United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, FAIR HOUSE
ENFORCEMENT CENTER, Atlanta, GA,
Employer
__________________________________________

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Appearances:
Adam J. Conti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-598
Issued: November 1, 2007

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 December 27, 2006 appellant, through counsel, filed a timely appeal from a
September 22, 2006 decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed a wage-earning capacity decision dated December 9, 2005.
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 met its burden of proof in reducing appellant’s
compensation effective December 25, 2005 based on its determination that the constructed
position of tourist information assistant represented her wage-earning capacity.

FACTUAL HISTORY
On July 24, 1997 appellant, then a 47-year-old supervisory equal employment specialist,
filed an occupational disease claim alleging that in June 1997 she first realized her carpal tunnel
syndrome was employment related.1 The Office accepted the claim for carpal tunnel syndrome
and authorized bilateral carpal tunnel release, with right carpal tunnel surgery performed on
April 18 and August 1, 2000 and right wrist triangular fibrocartilage complex debridement on
January 7, 2003. Appellant stopped work on March 27, 2000. By letter dated June 21, 2000, the
Office placed her on the periodic rolls for temporary total disability.
On June 24, 2004 Dr. Joseph J. Hoffman, a second opinion specialist, reported that
appellant was capable of working eight hours with permanent restrictions. He diagnosed
bilateral carpal tunnel syndrome with residual synovitis and tendinitis. Dr. Hoffman opined that
appellant continued to have residuals of her accepted carpal tunnel which limits her activity. He
opined that he would be unable to perform any position requiring repetitive movement of the
wrists and hands or any heavy lifting. Dr. Hoffman noted that appellant “appears to have
significant psychological overlay,” which he was not qualified to evaluate, “but would limit her
return to her previous employment.” The restrictions included no repetitive movements of the
wrist or elbows, pushing, pulling and lifting up to 10 pounds for eight hours, up to two hours of
reaching above the shoulders, up to four hours of reaching and no climbing. Dr. Hoffman noted
no limitation as to operating a motor vehicle for eight hours a day.
On April 21, 2005 Steven Marrinson, Ph.D, a treating clinical psychologist, diagnosed
severe major depressive incident and opined that appellant was temporarily totally disabled. He
reported that she “had a severe relapse of her depressive symptoms” following receipt of
correspondence from the Office. Dr. Marrinson stated that appellant was unable to perform the
duties of the selected positions of telephone sales representative or reservation agent due to her
psychiatric condition.
On April 21, 2005 Dr. Frank R. Joseph, an attending Board-certified orthopedic surgeon,
reviewed Dr. Hoffman’s report and had “no major disagreement” with his opinion. A physical
examination revealed positive bilateral Phalen’s test and positive left side Tinel’s sign and that
appellant’s “[h]ands are well healed.” On September 15, 2005 Dr. Joseph indicated that
appellant was capable of working with restrictions which included no overtime, no lifting more
than 10 pounds and limited use of the upper extremities.
Efforts to find a suitable position for appellant at the employing establishment were
unsuccessful. On October 7, 2004 the Office referred her for vocational rehabilitation
counseling. The vocational counselor worked with appellant, but was unsuccessful in obtaining
employment.
In a July 14, 2005 report, Yvonne B. Parker, the vocational counselor, listed appellant’s
functional limitations as no repetitive movements of the wrist or hands, no heavy lifting more
than 15 pounds on a repetitive basis. She found a position within appellant’s medical and
vocational capacities as a tourist information assistant, Department of Labor, Dictionary of
1

Appellant was removed from the employing establishment effective July 26, 2003.

