions.
In a report dated June 29, 2016, Dr. Erin M. Elmore, a Board-certified neurologist,
indicated that she first saw appellant for a neurological evaluation on April 7, 2015. She explained
that the consultation was for a one-year duration of weakness in his upper extremities, following
an incident the summer prior when appellant experienced an acute onset of right-sided neck pain
with pain radiating down his right arm after turning his head quickly to the side. Dr. Elmore noted
that he did not seek any immediate medical attention following this incident. She also noted a
prior injury where he hit his head on a metal shed door while working as a firearms instructor
without any reported loss of consciousness, but with reports of headaches and increased neck pain.
She further noted appellant’s April 23, 2008 work-related injury where he hit his head on the
ceiling of a van after it went over a speed bump. Dr. Elmore indicated that he lost consciousness
and developed severe headache with neck pain following this incident. She related that appellant
eventually underwent cervical fusion surgery on February 18, 2016, which improved his neck pain,
migraines, and shooting pains. Dr. Elmore concluded that appellant had a long-standing history
of neck issues dating back to 2008 when he was originally injured in the van. Magnetic resonance
imaging (MRI) scans following the 2008 injury revealed damage to the disc at C4-5 and C5-6,
especially to the left and subsequent worsening disc pathology at C4-6. Dr. Elmore opined that
appellant’s cervical condition and subsequent surgery was causally related to his accepted
April 23, 2008 employment injury and advised that his overall recovery from the fusion surgery
might take a year or more to establish.
On August 26, 2016 appellant filed a notice of recurrence (Form CA-2a), alleging that he
sustained a recurrence of total disability on February 18, 2016. He explained that, following his
original injury on April 23, 2008, his pain worsened over time and he lost significant upper body
strength until he was unable to perform all of his employment duties. On the reverse side of the
claim form, the employing establishment indicated that appellant underwent surgery to address his
back and neck pain on February 18, 2016, the date in which he alleged a recurrence of disability.
By development letter dated October 3, 2016, OWCP advised counsel that appellant’s
claim had been closed as he had not lost any time from work or sought any medical attention
following the April 23, 2008 accepted employment injury. It advised that he had another work
injury on June 8, 2012 under OWCP File No. xxxxxx011 and it might be more appropriate for
appellant to file a recurrence claim under that case.

2

In a letter dated October 14, 2016, counsel indicated that he had filed a recurrence claim
under OWCP File No. xxxxxx011 as he had been advised, but suggested that the medical evidence
supported that the recurrence was related to the April 23, 2008 employment injury.
By letter dated October 20, 2016, counsel reiterated his argument and submitted an
October 7, 2016 report from Dr. George V. DiGiacinto, a Board-certified neurosurgeon.
Dr. DiGiacinto indicated that he first saw appellant in February 2008 and he complained about
chronic pain in his back for about 10 years. Appellant had a history of playing football and
weightlifting and had been told in the past of “fracture” and disc desiccation. At that time, he
complained primarily of low back pain. Appellant related that he later sustained an employmentrelated head and neck injury on April 23, 2008 while working in a surveillance van. He stated that
prior to this incident, he had no neck pain or other injury and thereafter, developed progressively
worsening neck issues and migraines. When Dr. DiGiacinto saw appellant in 2016, appellant
indicated that he had had an exacerbation of his condition in 2015 while working out and lifting at
a gym when he felt a “pop” in his neck and developed numbness down his right arm with
tremendous weakness. An MRI scan at the time demonstrated pathology at C5-6 on the right
foraminal encroachment at C6-7. Dr. DiGiacinto opined that the accepted April 23, 2008 work
injury was a major causative factor in appellant requiring a cervical and lumbar spine surgery.
In response to counsel’s October 20, 2016 correspondence, on October 21, 2016, OWCP
advised counsel that appellant’s case was only accepted for head contusions and there was no
operative report in the file to support that appellant underwent surgery on February 18, 2016.
In a November 9, 2016 development letter, OWCP advised appellant of the deficiencies of
his claim and afforded him 30 days to submit the requested evidence.
In response, appellant submitted a copy of an operative report indicating that he had
undergone an anterior cervical discectomy at C5-6 and C6-7 on February 18, 2016, performed by
Dr. DiGiacinto.
By decision dated February 9, 2018, OWCP denied appellant’s recurrence claim for
disability commencing February 18, 2016, finding that the medical evidence of record was
insufficient to establish a material change or worsening of his accepted April 23, 2008 employment
injury.
On February 22, 2018 counsel requested an oral hearing before an OWCP hearing
representative.
Appellant subsequently submitted a June 2, 2015 report from Dr. John E. Robinton, a
Board-certified neurologist, who opined that appellant’s electromyography (EMG) and nerve
conduction studies revealed evidence of polyradiculopathy.
An oral hearing was held before an OWCP hearing representative of the Branch of
Hearings and Review on June 14, 2018. Appellant provided testimony and the hearing
representative held the case record open for 30 days for the submission of additional evidence.
Appellant subsequently submitted an addendum report dated July 2, 2018 from Dr. Elmore
who reiterated her medical opinions.
3

