United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF AGRICULTURE, FOREST )
SERVICE, Alpine, CA, Employer
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___________________________________________ )
T.R., Appellant

Docket No. 09-1854
Issued: June 15, 2010

Appearances:
Sally La Macchia, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On July 13, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated May 28, 2009, which denied his claim for a recurrence.
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 appellant sustained a recurrence of disability on or after July 10,
2002 causally related to his May 11, 2002 work-related injury.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In separate decisions dated
November 5, 2003 and March 6, 2006, the Board found that appellant had not met his burden of
proof to establish a recurrence of disability on or after July 10, 2002 causally related to his
accepted May 11, 2002 employment injury. The Board notes that appellant’s claim was accepted
1

Docket Nos. 03-1008 (issued November 5, 2003) and 05-1925 (issued March 6, 2006).

for left quadriceps strain.
incorporated by reference.

The facts and the history contained in the prior appeals are

By letter dated January 31, 2007, appellant’s representative requested reconsideration and
submitted additional medical evidence. She noted the background of the claim and repeated
previous arguments related to whether the claim was properly adjudicated as a recurrence of
disability and alleged error by the Board. Appellant’s representative also repeated her arguments
concerning appellant’s preexisting osteoarthritis and degenerative joint disease and repeated her
request that the Office expand his claim to include osteoarthritis, osteopenia, avascular necrosis,
chronic pain and degenerative disc disease.
The additional evidence included an August 2, 2006 report from Dr. Paul Murphy, a
Board-certified orthopedic surgeon, who noted a history of chronic pain. Dr. Murphy’s
examination revealed tenderness in the bilateral sacroiliac joints, and the left and right groin
areas. In an August 24, 2006 report, he diagnosed mild avascular necrosis.
In an August 8, 2006 report from Dr. Jean-Jacques Abitbol, a Board-certified orthopedic
surgeon, diagnosed “lumbar syndrome.” The Office also received progress reports dated
February 12 and March 26, 2007, from Dr. Abitbol who noted that appellant was seen for hip
pain.
An August 17, 2006 magnetic resonance imaging (MRI) scan of the lumbar spine read by
Dr. Lori M. Baker, a Board-certified diagnostic radiologist, revealed minimal left paramedian
disc protrusion at L5-S1 and a minimal broad-based disc bulge at L3-4. An August 17, 2006
MRI scan of the bilateral hips read by Dr. James A. Cooper, a Board-certified diagnostic
radiologist revealed avascular necrosis.
An August 25, 2006 treatment note from Dr. Michelle Hamidi, a Board-certified family
practitioner, diagnosed lumbago. In February 12 and March 26, 2007 treatment notes,
Dr. Hamidi reported findings and diagnosed avascular necrosis of both hips.
In a November 15, 2006 report, Dr. Peter B. Hanson, a Board-certified orthopedic
surgeon, noted that he was treating appellant for avascular necrosis of the hips. He indicated that
he first saw appellant on February 25, 2004. Dr. Hanson explained that, when he saw appellant
on November 10, 2004, he opined that “appellant’s job did not cause osteoarthritis or osteopenia
or other joint disease, but rather that it caused symptoms related to the osteoarthritis by
exacerbating it.” He explained that the “patient’s osteoarthritis and degenerative joint disease
looks accelerated by the performances of his job duties.” Dr. Hanson noted that a 2006 MRI
scan of the lumbar spine revealed a left median disc protrusion at L4, L5-S1 to left peroneal disc
protrusion. He opined that his opinion has not changed. Dr. Hanson reiterated that appellant
was a seasonal firefighter who began having pain “while doing his usual and customary job.”
He opined that appellant’s osteoarthritis and/or avascular necrosis and pain was brought on
and/or exacerbated by his work. Dr. Hanson opined that it was “medically reasonably and
probable that [appellant’s] duties as a seasonal firefighter contributed in a measurable way to his
present condition of avascular necrosis, of the hips and that it brought about and/or exacerbated
his pain.” He also indicated that appellant’s inability to work as firefighter on and after July 10,
2002 was caused by his May 11, 2002 employment injury. Dr. Hanson opined that his duties as

2

a firefighter did not directly cause his avascular necrosis/osteoarthritis of the hip, but that they
did accelerate, precipitate or aggravate the left hip conditions. In a December 28, 2006 report, he
noted that appellant presented for a reevaluation. Dr. Hanson advised that appellant’s hip
conditions were largely asymptomatic.
By decision dated June 29, 2007, the Office denied appellant’s request for
reconsideration on the grounds that evidence submitted in support of the request was insufficient
to warrant a merit review of the claim.
On May 21, 2008 appellant’s representative filed an application for review of the Office’s
June 29, 2007 decision. On February 12, 2009 the Board issued an order remanding the case.2
The Board found the appeal was not in posture for decision as the case record forwarded to the
Board was incomplete. The Board set aside the Office’s June 29, 2007 decision and remanded
the case for the Office to reconstruct the record.
Appellant submitted a January 8, 2009 report from Dr. Hanson who diagnosed avascular
necrosis of both hips. In response to a question from appellant’s representative on the etiology
of appellant’s avascular necrosis, Dr. Hanson opined:
“With regards to the etiology of avascular necrosis in [appellant], I do not have a
definitive answer. About half the time it is idiopathic, meaning we cannot
pinpoint its origin. Other factors can be the use of steroids, as you are discussing,
or excessive alcohol intake. To my knowledge, the patient has never been a
heavy drinker. Sickle cell disease can cause it, which he does not have.
Inflammatory arthropathies such as rheumatoid arthritis can contribute as well,
which he does not have. People with pulmonary disease tend to get it, usually
because they are taking oral steroids. To my knowledge he was never a deep-sea
diver, who can also develop it.”
By decision dated May 28, 2009, the Office denied appellant’s claim for a recurrence of
disability commencing July 10, 2002 causally related to his May 11, 2002 employment injury.
LEGAL PRECEDENT
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 substantial 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 injury-related condition or a change
in the nature and extent of the light-duty requirements.3

2

Docket No. 08-1599 (issued February 12, 2009).

3

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).

3

Office regulations provide 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. This 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 reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.4
ANALYSIS
The Board finds that appellant has not shown a change in the nature and extent of his
work-related injury or of the light-duty requirements.
Appellant failed to submit sufficient medical evidence to show that he cannot perform his
light-duty position due to his original employment injury accepted for a left quadriceps strain.
In support of his claim, appellant submitted an August 2, 2006 report from Dr. Murphy
who noted a history of chronic pain and tenderness in the bilateral sacroiliac joints, and the left
and right groin areas. In an August 24, 2006 report, Dr. Murphy diagnosed mild avascular
necrosis. Appellant also submitted progress reports dated February 12 and March 26, 2007, from
Dr. Abitbol, who noted that appellant was seen for hip pain. Neither of these physicians
supported that the accepted left quadriceps strain caused disability beginning July 10, 2009 nor
did they otherwise support a spontaneous change in a medical condition which had resulted from
the accepted left quadriceps strain. The Board has also held that a diagnosis of “pain” does not
constitute the basis for the payment of compensation.5 These reports are of limited probative
value.
Appellant also submitted: an August 8, 2006 report from Dr. Abitbol, who diagnosed
“lumbar syndrome”; an August 25, 2006 treatment note from Dr. Hamidi, who diagnosed
lumbago; and a March 26, 2007 report from Dr. Hamidi, who diagnosed avascular necrosis of
both hips. These reports also do not specifically address appellant’s disability beginning July 10,
2002 as being due to the May 11, 2002 traumatic injury. For example, none of the physicians
explained how these conditions, which were not accepted, stemmed from the accepted injury or
discussed whether appellant was unable to perform his light-duty position on or after July 10,
2002, thus these reports are of little probative value.6
Appellant also submitted several reports from Dr. Hanson. In a November 15, 2006
report, Dr. Hanson noted that he was treating appellant for avascular necrosis of his hips. He
opined that appellant’s firefighter duties did not directly cause his avascular
4

20 C.F.R. § 10.5(x).

5

John L. Clark, 32 ECAB 1618 (1981).