2

Occupational Titles (DOT) No. 237.367-050. Ms. Parker noted that this position was within the
sedentary range of activities which required occasional lifting of up to 10 pounds. Physical
duties included no climbing, fingering, handling, reaching, crawling, kneeling, stooping or
balancing. Duties of the position included greeting tourists on the telephone and in person,
providing information on tourist attractions and answering questions, assisting in planning
itineraries for tourists, advising tourists of traffic regulations, selling hunting and fishing
licenses, providing information on hunting, camping and fishing regulations and composing
letters responding to inquiries, maintaining sales, personnel license and other records and
contacting hotel, resort operators and motels by telephone or letter to obtain advertising
literature. Ms. Parker noted that appellant’s previous work experience would meet the 30 days to
3 months specific vocational preparation. She listed the average weekly wage earnings of a
tourist information assistant as $8.50 per hour. Ms. Parker noted that the position was available
in sufficient numbers so as to make it reasonably available to appellant within her commuting
area.
In a letter dated July 18, 2005, the Office found that the plan developed for appellant’s
return to work as a tourist information assistant was within her physical limitations. Appellant
was informed that she would receive 90 days of assistance to locate a position and at the end of
this period, her compensation would be reduced.
In a letter dated July 27, 2005, appellant contended that she was unable to perform the
position of tourist information assistant. She noted that she was unable to drive to work every
day as driving aggravated her condition.
In a September 15, 2005 report, Dr. Joseph diagnosed work-related depression, bilateral
carpal tunnel release, left cubital tunnel syndrome and right wrist triangular fibrocartilage
complex debridement. A physical examination revealed positive Tinel’s sign on the right, well
healed hands and bilateral trace tenderness and swelling. He indicated that appellant had
permanent work restrictions of no lifting more than 10 pounds, no overtime and limited use of
both upper extremities.
On October 28, 2005 the vocational rehabilitation file for appellant was closed following
unsuccessful placement. The Office’s rehabilitation specialist noted that it had been confirmed
with the rehabilitation counselor that the position of tourist information assistant, with an annual
salary of $17,200.00, was sufficiently available in appellant’s commuting area.
On November 8, 2005 the Office proposed a reduction in appellant’s wage-loss
compensation based on her capacity to earn wages as a tourist information assistant at $330.77
per week. The constructed position was based upon her experience, education, medical
restrictions and a labor market study. Appellant was qualified for the position and sufficient
positions were reasonably available in her commuting area. Utilizing the wage-earning capacity
computation Form CA-816, the Office determined that appellant’s compensation would be
reduced to $3,008.00 every four weeks. It indicated that her salary, when her disability began
was $1,310.15 per week; that the current adjusted pay rate for appellant’s job on the date of
injury was $1,553.12; and that she was capable of earning $330.77 per week, the rate of the
tourist information assistant. The Office determined that appellant had a 21 percent wageearning capacity, which resulted in an adjusted wage-earning capacity of $275.13. It determined

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that she had a loss of wage-earning capacity of $1,053.02. The Office concluded that, based on a
66 and 2/3 percent rate, her new compensation rate was $690.01 per week (adjusted by cost-ofliving adjustments to $752.00). It requested that appellant submit additional evidence or
argument within 30 days if she disagreed with the proposed action.
In a letter dated December 1, 2005, appellant’s counsel disagreed with the proposal to
reduce her compensation and requested an additional 30 days to submit evidence.
By decision dated December 9, 2005, the Office finalized the reduction in appellant’s
compensation effective December 25, 2005 based on her ability to earn wages as a tourist
information assistant in the amount of $330.77 per week.
In a letter dated December 11, 2005, appellant noted that she has been treated by
Dr. Marrinson for anxiety and severe depressive episodes, which the Office had ignored. She
alleged that she received no vocational rehabilitation and was unable to use a computer or
typewriter. Appellant also alleged that her condition was aggravated by daily driving. She
contended that her permanent restrictions preclude any repetitive upper extremity, wrist or arm
movement and she has pain and problems writing.
On December 16 and 19, 2005 appellant requested a hearing before an Office hearing
representative, which was held on June 29, 2006.
On December 22, 2005 Dr. Joseph noted that appellant’s permanent work restrictions
remained unchanged. In a March 16, 2006 report, he opined that appellant was totally disabled.
Dr. Joseph diagnosed work-related depression, bilateral carpal tunnel release, left cubital tunnel
syndrome and right wrist triangular fibrocartilage complex debridement. A physical examination
revealed bilateral negative Phalen’s test, left cubital canal positive Tinel’s sign and well-healed
previous incisions.
Subjective complaints included, “multiple functional complaints[,]
[p]ersistent depression” and increased bilateral cubital tunnel complaints.
In a March 31, 2006 vocational rehabilitation closure report, Ms. Parker noted the efforts
undertaken for appellant’s vocational rehabilitation. She stated that she had contacted the
Georgia Department of Labor which verified that the position of tourist information assistant was
readily available in appellant’s commuting area.
Subsequent to the June 29, 2006 hearing, appellant submitted additional evidence. On
April 11, 2005 Dr. Marrinson opined that appellant was totally disabled due to “unresolved
issues regarding her employment” at the employing establishment, “which led her to complete
psychiatric decompensation several years ago.” He opined that she was unable to return to work
with the employing establishment at this time.
In a January 25, 2006 report, Dr. Joseph stated that he had been treating appellant since
2001 for a 1996 employment injury and she has permanent restrictions due to the injury.
In a June 15, 2006 report, Dr. Joseph diagnosed work-related depression, bilateral carpal
tunnel release, left cubital tunnel syndrome and right wrist triangular fibrocartilage complex
debridement. He stated that he had reviewed the position of tourist information assistant and that
the position “does not appear appropriate for [appellant] and is not approved.”
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By decision dated September 22, 2006, the Office hearing representative affirmed the
reduction of appellant’s wage-loss compensation based upon the constructed position of tourist
information assistant.2 He found that appellant’s depression was a subsequently acquired
condition and was immaterial to the determination of whether she was capable of performing the
position of constructed position of tourist information assistant.
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
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
Section 8115 of the Act5 and Office regulations provide that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his wage-earning capacity. If the actual earnings do not fairly and reasonably represent
wage-earning capacity or the employee has no actual earnings, his or her wage-earning capacity
is determined with due regard to the nature of the injury, the degree of physical impairment,
usual employment, age, qualifications for other employment, the availability of suitable
employment and other factors or circumstances which may affect the wage-earning capacity in
his or her disabled condition.6
The Office must initially determine a claimant s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which the Office relies must provide a detailed description of the
condition.7 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor, Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
2