By decision dated August 21, 2018, OWCP’s hearing representative affirmed OWCP’s
prior decision. She found that the evidence of record was insufficient to establish a return or
increase of disability due to a consequential injury or condition stemming from his accepted head
contusions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.3 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.4
OWCP procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. OWCP does not include a condition
that results from a new injury, even if it involves the same part of the body previously injured.5
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.6 Where no such rationale is present,
the medical evidence is of diminished probative value.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish recurrence of
disability, commencing February 16, 2018, causally related to his accepted April 23, 2008
employment injury.

3

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
6

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

7

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

4

In his October 7, 2016 report, Dr. DiGiacinto indicated that he began treating appellant in
1998 for ongoing back pain. He recounted appellant’s medical history, including the accepted
April 23, 2008 employment injury, and opined that that incident was a major causative factor in
his requiring cervical and lumbar spine surgery. The Board finds that, while Dr. DiGiacinto’s
opinion is generally supportive of causal relationship, he did not provide sufficient medical
rationale explaining how appellant’s conditions and cervical spine surgery were causally related
to the accepted April 23, 2008 employment injury. Further, Dr. DiGiacinto also attributed
appellant’s disability, in part, to preexisting and other conditions not accepted as work related,
rendering the cause of his disability unclear. Therefore, the Board finds that this evidence is
insufficient to establish a recurrence of disability.8
In her June 29, 2016 and July 2, 2018 reports, Dr. Elmore stated that appellant had a longstanding history of neck issues dating back to 2008 when he was originally injured in the accepted
April 23, 2008 employment incident. She noted that he underwent an MRI scan that revealed
damage to the disc at C4-5 and C5-6, especially to the left. Appellant then underwent a repeat
MRI scan following an injury when he hit his head on a metal shed door while working as a
firearms instructor without any reported loss of consciousness, but with reports of headaches and
increased neck pain. Dr. Elmore found that the repeat MRI scan revealed mild interval change
with worsening disc pathology at C4-6; however, she did not provide a rationalized medical
explanation to support her conclusion that appellant was disabled as a result of the accepted
April 23, 2008 employment incident. Therefore, her reports are also insufficient to support a
worsening of appellant’s accepted employment-related condition to establish a recurrence of
disability.9
Appellant also submitted a June 2, 2015 report from Dr. Robinton who opined that his
EMG and nerve conduction studies revealed evidence of polyradiculopathy. However, the Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.10 Therefore, this evidence is
insufficient to satisfy appellant’s recurrence 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 has not met his burden of proof to establish a recurrence of
disability, commencing February 18, 2016, causally related to his accepted April 23, 2008
employment injury.

8

See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting causal
relationship generally do not discharge a claimant’s burden of proof).
9

Id.

10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6