6

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).

4

necrosis/osteoarthritis of the hip, but they did accelerate, precipitate or aggravate the left hip
conditions. Dr. Hanson opined that it was “medically reasonably and probable that [appellant’s]
duties as a seasonal firefighter contributed in a measurable way to his present condition of
avascular necrosis, of the hips and that it brought about and/or exacerbated his pain.” He
indicated that appellant’s inability to work as firefighter after July 10, 2002 was due to his
May 11, 2002 employment injury. In his January 9, 2009 report, Dr. Hanson clarified his
opinion with regard to the avascular necrosis of the hips. He opined that he did not have a
definitive answer. Dr. Hanson explained that the condition was “idiopathic, meaning we cannot
pinpoint its origin.” He noted that other factors could be contributors such as steroids, excessive
alcohol intake, sickle cell disease and rheumatoid arthritis. Dr. Hanson offered no reasoned
explanation regarding how the accepted left quadriceps strain could have caused or aggravated
avascular necrosis in the hips. The Board finds that Dr. Hanson’s reports are speculative in
nature as he indicated that he could not offer a definite opinion on the cause of appellant’s
condition.7 The Board finds that these reports are of limited probative value.
Appellant also submitted an August 17, 2006 MRI scan of the lumbar spine read by
Dr. Baker and an August 17, 2006 MRI scan of the bilateral hips, read by Dr. Cooper. These
reports merely reported findings and did not contain an opinion regarding the cause of the
reported condition. Medical reports not containing rationale on causal relation are entitled to
little probative value and are generally insufficient to meet an employee’s burden of proof.8
Other medical reports submitted by appellant are insufficient to meet his burden of proof
as they do not specifically address whether his employment injury was the cause of his disability
beginning July 10, 2002.
Appellant’s representative also alleged before the Office that the Board was mistaken
with regard to the treatment of appellant’s claim as a recurrence. However, the Board has
previously considered this assertion and again finds this argument without merit as appellant
filed the claim for a recurrence of disability and the Office appropriately developed this claim.9
On appeal, counsel contends that the Office ignored the Board’s February 12, 2009 order
directing reconstruction of the record. The Board notes, however, that there is no evidence that
the Office did not comply with the Board’s order as the record presently before the Board
appears complete.

7

See Leonard J. O Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).
8

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that 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 Board notes that appellant was not precluded from filing claims with the Office regarding other matters as
he deemed appropriate.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a recurrence of disability on or after July 10, 2002 causally related to his accepted
May 11, 2002 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 28, 2009 is affirmed.
Issued: June 15, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 08-2315
Issued: June 23, 2009

Case Submitted on the Record

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

JURISDICTION
On August 22, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated November 20, 2007 and April 24 and August 14, 2008
concerning his rate of pay. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly computed appellant’s rate of pay for purposes of
calculating his schedule award.
FACTUAL HISTORY
This is the third appeal in this case.1 By decision dated July 2, 2007, the Board set aside
November 20 and July 19, 2006 decisions of the Office denying appellant’s claim for a schedule
1

See Docket No. 07-428 (issued July 2, 2007); Docket No. 05-1993 (order dismissing appeal issued
February 2, 2006). On January 16, 2004 appellant, then a 40-year-old part-time flexible mail handler, sustained a
sprain and strain of the right knee and leg and right plica syndrome of the right knee.

award. By order dated February 2, 2006, the Board dismissed his appeal at his request. The
facts of the previous Board decision are incorporated herein by reference.
On June 13, 2003 the employing establishment issued a notice to appellant that a
February 25, 2002 removal was rescinded and he should report to work on June 15, 2003. In a
September 4, 2003 letter, appellant, a representative of the employing establishment and a union
representative agreed that the letter would constitute full and final settlement of the award for
reinstatement and back pay resulting from a June 5, 2003 arbitration decision. It was agreed that
appellant would receive back pay for the period March 272 through June 7, 2002 but would
waive back pay on and after June 8, 2002.3
On March 23, 2004 the employing establishment advised the Office that appellant was a
permanent employee working part time. During the year immediately preceding his January 16,
2004 employment injury, he earned $6,687.49 for 451 hours of work and leave. In a daily roll
payment worksheet, the employing establishment advised that appellant was on the pay rolls for
one year prior to the January 16, 2004 employment injury, but received pay for only 15 weeks at
the rate of $445.83 per week.
There are documents of record showing that appellant’s hourly pay rate was $16.43 and
his annual pay amount was $34,174.00.
On April 7, 2004 the Office advised appellant that his weekly pay rate had been
established as $455.83. On May 2, 2004 appellant indicated that he worked only 15 weeks prior
to his January 16, 2004 injury because the employing establishment improperly terminated him
until his reinstatement on June 13, 2003. He argued that he worked more than 40 hours a week
before his termination in February 2002. The record shows that appellant returned to work in
pay period 15 in 2003. He then worked pay periods 16, 21 through 24 and 26 in 2003 and pay
periods 1 and 2 in 2004. Appellant was off work pay periods 17 through 20 and 24 and he did
not use leave for these pay periods.
By decision dated November 20, 2007, the Office granted appellant a schedule award
based on 10 percent right lower extremity impairment for 28.8 weeks, from January 16 to
August 5, 2006. Appellant was paid at the three-fourths rate for claimants with dependents,
$341.87 (three-fourths of his $455.83 weekly pay as of his January 16, 2004 date of injury).4
On November 26, 2007 appellant requested reconsideration. He stated that his hourly
pay rate was $16.43 and his weekly pay rate was $657.20 (40 hours multiplied by $16.43) plus
cost-of-living increases. Appellant stated that he had been reinstated to his position with back

2

Appellant received pay for the period February 20 through March 27, 2002.

3

Appellant received unemployment compensation for July 20, 2002 to June 7, 2003. The employing
establishment did not feel that he was entitled to back pay for the entire period covered by the removal because he
did not seek other employment when he was removed from his position in 2002.
4

In this appeal, appellant is contesting the rate of pay used to calculate his schedule award for permanent
impairment to his right lower extremity, not the impairment rating.