The Board notes that following the September 22, 2006 decision by the Office hearing representative, the Office
received additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R.
§§ 501.2(c); Donald R. Gervasi, 57 ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A.
Kayes, 54 ECAB 373 (2003).
3

T.T., 58 ECAB ___ (Docket No. 06-1674, issued January 29, 2007); James M. Frasher, 53 ECAB 794 (2002).

4

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

5

5 U.S.C. § 8115.

6

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 4.

7

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

8

John D. Jackson, supra note 4.

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capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.9 Finally, application of the principles set forth in Albert C. Shadrick10 will result in the
percentage of the employee’s loss of wage-earning capacity.11
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 impairment results from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions.12 Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.13
ANALYSIS
The Board finds that the Office properly determined that the constructed position of
tourist information assistant represents appellant’s wage-earning capacity. The Office adjusted
her compensation on the grounds that she was capable of performing the duties of the
constructed tourist information assistant.
The August 17, 2004 report and work capacity evaluation by Dr. Hoffman, a second
opinion physician, and Dr. Joseph’s April 21, 2005 report established that appellant was no
longer totally disabled and could perform sedentary work. As appellant was unable to obtain
employment through vocational rehabilitation efforts, the Office determined that the constructed
position of tourist information assistant represented her wage-earning capacity. The constructed
position was identified as sedentary and did not require reaching as a required function of the
position. It conformed to the restrictions listed by both Drs. Hoffman and Joseph. The weight of
the medical evidence is represented by the August 17, 2004 report by Dr. Hoffman and the
reports dated April 21 and September 15, 2005 by Dr. Joseph, which found that appellant could
perform sedentary work.
Other evidence received prior to the reduction of compensation does not establish that the
constructed tourist information assistant position was not medically or vocationally suitable. In
both his reports, Dr. Marrinson indicated that appellant was totally disabled due to her severe
depression. The Board notes that the record establishes that appellant’s psychiatric condition
was acquired subsequent to the accepted carpal tunnel syndrome. As previously noted, any
incapacity to perform the duties of the selected position resulting from subsequently acquired
9

James M. Frasher, supra note 3.

10

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

11

J.W., 58 ECAB ___ (Docket No. 06-1874, issued March 22, 2007).

12

Sherman Preston, 56 ECAB ___ (Docket No. 05-721, issued June 20, 2005).

13

John D. Jackson, supra note 4.

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positions is immaterial to the loss of wage-earning capacity which can be attributed to the
accepted employment injury.14
Subsequent to the reduction of her compensation appellant submitted reports dated
December 22, 2005, January 25, March 16 and June 15, 2006 by Dr. Joseph. The December 22,
2005 and January 25, 2006 reports indicate that appellant has permanent work restrictions.
These reports do not support appellant’s contention that she was incapable of performing the
position of tourist information assistant. In his March 16, 2006 report, Dr. Joseph concluded that
appellant was totally disabled. On June 15, 2006 he stated that he had reviewed the position of
tourist information assistant and concluded that it was not approved as the position was
inappropriate for appellant. Dr. Joseph provided no rationale in either the March 16 or June 15,
2006 report explaining why appellant was totally disabled and, thus, they are entitled to little
probative value.15 He did not indicate whether he reviewed a description of the constructed
tourist information assistant beyond noting that it was not approved. Further, he did not explain
why the accepted employment-related condition prevented appellant from performing the duties
of the constructed position. An explanation as the cause of his total disability is important as the
record contains evidence of a subsequently acquired condition.16
The medical evidence, therefore, established that appellant was physically capable of
performing the tourist information assistant position.
Appellant’s vocational rehabilitation counselor determined that she was able to perform
the position of tourist information assistant. She opined that, based on her experience, education,
medical restrictions and a labor market survey, appellant was well qualified for the position of
tourist information assistant and that sufficient positions were reasonably available in her
commuting area.
The Office considered the proper factors, such as availability of employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the tourist information assistant position represented appellant’s wage-earning
capacity.17 The weight of the evidence establishes that appellant had the requisite physical
ability, skill and experience to perform the duties of tourist information assistant and that such a
position was reasonably available within the general labor market of her commuting area.
The Office properly determined appellant’s loss of wage-earning capacity in accordance
with the formula developed in the Shadrick decision18 and codified at 20 C.F.R. § 10.403. It
calculates an employee’s wage-earning capacity in terms of percentage by dividing the
14

See John D. Jackson, supra note 4.

15

Richard A. Neidert, 57 ECAB ___ (Docket No. 05-1330, issued March 10, 2006).

16

Any incapacity to perform the duties of a selected position resulting from subsequently acquired conditions are
immaterial to the loss of wage-earning capacity that can be attributed to the accepted employment injury and for
which appellant may receive compensation. See John D. Jackson, supra note 4.
17

Loni J. Cleveland, 52 ECAB 171 (2000).

18

Albert C. Shadrick, supra note 10.

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employee’s earnings by the current pay rate for the date-of-injury job.19 The Office noted that
appellant’s salary when her disability began was $1,310.15 per week; that the current adjusted
pay rate for her job on the date of injury was $1,553.12 and that she was currently capable of
earning $330.77 per week, the rate of the tourist information assistant. It then determined that
she had a 21 percent wage-earning capacity, which resulted in an adjusted wage-earning capacity
of $275.13. The Office then determined that appellant had a loss of wage-earning capacity of
$1,035.02 per week. It concluded that, based on a 66 and 2/3 percent rate, appellant’s new
compensation rate was $690.01 per week (adjusted by cost-of-living adjustments to $752.00).
The Board finds that the Office correctly applied the Shadrick formula and, therefore, properly
found that the position of tourist information assistant reflected appellant’s wage-earning
capacity effective December 25, 2005.20
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
October 30, 2005 based on its determination that the constructed position of tourist information
assistant represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 22, 2006 is affirmed.
Issued: November 1, 2007
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
19

20 C.F.R. § 10.403(c).

20

Elsie L. Price, 54 ECAB 734 (2003); Stanley B. Plotkin, 51 ECAB 700 (2000).