2

pay and that his earnings history for the one year prior to the date of injury should be the basis of
his compensation.
By decision dated April 24, 2008, the Office denied modification of the November 20,
2007 decision, on the grounds that the evidence was insufficient to warrant modification.
On May 10, 2008 appellant requested reconsideration. He asserted that the Office used
an incorrect pay rate because it included unemployment compensation in determining his weekly
pay rate prior to his January 16, 2004 employment injury.5 Appellant stated that his hourly pay
rate at the time of his injury was $16.43 and he worked an average of 44.87 hours a week prior to
his dismissal on February 25, 2002 which was rescinded on June 13, 2003.6
By decision dated August 14, 2008, the Office denied modification of the April 24, 2008
decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that compensation
for a schedule award shall be based on the employee’s “monthly pay.”7 For all claims under the
Act, compensation is to be based on the pay rate as determined under section 8101(4) which
defines “monthly pay” as:
“[T]he monthly pay at the time of injury or the monthly pay at the time disability
begins or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes
regular full-time employment with the United States, whichever is greater….”8
Sections 8114(d)(1) and (2) of the Act9 provide methodology for computation of pay rate
for compensation purposes by determination of average annual earnings at the time of injury.
Sections 8114(d)(1) and (2) specify methods of computation for employees who worked in the
employment for substantially the whole year prior to the date of injury and for employees who

5

The record shows that the Office did not include appellant’s unemployment compensation in determining his
pay rate for the year prior to his January 16, 2004 employment injury.
6

The Office’s procedure manual notes that part-time flexible employees in the postal service are usually
scheduled for 25 or more hours a week but may, in fact, work a full-time schedule. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.3.b.(2)(a) (October 2005). Appellant submitted
evidence that he worked more than 40 hours a week for 19 out of 22 weeks from pay period 21 in 2001 through pay
period 5 in 2002.
7

See 5 U.S.C. § 8107(a).

8

See id. at § 8101(4).

9

Id. at § 8114(d)(1)(2).

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did not work the majority of the preceding year, but for whom the position would have afforded
employment for substantially the whole year if the employee had not been injured.10
The Office’s procedure manual provides methodology for computing weekly pay on an
annual, daily and hourly basis.11 Section 2.900.10.c provides that, for postal employee’s, the
employee’s hourly pay rate is multiplied by 2080 (hours), then divided by 52 (weeks) to
determine the weekly pay rate.
ANALYSIS
Section 8107 of the Act provides that compensation for a schedule award shall be based
on the higher of the employee’s “monthly pay” at the time of injury or the time disability begins
or the time of a compensable recurrence of disability. In this case, the applicable pay rate is the
pay rate at the time of the January 16, 2004 employment injury.
As noted, sections 8114(d)(1) and (2) of the Act specify methods of computation for
employees who worked in the employment for substantially the whole year prior to the date of
injury and for employees who did not work the majority of the preceding year, but for whom the
position would have afforded employment for substantially the whole year if the employee had
not been injured. In this case, sections 8114(d)(1) and (2) do not apply because, although
appellant’s position would have afforded employment for substantially the whole year prior to
the January 16, 2004 employment injury, if not for the removal in 2002, appellant did not, in
fact, work substantially the whole year in 2003 because he did not work for five pay periods
during the period following his reinstatement. The record shows that he did not receive pay for
pay periods 17 through 20 and 25 in 2003. The reason that appellant did not work or use leave
for these five pay periods is not explained in the record.
The applicable method for determining appellant’s weekly pay rate is found in section
2.900.10.c of the Office’s procedure manual which provides that, for postal employees, the
employee’s hourly pay rate is multiplied by 2080 (hours), then divided by 52 (weeks). The
record shows that appellant’s hourly pay rate was $16.43. Multiplying $16.43 by 2080 equals
$34,174.40, divided by 52 equals a $657.20 weekly pay rate. In this case, the employing
establishment did not pay appellant the hourly rate of $16.43 when he returned to work in 2003.
Appellant received $6,687.49 for 451 hours of work and leave. $6,687.49 divided by 451 hours
equals an hourly pay rate of $14.83. There is no explanation of record as to why the employing
establishment did not pay appellant at the $16.43 hourly rate for the 451 hours of work and leave
in 2003. The Office determined that appellant’s weekly pay rate was $445.83 by dividing
$6,687.49 by the 15 weeks of work and leave in 2003.12 However, its computation is not correct
10

The Office defines “substantially the whole year” as “at least 11 months.” Federal (FECA) Procedure Manual,
Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4.a (October 2005).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.10
(October 2005).
12

Appellant worked an average of 30 hours a week during the 15 weeks in 2003 (451 divided by 15). However,
prior to his removal in February 2002, appellant worked more than 40 hours a week for 19 of 22 weeks. There is no
explanation in the record as to why appellant worked fewer hours per week following his reinstatement in 2003.

4

if appellant was not paid at the correct hourly rate. If appellant’s correct hourly pay rate was
$16.43, his weekly pay rate was $657.20 using the formula in section 2.900.10.c of the Office’s
procedure manual ($16.43 multiplied by 2080 equals $34,174.40, divided by 52 equals $657.20).
Multiplying $657.20 by the three-fourths figure for employees with dependents equals $492.90,
rather than the $341.87 weekly amount used by the Office in computing appellant’s schedule
award. On remand, the Office should determine whether the employing establishment used an
incorrect pay rate for the 15 weeks in 2003. If it finds that appellant was entitled to an hourly
pay rate of $16.43 in 2003 and a weekly pay rate of $657.20, using the procedure manual
formula at section 2.900.10, it should then recalculate the amount of his schedule award.
The Board finds that this case must be remanded for further development on the issue of
appellant’s hourly and weekly pay rate. After such further development as the Office deems
necessary, it should issue an appropriate decision on the amount of appellant’s schedule award.
CONCLUSION
The Board finds that this case is not in posture for a decision. Further development is
needed on the issue of appellant’s correct hourly and weekly pay rate. After such further
development as the Office deems necessary, it should issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs’ dated August 14, April 24, 2008 and November 20, 2007 are set aside
and the case is remanded for further action consistent with this decision.
Issued: June 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Medford, OR, Employer
__________________________________________

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

Docket No. 17-0956
Issued: November 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 30, 2017 appellant filed a timely appeal from a November 23, 2016 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 met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 23, 2016.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
1

5 U.S.C. § 8101 et seq.

On December 30, 1997 appellant, then a 39-year-old mail handler, filed a claim for a
traumatic injury (Form CA-1) alleging that on November 27, 1996 he strained his right shoulder
in the performance of duty. OWCP accepted the claim assigned File No. xxxxxx850 for right
shoulder strain, chronic right shoulder bursitis and tendinitis, and a torn right rotator cuff.
Appellant underwent shoulder surgeries on May 26, 1998 and April 13, 1999.
OWCP also accepted appellant’s August 1999 occupational disease claim for an acute
left shoulder strain, assigned File No. xxxxxx808. It administratively combined the left shoulder
claim, assigned File No. xxxxxx808, into File No. xxxxxx850.
A March 13, 1998 magnetic resonance imaging (MRI) scan revealed distal rotator cuff
tendinosis with a juxtacortical herniation pit of unclear significance, moderate-to-marked
acromioclavicular (AC) joint degeneration with hypertrophy and flattening of the underlying
supraspinatus tendon, and some subacromial-subdeltoid bursal fluid indicating inflammatory
changes.
In an operative report dated May 26, 1998, Dr. Alan J. Webb, a Board-certified
orthopedic surgeon, performed a right rotator cuff repair and decompression. In an April 13,
1999 operative report, he discussed appellant’s history of a recurrence of symptoms after the
May 26, 1998 rotator cuff repair. Dr. Webb performed a diagnostic right shoulder arthroscopy,
noting the presence of “significant scar tissue and bursitis,” but a normal rotator cuff repair. He
diagnosed tendinitis and bursitis of the right rotator cuff.
In a decision dated April 17, 2002, the Board affirmed a September 19, 2000 OWCP
decision finding that appellant had no more than 10 percent permanent impairment of his right
arm and a January 20, 2001 decision denying appellant’s request for a hearing as untimely.2
Appellant on July 19, 2011 accepted a position as a custodian.3 He worked as a custodian
until April 2013, when he underwent an authorized right shoulder subacromial decompression
and distal clavicle resection. OWCP paid compensation for total disability beginning
April 12, 2013.
In a work restriction evaluation dated November 5, 2013, Dr. Guenther O. Knoblich, a
Board-certified orthopedic surgeon, released appellant to return to work without restrictions.
Appellant, on November 25, 2013, filed a claim for wage-loss compensation (Form
CA-7) beginning November 3, 2013. By decision dated December 31, 2013, OWCP denied
appellant’s claim for compensation as Dr. Knoblich had released him to resume work on
November 5, 2013.

2

Docket No. 01-1438 (issued April 17, 2002).

3

By decision dated June 16, 2011, OWCP reduced appellant’s wage-loss compensation to zero based on its
finding that his actual earnings as a clerk fairly and reasonably represented his wage-earning capacity. In a decision
dated December 31, 2013, it denied his claim for compensation beginning March 7, 2011 as he had not shown that
the wage-earning capacity determination should be modified.

2

Dr. Knoblich, in a January 27, 2014 work capacity evaluation, diagnosed right shoulder
rotator cuff sprain and syndrome. He released appellant to his permanent limited-duty
employment. Dr. Knoblich related, “The return to regular/usual job is the modified duty he had
been assigned for many years. He is not able to return to the original job at injury (mail
processing clerk).” Dr. Knoblich completed a February 24, 2014 work capacity evaluation form
listing work restrictions.4 He reviewed a February 24, 2014 functional capacity evaluation and
opined that appellant could not work as a mail processing clerk.5
The employing establishment, on March 3, 2014, advised OWCP that the medical
evidence of record indicated that appellant was released to modified rather than full duty. It
questioned whether it needed to offer appellant limited-duty work. OWCP, on March 4, 2014,
responded that he was expected to perform his usual employment absent a medical report
supported by objective findings.
Appellant, on April 7, 2014, requested reconsideration of the December 31, 2013 OWCP
decision.6
In a decision dated November 17, 2014, OWCP denied modification of its December 31,
2013 decision. It found that the January 27 and February 24, 2014 work restriction evaluations
from Dr. Knoblich established that appellant was able to return to his position as a modified
custodian rather than his date-of-injury position. OWCP consequently accepted that appellant
had continued work restrictions as a result of his November 27, 1996 employment injury. It
found, however, that he had not sought suitable employment after Dr. Knoblich issued his
limited-duty restrictions, and thus was not entitled to compensation beginning January 27, 2014.
On December 1, 2014 appellant requested reconsideration.
employing establishment did not offer him a limited-duty position.7

He maintained that the

By decision dated December 23, 2014, OWCP denied appellant’s request for
reconsideration after finding that he had not submitted evidence or raised an argument sufficient
to warrant reopening his case for further merit review under 5 U.S.C. § 8128(a). In a January 15,
2015 decision, it vacated its December 23, 2014 decision after finding that it failed to consider
appellant’s statement and denied modification of its November 17, 2014 decision.

4

Dr. Knoblich determined that appellant could work eight hours per day in his usual modified employment with
restrictions of pushing, pulling, and lifting up to five pounds, reaching from the waist to chest only, and no climbing,
reaching over the shoulder, or repetitive wrist and elbow movements.
5

A February 24, 2014 functional capacity evaluation indicated that appellant could perform sedentary
employment duties.
6

By decision dated June 5, 2014, OWCP granted appellant a schedule award for an additional one percent
permanent impairment of the right upper extremity.
7

In another statement received December 1, 2014, appellant asserted that the nurse assigned by OWCP told him
that she had contacted the employing establishment and found that it did not have work available. He also asserted
that he worked as a nixie clerk rather than a custodian.

3

Appellant appealed to the Board. By decision dated April 14, 2016, the Board affirmed
the November 17, 2014 decision terminating his compensation effective November 3, 2013 as
Dr. Knoblich had released appellant to work without restrictions. The Board set aside the
January 15, 2015 decision, however, after finding that appellant had established partial disability
after November 3, 2013 due to his November 27, 1996 work injury and remanded the case for
OWCP to determine the period of disability. OWCP had found appellant able to return to fullduty work. However, reports from Dr. Knoblich dated January 27 and February 24, 2014
reflected continued work restrictions.
OWCP, on June 22, 2016, referred appellant to Dr. Ronald Teed, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated June 30, 2016, Dr. Teed
reviewed the history of injury and the medical evidence of record. On physical examination, he
measured range of motion, noting that it differed when appellant was distracted. Dr. Teed found
tenderness with palpation and motion greater on the right, 4/5 to 5/5 upper extremity strength,
and no sensory loss. For the right shoulder, he diagnosed a resolved right shoulder strain,
resolved right shoulder bursitis/tendinitis, a torn right rotator cuff, status post three shoulder
surgeries, and glenohumeral and AC joint degeneration unrelated to employment. For the left
shoulder, Dr. Teed diagnosed chronic left shoulder pain and AC and glenohumeral degeneration
unrelated to his injury. He discussed appellant’s history of a 1990 right shoulder strain and noted
that OWCP had accepted a rotator cuff tear, three right shoulder surgeries, and a left shoulder
strain. Dr. Teed found that the shoulder strains should have resolved within six weeks and that
his current disability was most likely the result of degenerative conditions. He related:
“[Appellant’s] work injury of 1997 will not be the kind, class or nature of the
injury that I would expect a rotator cuff tear. In addition, MRI [scan] findings of
the right shoulder on March 13, 1998, showed marked acromioclavicular
degeneration and hypertrophy with underlying impingement and rotator cuff
arthropathy which is a chronic preexisting degenerative condition. Further
evaluation of the left shoulder at a later date showed similar findings.
Intraoperative findings of the right shoulder on April 13, 1999, were that of a
rotator cuff tear on a more probable than not basis due to preexisting rotator cuff
arthropathy about the shoulder and a later failure of the cuff, as there is no
evidence of a rotator cuff tear demonstrated on his initial MRI [scan].”
Dr. Teed diagnosed degeneration of the AC and glenohumeral joints “secondary to
metabolic and constitutional causes with secondary rotator cuff arthropathy most likely the
claimant’s need for treatment and disability.” He opined, “The major etiology of the claimant’s
current disability is preexisting degenerative arthritic conditions unrelated to his accepted
conditions.” Dr. Teed found that appellant had no residuals of the employment injury and that
the “major contributing factor of the claimant’s current presentation is that of preexisting and/or
unrelated degenerative conditions across the shoulder.”
OWCP granted wage-loss compensation pursuant to the Board decision of April 14, 2016
from January 27 to May 7, 2014; then pursuant to a schedule award from May 8 to 29, 2014; and
again from May 30, 2014 to November 23, 2016.