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

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

Docket No. 10-1652
Issued: February 14, 2011

Case Submitted on the Record

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

JURISDICTION
On June 4, 2010 appellant filed a timely appeal from the April 19, 2010 merit decision of
the Office of Workers’ Compensation Programs, which denied his claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether appellant sustained a neck injury in the performance of duty on
November 15, 2008.
FACTUAL HISTORY
On December 2, 2008 appellant, then a 44-year-old letter carrier, completed a claim for
compensation alleging that he sustained a neck injury in the performance of duty on
November 15, 2008. He was casing mail when he heard a loud crashing noise behind him.
Appellant twisted his head quickly to the right to see that a metal container of presorted flats had
fallen off a power pallet jack approximately 10 feet away. He described his injury as severe neck

pain with numbness and tingling radiating down both arms into his hands along with severe
headaches.
On November 26, 2008 appellant informed Dr. Steven Levin, his pain specialist, that he
suffered an injury at work on November 15, 2008 and was experiencing neck pain radiating into
his arms with tingling. Dr. Levin recommended a spine surgery consultation.
On December 17, 2008 Dr. Thomas J. Arkins, the neurological consultant, related
appellant’s history of injury and complaints. A physical examination revealed moderate
discomfort in the posterior cervical, suboccipital and interscapular areas with associated
tenderness of the trapezial, suprascapular and paraspinous muscles. There was limited range of
motion in the neck secondary to pain in flexion, extension and lateral rotation. Extremes of
flexion and extension maintained for 20 to 30 seconds caused a slight increase in tingling in the
hands. Dr. Arkins stated that appellant had a recent neck injury and was unable to work pending
further workup.
Radiological tests showed mild degenerative changes in the cervical spine with mild
narrowing of the disc spaces and endplate irregularity at C4-5, C5-6 and C6-7 with associated
uncovertebral spondylosis and osteophyte formation. There was no evidence of cervical spine
instability with flexion and extension views. There was no acute fracture or dislocation.
In a decision dated January 15, 2009, the Office denied appellant’s claim for
compensation. It found that the claimed event occurred as alleged. The Office found, however,
that there was no medical evidence providing a history of the injury, a firm diagnosis and
medical rationale as to why the doctor felt appellant’s medical condition was caused or
aggravated by the accepted work incident. It noted that Dr. Arkins reported a recent neck injury
but failed to diagnose a specific injury.
On a form report, Dr. Arkins diagnosed “cervical injury.” He indicated with a mark that
this condition was caused or aggravated by an employment injury on November 15, 2008: “see
December 17, 2008 report.”
In a narrative report, Dr. Arkins restated that appellant was injured at work on
November 15, 2008 based on his history of turning rapidly, producing progressive pain in the
musculature around the cervical spine suggesting definitively that the cervical spine was injured,
“at least a cervical strain injury.”
In a decision dated May 20, 2009, the Office reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that Dr. Arkins’ opinion on causal relationship
was insufficient because he provided merely a conclusion unsupported by medical rationale.
On September 4, 2009 Dr. Arkins again noted that appellant sustained a cervical spine
injury on November 15, 2008: “There is no doubt that this injury is directly work related. He
was working for the [p]ostal [s]ervice at the time and reacted to a loud crashing noise with rapid
twisting of his neck, and sustained soft tissue injuries which have caused him persistent pain and
limitation of range of motion and limited work capability.”

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In a decision dated April 19, 2010, the Office again reviewed the merits of appellant’s
claim and denied modification of its prior decision. It found that Dr. Arkins failed to provide
objective medical reasoning to support his opinion that appellant’s neck condition was a result of
the rapid twisting reaction to a loud crashing noise.
On appeal, appellant provides a timeline with comments. He argues, among other things,
that Dr. Arkins provided objective medical rationale to support his opinion.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.1 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.2
Causal relationship is a medical issue,3 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,4 must be one of reasonable medical certainty,5
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.6
Although the claimant has the burden to establish the critical element of causal
relationship through rationalized medical opinion evidence based on a proper factual and medical
background, it is well established that proceedings under the Act are not adversarial; the Office
shares responsibility in the development of the evidence to see that justice is done.7

1

5 U.S.C. § 8102(a).

2

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

3

Mary J. Briggs, 37 ECAB 578 (1986).

4

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

5

Morris Scanlon, 11 ECAB 384, 385 (1960).

6

William E. Enright, 31 ECAB 426, 430 (1980).

7

E.J., 61 ECAB ___ (Docket No. 09-1481, issued February 19, 2010).