4

On September 7, 2016 OWCP notified appellant of its proposed termination of his
compensation and medical benefits. It found that Dr. Teed’s opinion constituted the weight of
the evidence and established that he had no further employment-related condition or residuals.
In a report dated September 20, 2016, Dr. Knoblich diagnosed adhesive capsulitis of the
right shoulder.
Appellant, in an October 10, 2016 statement, maintained that Dr. Teed had not performed
an examination, but did lift his arm in such a way that caused extreme pain.
By decision dated November 23, 2016, OWCP again terminated appellant’s
compensation and authorization for medical benefits effective that date. It found that the
additional evidence and argument he submitted was insufficient to shift the weight of the
evidence from Dr. Teed’s report.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.8
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.10 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.11
ANALYSIS
In the last appeal, the Board affirmed OWCP’s termination of appellant’s compensation
effective November 3, 2013, but further found that appellant had established continuing
disability after November 3, 2013 due to his November 27, 1996 employment injury based on
reports from Dr. Knoblich. It remanded the case for OWCP to adjudicate the period of
disability.
On remand, OWCP returned appellant to the compensation rolls effective
January 27, 2014. It referred appellant to Dr. Teed for a second opinion examination to
determine his work capacity.

8

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

9

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

10

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

11

Id.

5

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation benefits. In his report dated June 30, 2016, Dr. Teed found no sensory loss on
examination, 4/5 to 5/5 upper extremity strength, and tenderness with motion and palpation. He
diagnosed a resolved right shoulder strain, resolved right shoulder tendinitis/bursitis, a torn right
rotator cuff, status post three shoulder surgeries, and chronic left shoulder pain. Dr. Teed further
diagnosed bilateral AC joint and glenohumeral joint degeneration unrelated to the work injury.
He opined that appellant’s work injury was not the type to cause a rotator cuff tear, noting that a
March 1998 MRI scan revealed preexisting AC joint degeneration, hypertrophy, impingement,
and rotator cuff arthropathy of the right shoulder, and that imaging studies of the left shoulder
showed similar findings. Dr. Teed noted that the “major etiology” causing appellant’s disability
was preexisting arthritis unrelated to the accepted work injury and that the “major contributing
factor” resulting in his symptoms was degenerative and preexisting shoulder conditions. While
he generally found that appellant’s complaints resulted from a preexisting, nonemploymentrelated condition, he failed to provide a fully-rationalized explanation as to why appellant had no
residuals of his accepted left shoulder strain, right shoulder strain, chronic bursitis and tendinitis,
rotator cuff tear, and three right shoulder surgeries.
The Board notes that it is not necessary to prove a significant contribution of factors of
employment to a condition for the purpose of establishing causal relationship.12 If work-related
exposures caused, aggravated, or accelerated appellant’s condition, it is compensable.13
Dr. Teed failed to support his determination with sufficient rationale to establish no further
disability due to the accepted condition. Rather, he advised that the majority of his disability
resulted from nonemployment-related conditions. Consequently, Dr. Teed’s opinion is of
diminished probative value and therefore OWCP has not met its burden of proof to terminate
appellant’s compensation.14
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and authorization for medical benefits, effective November 23, 2016.

12

See H.C., Docket No. 16-0740 (issued June 22, 2016).

13

See Beth P. Chaput, 37 ECAB 158, 161 (1985); see also S.S., Docket No. 08-2386 (issued June 5, 2008).

14

See R.M., Docket No. 11-1701 (issued March 19, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the November 23, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 27, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Quakertown, PA, Employer
__________________________________________

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

Docket No. 13-562
Issued: June 21, 2013

Case Submitted on the Record

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

JURISDICTION
On January 11, 2013 appellant, through her attorney, filed a timely appeal from a
December 7, 2012 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 has more than a four percent permanent impairment to
each upper extremity.
FACTUAL HISTORY
On April 9, 2008 appellant, then a 50-year-old letter carrier, filed an occupational claim
(Form CA-2) alleging a cervical condition causally related to carrying mail in her federal
employment. The medical evidence of record reflects that she had C3-7 decompression
1

5 U.S.C. § 8101 et seq.

laminectomy surgery on October 11, 2007. After development of the evidence, OWCP accepted
the claim for aggravation of cervical degenerative disc disease.
Appellant returned to work in a part-time position. She was referred for a second opinion
examination by Dr. Robert Draper, a Board-certified orthopedic surgeon. In a report dated
September 26, 2011, Dr. Draper reviewed the history and set forth results on examination. He
noted that motor function examination revealed +5 for the arm muscles tested. Dr. Draper
indicated that appellant is capable of performing light-duty work with varying restrictions, due to
his accepted injury. In a report dated March 8, 2012, attending osteopath, Dr. Raymond Bruno,
noted that she had a mild-to-moderately decreased range of cervical motion upper extremity
motor strength testing was 5/5.
In a report dated July 27, 2012, Dr. Emmanuel Jacob, a Board-certified physiatrist, listed
a history and results on examination. He stated that right hand grip was 4/5 and left hand 5/5 and
did not discuss muscle strength testing. Sensation was described as diminished along the C8-T1
dermatome. With respect to a permanent impairment, Dr. Jacob stated that he applied Table
15-20 under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (sixth edition) and found a three percent impairment for sensory
deficit and nine percent for motor deficit. He indicated that the grade modifier for functional
history was two and for clinical studies one, resulting in a 14 percent arm impairment.
In a report dated October 18, 2012, Dr. Jacob provided a recalculation of the arm
impairment. For the right arm, he stated that there was a 17 percent impairment under Table
15-20, based on 13 percent for motor deficit and 4 percent sensory deficit. As to the left arm,
Dr. Jacob found a four percent impairment based on sensory deficit under Table 15-20.
The case was referred for review by an OWCP medical adviser. By report dated
November 6, 2012, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon, stated that
Dr. Jacobs had applied an incorrect table in rating impairment. He noted that Table 15-20 was
for a brachial plexus injury, which was not applicable in this case. Dr. Berman found that there
was no documented evidence of motor deficit. He opined that, under the applicable method for
determining a peripheral nerve impairment under The Guides Newsletter, appellant had a four
percent impairment to each arm based on sensory deficit. The date of maximum medical
improvement was reported as July 27, 2012.
By decision dated December 7, 2012, OWCP issued schedule awards for a four percent
impairment to each arm. The period of the awards was 24.96 weeks commencing
December 1, 2012.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.2 Neither FECA nor the
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

2

regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP’s procedures indicate that The Guides Newsletter “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition” (July/August 2009) is to be applied.5
ANALYSIS
OWCP accepted an aggravation of cervical degenerative disc disease. Under FECA,
there is no provision for a schedule award for impairment to the back, spine or to the body as a
whole.6 Appellant submitted reports from Dr. Jacobs with respect to a permanent impairment to
the upper extremities resulting from the employment injury. Dr. Jacobs identified Table 15-20, a
table for brachial plexus impairments. In July 27 and October 18, 2012 reports, however, he did
not diagnose or discuss a brachial plexus injury or provide any support for the use of Table
15-20. As noted, the accepted condition in this case is aggravation of cervical degenerative disc
disease. As there is no evidence of a brachial plexus injury, a report utilizing Table 15-20 is of
diminished probative value in determining the degree of impairment.7
The Board also notes that, in applying Table 15-20, Dr. Jacobs referred to a motor deficit.
Under the A.M.A., Guides motor deficits are based on muscle strength testing, which depend on
the examinee’s cooperation and are subject to his or her conscious or unconscious control.8 To
be valid, results should be concordant with other pathologic signs and medical evidence and if
measurements are made by one examiner, they should be consistent on different occasions.9
Dr. Jacobs did not describe the manual muscle testing conducted or a description of the results,
other than a brief indication of “4/5” for right hand grip strength. The Board notes that neither
Dr. Draper, the second opinion physician nor Dr. Bruno, an attending osteopath, reported a
motor deficit. The opinion from Dr. Jacob as to the degree of permanent impairment under the
A.M.A., Guides is of diminished probative value.

3

A. George Lampo, 45 ECAB 441 (1994).

4

FECA Bulletin No. 09-03 (March 15, 2009).

5

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part
3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.
6

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

7

See C.D., Docket No. 12-249 (issued June 12, 2012).

8

A.M.A. Guides 425.

9

Id.

3

The November 6, 2012 report of Br. Berman noted that upper extremity impairments
from spinal nerve impairments are calculated using The Guides Newsletter.10 The medical
adviser applied Proposed Table 1 for the C5, C6, C7 and C8 nerve roots, finding one percent
impairment for a grade C (default) impairment based on mild sensory deficit.
The Board notes that the medical adviser provided no discussion with respect to grade
modifiers for functional history and clinical studies under Table 15-7 and Table 15-9. The
Guides Newsletter indicates that the grade C value should be adjusted in accord with the
well-established methodology provided in the sixth edition.11 Dr. Jacobs had found a grade
modifier of two for functional history and one for clinical studies, which would result in a grade
D impairment.12 Dr. Berman did not discuss this aspect of the medical evidence.
The case will accordingly be remanded to OWCP for clarification with respect to the
impairment rating. After such further development as OWCP deems necessary, it should issue
an appropriate decision.
On appeal, appellant’s representative argues that Dr. Jacobs’ opinion should be accepted
by OWCP. For the reasons noted, Dr. Jacobs’ opinion is of diminished probative value.
Appellant can submit new medical evidence with respect to the extent of permanent impairment
to OWCP.
CONCLUSION
The Board finds the case is not in posture for decision of the extent of permanent
impairment to appellant’s arms.

10

Supra note 5.

11

See The Guides Newsletter “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009).
12

The adjustment formula is discussed at A.M.A., Guides 411. Under the table used in The Guides Newsletter, a
grade D impairment for the C6 nerve is two percent.

4

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2012 decision of the Office of
Workers’ Compensation Programs set aside and the case remanded for further action consistent
with this decision of the Board.
Issued: June 21, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, BUREAU OF THE FISCAL
SERVICE, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 16-0579
Issued: May 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 2, 2016 appellant filed a timely appeal from a January 28, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision dated October 24, 2011, to the filing of this appeal,
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 denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are set forth below.
On February 8, 2010 appellant, then a 50-year-old enforcement assistant, filed an
occupational disease claim (Form CA-2) alleging that she sustained a carpal tunnel syndrome
due to the repetitive duties of her position, which included moving boxes and organizing cabinets
of legal folders. She first became aware of her condition and its relation to her employment on
May 29, 2009. Appellant continued to work and used sick or annual leave for intermittent
periods of disability.
In a decision dated May 7, 2010, OWCP denied appellant’s claim. It found that the
factual evidence of record did not establish specific employment factors that could have caused
the alleged condition and that the medical evidence failed to demonstrate a diagnosed medical
condition.
On June 29, 2010 OWCP received appellant’s request for reconsideration. Appellant
provided a detailed description of the work activities she performed from 2007 to 2009, which
included emptying cabinets of legal folders, packing folders, loading boxes of folders onto the
carrier, and unloading the boxes to another part of the office. She indicated that from 2007 to
2010 she organized boxes and folders and created an inventory list of over 700 folders and files
as part of her duties. Appellant continued to submit progress reports from treating physicians,
who noted appellant’s symptoms, and diagnosed right carpal tunnel syndrome, but offered no
rationalized medical opinion tying the condition to the employment factor.
By decision dated September 16, 2010, OWCP affirmed its May 7, 2010 decision with
modification. It found that appellant had established work factors and had established a
diagnosis of right carpal tunnel syndrome, but denied her claim on the basis of insufficient
medical evidence to establish that her diagnosed condition was causally related to accepted
factors of her employment.
On February 28 and July 26, 2011 OWCP received appellant’s requests for
reconsideration.
Appellant received treatment from Dr. Simon Lavi, an orthopedic surgeon. In a
November 4, 2010 report, Dr. Lavi listed appellant’s work duties as an enforcement assistant.
He noted that appellant began to develop low back and bilateral hand pain in September or
October 2007 and believed that her symptoms were a result of repetitive lifting of heavy files at
work. Dr. Lavi reviewed the medical treatment that appellant received and noted that
radiographic examination of appellant’s bilateral wrists did not reveal any significant intraarticular abnormalities. Examination of appellant’s bilateral upper extremities revealed positive
palmar compression test subsequent to Phalen’s maneuver, consistent with carpal tunnel
syndrome. Dr. Lavi diagnosed lumbar discopathy and bilateral carpal tunnel syndrome and
2

Docket No. 15-0989 (issued July 29, 2015).

2

opined that appellant’s condition was related to her employment. In a July 8, 2011 supplemental
report, he again reviewed appellant’s employment duties and the physical requirements of her
job. Dr. Lavi reiterated his opinion that appellant’s carpal tunnel syndrome was related to her
repetitive employment duties.
By decisions dated May 26 and October 24, 2011, OWCP denied modification of its prior
decisions on the basis of insufficient medical evidence to establish causal relationship.
Appellant again requested reconsideration, which OWCP received on October 29, 2014.
In a June 11, 2014 report, Dr. Peter A. Lucero, a family practitioner, indicated that he had
examined appellant for complaints of moderate-to-severe pain to the right wrist and neck pain
radiating to the upper extremity. He noted that she was diagnosed with carpal tunnel syndrome
seven years ago and now experienced depression and anxiety due to constant pain. Dr. Lucero
provided examination findings and diagnosed hyperlipidemia, migraine without aura, major
depressive disorder, and cerebral aneurysm. He recommended that appellant follow up at the
office in two months.
Appellant was also treated by Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon.
In reports dated September 24 and October 2, 2014, Dr. Tauber related that appellant began to
work for the employing establishment in September 2007 as an enforcement assistant. He
reviewed a detailed description of appellant’s employment activities and reported that appellant
was documented to have bilateral carpal tunnel syndrome, narrowing of the central canal and a
disc bulge, and disc protrusion at L4/5 and stenosis at L4/5. Dr. Tauber opined that appellant’s
pathology was industrial in that she carried out extensive repetitive motion duties. He concluded
that appellant had bilateral carpal tunnel syndrome and cervical radiculopathy with cervical
stenosis and a disc protrusion as a result of her repetitive work duties.
By decision dated January 21, 2015, OWCP denied appellant’s request for
reconsideration because it was untimely filed and failed to establish clear evidence of error.
Appellant appealed to the Board. In a decision dated July 29, 2015, the Board affirmed
the January 21, 2015 OWCP decision.3
On August 19, 2015 OWCP received appellant’s reconsideration request, through
counsel. Counsel alleged that OWCP had erroneously determined that Dr.Lavi’s July 8, 2011
report was not properly rationalized because Dr. Lavi did not provide specific details on
appellant’s work activities. Dr. Lavi explained that he had reviewed appellant’s detailed
statement of her work activities and he summarized those work duties on page 3 of his report.
Counsel asserted that OWCP had not fairly read the evidence and, at a minimum, should have
referred appellant’s claim for further development of the medical evidence.
By decision dated January 28, 2016, OWCP denied appellant’s request for
reconsideration because it was untimely filed and failed to establish clear evidence of error.