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ANALYSIS
The Office accepts as factually established that appellant was in the course of his
employment as a letter carrier on November 15, 2008 when he heard a loud crashing noise
behind him and twisted his head quickly to the right in response. So appellant has met his
burden to establish that he experienced a specific event, incident or exposure occurring at the
time, place and in the manner alleged.
The question that remains is whether this incident caused an injury. Appellant sought
reasonably prompt medical attention on November 26, 2008, when he informed his pain
specialist that he suffered a work injury on November 15, 2008 and was experiencing radiating
neck pain. Dr. Arkins, the neurological consultant, related an accurate history of injury and
reported positive findings on physical examination, including moderate discomfort in the
posterior cervical, suboccipital and interscapular areas with associated tenderness of the
trapezial, suprascapular and paraspinous muscles. He also found limited range of motion in the
neck secondary to pain in flexion, extension and lateral rotation. Dr. Arkins concluded that
appellant had sustained a recent neck injury, which he later identified as “at least a cervical strain
injury.”
On September 4, 2009 Dr. Arkins was unequivocal when he stated that appellant’s
reaction to a loud crashing noise at work on November 15, 2008 -- a rapid twisting of his neck -caused soft-tissue injuries resulting in pain, limitation of motion and limited work capacity.
The Board notes that, while Dr. Arkins’ opinion is not completely rationalized, his
reports consistently support that appellant sustained an employment-related neck injury on
November 15, 2008. While his reports are not sufficient to discharge appellant’s burden of proof
to establish her entitlement to compensation benefits, they are sufficient to require the Office to
further develop the medical evidence.8
The Board will set aside the Office’s April 19, 2010 decision denying modification of the
denial of appellant’s claim for compensation. On remand, the Office shall obtain a wellreasoned medical opinion, based on a proper factual and medical history, on whether the
November 15, 2008 work incident caused an injury to appellant’s neck. After such further
development as may be necessary, it shall issue an appropriate final decision on appellant’s
claim for compensation.
Appellant argued on appeal that Dr. Arkins provided objective medical rationale to
support his opinion. The Office had denied appellant’s claim on the grounds that the medical
opinion evidence was insufficient to establish causal relationship. Dr. Arkins did support that
appellant sustained a cervical spine injury on November 15, 2008 based on his history of turning
rapidly, producing progressive pain in the musculature around the cervical spine. While he did
not fully explain the physiological consequences of the rapid turning, his opinion is sufficiently
supportive of appellant’s claim to require the Office to further develop the medical opinion
evidence on causal relationship.
8

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

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CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant
sustained a neck injury in the performance of duty on November 15, 2008.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: February 14, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES MEDICAL CENTER,
Brecksville, OH, Employer
__________________________________________

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

Docket No. 10-1209
Issued: April 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 29, 2010 appellant filed a timely appeal from the September 29, 2009 merit
decision of the Office of Workers’ Compensation Programs, which reduced compensation for
wage loss beginning January 26, 2009. Pursuant to the Federal Employees’ Compensation Act1
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 the Office properly reduced appellant’s compensation for wage loss
beginning January 26, 2009.
FACTUAL HISTORY
On August 4, 2008 appellant, a 46-year-old sleep lab technician, sustained a traumatic
injury in the performance of duty while trying to transfer a patient from a bed to a wheelchair.
1