3

Supra note 2.

3

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
OWCP regulations provide that an application for reconsideration must be received by OWCP
within one year of the date of the OWCP decision for which review is sought.4 The Board has
found that the imposition of the one-year time limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nonetheless undertake a limited review of the evidence previously of record to determine
whether the new evidence demonstrates clear evidence of error.6 OWCP regulations and
procedures provide that it will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for
review shows clear evidence of error on the part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. The evidence must be positive, precise, and explicit, and it
must manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 In this regard, OWCP will limit its focus to a review of
how the newly submitted evidence bears on the prior evidence of record.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflicting medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.11 The Board makes an independent

4

20 C.F.R. § 10.607.

5

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d)
(October 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report, which if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.
8

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

9

Jimmy L. Day, 48 ECAB 652 (1997).

10

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

11

Annie L. Billingsley, 50 ECAB 210 (1998).

4

determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that it improperly denied merit review in the face of such evidence.12
ANALYSIS
In the last merit decision of appellant’s case on October 24, 2011, OWCP denied
appellant’s occupational disease claim because she failed to submit probative medical evidence
which established that her carpal tunnel syndrome was causally related to factors of her
employment. As OWCP did not receive appellant’s most recent request for reconsideration until
August 19, 2015, more than one year after the October 24, 2011 merit decision, the Board finds
that OWCP properly determined that appellant failed to file a timely request for reconsideration.
Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in
denying her claim for compensation.13
The Board notes that the subject matter previously reviewed by the Board in its July 29,
2015 decision, absent further merit review by OWCP is res judicata.14 In her August 19, 2015
reconsideration request, counsel raised a legal argument, contending that OWCP erred in finding
that Dr. Lavi’s July 8, 2011 report was based on an incomplete factual history because it lacked
specific details about appellant’s work activities. He asserted that OWCP had not fairly read the
evidence and should have referred appellant’s claim for further development of the medical
evidence. The Board notes that OWCP had previously reviewed and ruled on Dr. Lavi’s July 8,
2011 report and determined that it was insufficient to establish causal relationship. This report
from Dr. Lavi was already part of the record reviewed by the Board in its July 29, 2015 decision.
To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.15 The Board has previously reviewed the case record
and found no clear evidence of error in OWCP’s October 24, 2011 merit denial of the claim.
Appellant’s reconsideration request fails to establish that OWCP committed an error in denying
appellant’s occupational disease claim and appellant has not otherwise submitted evidence of
sufficient probative value to raise a substantial question as to the correctness of OWCP’s last
merit decision. Accordingly, she has failed to establish clear evidence of error on the part of
OWCP such that it erred in denying merit review.
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.
12

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

13

See Robert F. Stone, 57 ECAB 292 (2005); see also D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB
149 (2005).
14

See J.V., Docket No. 14-788 (issued October 19, 2015); see also D.S., Docket No. 14-12 (issued
March 18, 2014).
15

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Indianapolis, IN, Employer
__________________________________________

)
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)
)
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)
)
)

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

Docket No. 09-1150
Issued: February 19, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 25, 2009 appellant filed a timely appeal from a January 9, 2009 merit decision
of the Office of Workers’ Compensation Programs and a February 27, 2009 nonmerit decision
denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits and nonmerits of this case.
ISSUE
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
denied appellant’s request for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128.

FACTUAL HISTORY
This is the second time this case has been before the Board.1 On March 21, 2008 the
Board found that, because appellant alleged her emotional condition was aggravated by the
requirements of her work as an accountant, she had established a compensable factor of
employment. The Board further found that the medical evidence appellant submitted was
sufficient to raise an inference of causal relationship between appellant’s emotional condition
and her accepted employment factor. Accordingly, the Board set aside the Office’s
September 15, 2006 decision and remanded the case to the Office to prepare a statement of
accepted facts and to further develop the medical evidence. The history of the case as provided
in the Board’s prior decision is incorporated herein by reference.
On December 29, 2004 Dr. Michael Chan, a Board-certified psychiatrist, reported that
appellant believed that communication and direction she received concerning the inter-fund
transactions was nonspecific, inaccurate and sparse during her OCONUS training. Because of
these factors, she was unable to complete this segment of her work assignment. Dr. Chan
advised that appellant’s inability to complete this portion of her assignment and the prolonged
stress she endured in her office environment caused a relapse of major depression, recurrent and
severe. He stated:
“Prior to this relapse, she had been stabilized on Effexor. This relapse manifested
itself in the following manner: poor concentration, erratic sleeping patterns, high
blood sugars [due to her diabetes], anxiety, depressive moods and chest pains. In
addition to the above symptoms, [appellant’s] relapse has put an inordinate
amount of strain on her current marriage. She believes that what she wants and
needs is unimportant, therefore, she hesitates to communicate fully with her
husband and children. This causes misunderstandings in her marriage.”
On March 14, 2005 Dr. Sorabh Khandelwal, Board-certified in emergency medicine,
reported findings on examination and diagnosed major depression. On June 13, 2005 Dr. Frank
Birinyi, Board-certified in emergency medicine, reported findings on examination and diagnosed
depression with suicidal ideation.
On June 24, 2005 Dr. Yiu-Chung Chan, a Board-certified psychiatrist, reporting findings
following neuropsychiatric testing and diagnosed major depressive disorder, panic attacks with
agoraphobia disorder traits, diabetes mellitus and hyperlipidemia. On August 12, 2005 Dr. Chan
reported that in addition to the aforementioned conditions, appellant also unsuccessfully
attempted suicide. He opined that because of the severe nature of appellant’s condition,
appellant should remain off work and receive disability indefinitely. Appellant submitted reports
from a social worker.

1

E.M., 60 ECAB __ (Docket No. 07-1074, issued March 21, 2008). On November 22, 2004 appellant filed an
occupational disease claim (Form CA-2) alleging that she became depressed and developed anxiety due to factors of
her employment. She attributed her condition inadequate training, job procedures and oral communication by
management over a period of months caused job stress, profound depression and anxiety.