5 U.S.C. § 8101 et seq.

She stopped work that day. The Office accepted her claim for sprains of the neck, lumbar back,
right shoulder and upper arm, right leg and knee, left hand (metacarpophalangeal), and for left
third trigger finger. Appellant received continuation of pay through September 18, 2008 and
compensation for temporary total disability thereafter on the daily rolls.
Appellant saw her orthopedic surgeon, Dr. Bruce T. Cohn, on January 21, 2009. Her left
hand had improved but her back and neck were still painful. She felt she could go back to work
with restrictions. Dr. Cohn examined her and released her to limited duty four hours a day, three
days a week.
The employer offered a sedentary assignment within Dr. Cohn’s restrictions at the same
grade and step as her date-of-injury position. Appellant’s tour was to begin at 8:00 p.m. on
January 26, 2009. She went to the health unit at 1:21 p.m. that day and told the internist who
saw her that she wished to return to work, but she felt incapable of doing so at that time because
of pain. Appellant filed a Form CA-7 to claim compensation for temporary total disability.
Appellant saw Dr. Cohn on January 30, 2009. She advised that she was in a great deal of
pain and was essentially no different than she was on the last examination. Appellant was
adamant that she could not return to work “because the work simply served to aggravate her
condition.” Based on this, Dr. Cohn deferred her orthopedic examination. “[Appellant] seems to
be getting somewhat aggravated.”
Dr. Cohn saw appellant again on February 23, 2009. He examined her, diagnosed
cervical and lumbar spine strain/sprain/spasm, and kept her off work for another month.
In a decision dated March 18, 2009, the Office found that appellant had not met her
burden of proof to establish that she was partially disabled (12 hours a week) beginning
January 26, 2009 as a result of her August 4, 2008 employment injury. It reduced her
compensation for wage loss from 40 hours per week to 28 hours beginning January 26, 2009.
Dr. Manhal A. Ghanma, an orthopedic surgeon and Office referral physician, examined
appellant, reviewed her history and medical record, and concluded that she no longer had
findings or residuals consistent with the August 4, 2008 incident at work or the accepted medical
conditions. He felt that her presentation was more consistent with abnormal illness behavior and
symptom magnification than with any work injury. Dr. Ghanma found that appellant had no
disability related to the accepted injury.
Dr. Cohn disagreed with Dr. Ghanma. He found that appellant continued to demonstrate
findings consistent with cervical and lumbar strain. Dr. Cohn found that appellant was currently
unable to work.
The Office found a conflict between Dr. Ghanma and Dr. Cohn and referred appellant,
together with the medical record and a statement of accepted facts, to Dr. James H. Rutherford, a
Board-certified orthopedic surgeon, for an impartial medical evaluation. Dr. Rutherford
reviewed appellant’s history and medical record and described his findings on physical
examination. He found that appellant still had residual symptoms and clinical findings related to
the accepted cervical and lumbar sprain/strains and the left third finger sprain/strain with
evidence of trigger finger. Dr. Rutherford found that she no longer had residual symptoms
2

related to the right knee sprain/strain or right shoulder sprain/strain. He concluded that residuals
of the August 4, 2008 employment injury prevented appellant from performing her date-of-injury
duties as a sleep lab technician without limitation. Dr. Rutherford found, however, that she was
capable of full-time sedentary activities, occasionally lifting 15 pounds and occasionally standing
and walking.
In a decision dated September 29, 2009, an Office hearing representative affirmed the
denial of compensation for total disability. The hearing representative found that the medical
evidence failed to demonstrate total disability beginning January 26, 2009.
On appeal, appellant found it very difficult to understand how she was supposed to have
been fully recovered and forced to rush back to work without being adequately treated. She
emphasized that there was not enough time following her injury to receive therapy, see various
doctors, and schedule and wait for appointments “for me to go from totally disabled to able to
work as an asset to the job and not a liability!” Appellant notes that the medical evidence stated
she was unable to return to regular duties. She submitted a substantial number of documents
with highlights and comments.2
LEGAL PRECEDENT
Under the Act the United States shall pay compensation for the disability of an employee
resulting from personal injury sustained while in the performance of duty.3 Once the Office
accepts a claim, it has the burden of proof to justify termination or modification of compensation
benefits.4 After it has determined that an employee has disability causally related to her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.5 Generally, the Office can meet this
burden by showing that the employee returned to work, even if that work is light duty rather than
the date-of-injury position, if thereafter the employee earns no less than he had before the
employment injury.6 A short-lived and unsuccessful attempt to return to duty, however, does not
automatically discharge the Office’s burden to justify termination of compensation.7
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

2

The Board has no jurisdiction to review documents that were not in the case record at the time the Office issued
its September 29, 2009 decision. 20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. § 8102(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
6

Billy Sinor, 35 ECAB 419 (1983).

7

Janice F. Migut, 50 ECAB 166 (1998) (where the employee returned to work for two days, the burden remained
on the Office to justify terminating her benefits).