2

On February 9, 2005 Dr. Sarah Jonaus, a Board-certified internist, reported that
appellant’s depression prevented her from working. Dr. Jonaus reported:
“[Appellant] has been a patient of this clinic for many years. She was first
diagnosed with depression in 1994, and was stable until October 2004. At that
time, [appellant] had fairly acute and significant worsening of her anxiety and
depression. This was due to changes that occurred at work as well as social
stressors at home with her family. Unfortunately, at that time she was unable to
function well, and I did advise her to take some time off of work to facilitate her
recovery. Since that time, [appellant] has required multiple changes in
medication including increasing her dose of Effexor and use of benzodiazepines
including both Xanax and Ativan. She was evaluated at M[oun]t Carmel East
hospital for profound depression and has been treated in group therapy as well as
private therapy and evaluations by a psychiatrist. Because of her profound
depression, the patient was unable to work.
“In addition to causing significant mental strain, [appellant’s] worsening
depression and anxiety also affected her diabetic control. During the time of her
increased anxiety and depression, [appellant’s] blood sugars were elevated and
much more difficult to control as was her blood pressure.”
Appellant submitted a January 17, 2006 report from Dr. Janet Clark, Ph.D, in
psychology, who noted that appellant was involved in a dysfunctional marriage from 1969 to
2000 in which she received minimal emotional support from her husband. This led to a total loss
of self-esteem, including a suicide attempt in 1980. Dr. Clark related that appellant began to
experience physical problems in 1992, which were diagnosed as symptoms of diabetes in 1993.
As noted earlier, appellant was diagnosed as having major depression in 1994. Dr. Clark further
noted that at the time of the breakdown from job stress around September 2004, the only other
issue she was experiencing was her mother’s need for heart surgery.
Dr. Clark related that appellant experienced irritability, sleeplessness, lack of contact with
other family members, low energy level, mood swings, crying spells and feelings of hopelessness
and helplessness. She diagnosed major depression, recurrent, severe, panic disorder with
agoraphobia, deferred, obsessive-compulsive features. Dr. Clark noted that appellant returned to
work in January 2005, but attempted suicide in June 2005. She concluded:
“It is my opinion that [appellant’s] disability is directly related to her employment
as accountant [with the employing establishment] as is typical of people who are
accountants, [appellant’s] personality characteristics include perfectionism,
devotion to work and productivity and overconscientiousness. When [appellant]
was unable to perform her job correctly, this placed a great deal of stress on her.
She attempted to solve the problem through a number of means, but she had no
experience and inadequate training in this specific area, so that she was still
unable to complete her job assignment with nonretail interfund transactions. Over
time, she felt more and more stressed, leading to her emotional breakdown and
her inability to function at work. Following return to work, she remained stressed
and soon relapsed, which led to an inability to perform job duties and a suicide

3

attempt.... There are major disruptions in recreation and relationships as a
function of her psychological difficulties and self-esteem is low. She is unable to
work.”
On remand, the Office referred appellant, together with a statement of accepted facts and
list of questions, to Dr. Lee Howard, psychologist, for a second opinion examination. By report
dated May 15, 2008, Dr. Howard presented findings on examination, a review of appellant’s
medical history and diagnosed major depression and panic disorder with agoraphobia in
remission. He reported that test results indicated that appellant was simulating physical and
emotional symptoms as well as cognitive dysfunction. Dr. Howard reported that test results
revealed appellant “probably has legitimate psychopathology but [was] also exaggerating the
extent of the same psychopathology … for secondary gain.”
Dr. Howard opined that appellant’s condition was produced by life stressors, not a single
reaction to a single environmental stressor from work. He opined that the active stressors in
2004 were her mother’s bad heart surgery and in 2007 the stressor was her separation from her
second husband. Appellant’s depression was a preexisting condition, first documented in 1980
after an attempted overdose and psychiatric hospitalization caused by marital problems.
Dr. Howard concluded:
“A. Major depression clearly predates the industrial accident in question.
“B. Panic disorder with agoraphobia is reported to have a contemporary onset,
although the overall clinical history is revealing multifaceted problems.
“C. Thus there is no evidence to support that the 2004 industrial accident has
caused [sic] a specific psychological or psychiatric disorder.”
By decision dated June 25, 2008, the Office accepted that appellant’s transition to a new
accounting system in March 2004 as a compensable employment factor but denied the claim
because the evidence of record did not demonstrate that the claimed medical condition was
caused by the identified employment factor.
On September 11, 2008 appellant requested reconsideration.
Appellant submitted a note, dated July 16, 2008 signed by Dr. Janet Clark, Ph.D, in
psychology, who listed the dates she treated appellant and diagnosed appellant with major
depression and panic disorder with agoraphobia. Dr. Clark reported that she continued to treat
appellant for these conditions.
Appellant submitted an August 14, 2008 note in which Dr. Marc Clemente, Boardcertified psychiatrist, reported the dates when he treated appellant and diagnosed major
depressive disorder. In another note, dated November 22, 2005, Dr. Jerold H. Altman,
psychiatrist, diagnosed the same condition.
Appellant also submitted a note, dated August 22, 2008, signed by a family member.

4

By decision dated January 9, 2009, the Office denied modification of it prior decision
because the evidence appellant submitted was insufficient to warrant modification.
On January 20, 2009 appellant requested reconsideration.
Appellant submitted a note dated February 20, 2006.
By decision dated February 27, 2009, the Office denied appellant’s reconsideration
request because appellant did not demonstrate the Office erroneously applied or interpreted a
specific point of law, raise a new legal argument not previously considered by the Office or
submit new relevant and pertinent evidence not previously considered by the Office.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

5

record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’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 employee, 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 employee.7
ANALYSIS -- ISSUE 1
The Board finds this case not in posture for decision because an unresolved conflict of
medical opinion exists between appellant’s attending physicians, on one side, and Dr. Howard,
the Office’s second opinion physician, on the other, concerning whether appellant’s condition
was caused by the accepted employment factor.
The reports from Drs. Jonaus and Chan indicated that appellant experienced increasing
anxiety, self-doubt, hopelessness and crying spells related to stress at work since being
transferred to a new position in January 2004. Drs. Jonaus and Chan attributed an aggravation of
her condition, in part, to the work requirements of her position. Furthermore, appellant’s
psychologist, Dr. Clark, opined that appellant’s difficulties in performing her job duties
regarding nonretail interfund transactions led to an aggravation of her emotional condition.
These physicians noted that she felt overwhelmed, stressed and concerned about her ailing
mother, who had recently undergone open heart surgery. Dr. Jonaus diagnosed depression and
anxiety and released appellant from work. Dr. Chan stated that appellant experienced poor
concentration, erratic sleeping patterns, high blood sugar level due to her diabetes, anxiety,
depressive moods and chest pains. He noted that she had endured an emotionally abusive 30year marriage and had developed a major depression condition, for which she had been
prescribed Effexor. Dr. Chan advised that appellant’s problems with completing her assignments
and the prolonged stress she endured in her office environment caused a relapse of major
depression, recurrent and severe.
On the other side of the conflict is Dr. Howard, the Office’s second opinion physician,
who diagnosed major depression and panic disorder with agoraphobia. He opined that
appellant’s depression was a preexisting condition. Dr. Howard opined that appellant’s
condition was produced by life stressors and not a single environmental stressor from work. He
did not specifically address the accepted employment factor or whether or not it contributed to,
caused or aggravated appellant’s condition.
Thus, the Board finds a conflict of medical opinion exists concerning whether appellant’s
condition was caused by the accepted employment factor of April 27, 2004 or, as Dr. Howard
7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

6

put it, “life stressors.” Section 8123 of the Federal Employees’ Compensation Act 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.8 The case will be remanded to the Office to refer appellant, a statement of accepted
facts and the medical record to an appropriate specialist or specialists to resolve the conflict of
opinion. Following this and any other development deemed necessary, the Office shall issue an
appropriate decision in the case.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 27 and January 9, 2009 decisions of
the Office of Workers’ Compensation Programs are set aside and the case remanded for further
development consistent with this decision.
Issued: February 19, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

7