3

make an examination.8 When 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 specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.9
ANALYSIS
The Office accepted appellant’s claim and paid compensation for temporary total
disability on the daily rolls from September 19, 2008 through January 25, 2009. When
prolonged disability is expected (over 90 days) compensation for wage loss should be paid on the
periodic rolls.10 If the Office abuses its discretion by retaining an employee on the daily rolls in
the face of prolonged disability, it has the burden of proof to justify any termination or
modification of compensation.11
The Office reduced appellant’s compensation for wage loss effective January 26, 2009,
after she had been disabled for nearly half a year. The Board therefore finds that the Office
carried the burden of proof to justify the reduction.
The attending orthopedic surgeon, Dr. Cohn, released appellant to limited duty on
January 21, 2009. He found, in effect, that she was no longer totally disabled for work. Indeed,
appellant advised that she felt she could go back to work with restrictions. The employing
establishment accommodated her with a modified assignment that complied with her work
tolerances, one that would have resulted in no wage loss. When appellant decided that she hurt
too much to return to work, she filed a claim for compensation for total disability beginning
January 26, 2009. None of these circumstances shifted the burden of proof to appellant to
reestablish her entitlement to compensation for total disability.
In Fred Reese,12 the attending physician released the employee to return to work “under
current restrictions.” The employee returned to a modified position tailored to his restrictions
but stopped work at the end of the day. He filed both a Form CA-7 claim for compensation and
a Form CA-2a recurrence of disability claim. The Office placed the burden of proof on the
employee to show that he was totally disabled from his light duty. The Board found, however,
that the employee’s short-lived return to work did not shift the burden of proof when the medical
evidence did not establish that he could continue to perform light duty. All the medical evidence
8

5 U.S.C. § 8123(a).

9

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.812.4
(March 2010); see id., Disability Management, Chapter 2.600.5.b (September 2010) (when the medical evidence
indicates that the disability is expected to continue for more than 60 to 90 days, compensation should usually be paid
on the periodic rolls).
11

E.B., Docket Nos. 09-1509, 09-1682 (issued May 4, 2010) (the Office retained the employee on the daily rolls for
over a year).
12

56 ECAB 568 (2005).

4

indicated that he was either partially or totally disabled after the attempted return to work. There
was no probative medical evidence that the employment-related condition had ceased or that the
employee’s inability to perform light duty was unrelated to the employment injury.13
Unlike the employee in Reese, appellant did not return to work, not even for a day.14 She
visited the employing establishment’s health unit before her shift was to begin on January 26,
2009 and advised that she felt incapable of returning to work at that time because of pain. So she
did not have even a short-lived return to work. Dr. Cohn kept her off work thereafter.
A conflict arose between Dr. Cohn and Dr. Ghanma, an orthopedic surgeon and Office
referral physician, who found appellant had no disability related to the accepted injury. When
such a conflict arises, the Act requires the Office to refer the claimant to an impartial medical
specialist, or referee, to resolve the matter. The Office referred appellant to Dr. Rutherford, a
Board-certified orthopedic surgeon, to resolve the conflict.
Dr. Rutherford concluded that appellant could not return to her date-of-injury position as
a sleep lab technician due to injury-related residuals but that she could return to light duty. The
light duty he described -- sedentary activities, occasionally lifting up to 15 pounds, occasional
standing and walking -- was consistent with the modified assignment the employer made
available on January 26, 2009. He was never asked to review the particular position description
to determine its suitability.
This did not discharge the Office’s burden of proof. Dr. Rutherford did not address the
relevant issue, namely, whether appellant was able to return to the specific position made
available to her on January 26, 2009.15 His opinion, about six months after the fact, addressed
only her current ability. The record does not make clear whether light duty within her
restrictions was still available at that time. More to the point, the Office did not reduce
appellant’s compensation for wage loss as of the date of Dr. Rutherford’s opinion. It reduced
compensation effective January 26, 2009 and found, in the negative, that Dr. Rutherford’s
opinion failed to demonstrate total disability beginning January 26, 2009. The burden is on the
Office to positively demonstrate by the weight of the evidence that appellant was only partially

13

See George J. Hoffman, 41 ECAB 135 (1989) (where the attending physician released the employee to return to
work by a certain date, the Board found that the Office carried the burden of proof and should have further developed
the evidence by asking why the attending physician initially believed the employee could return to work and why he
subsequently changed his mind).
14

See Carl C. Graci, 50 ECAB 557 (1999) (where the employee returned to light duty for two hours and then filed a
recurrence claim, the Board found that the Office improperly shifted the burden to the employee to establish total
disability).
15

Id. (where the impartial medical specialist concluded on July 16, 1997 that the employee could not return to the
date-of-injury position but “is able to return to work in a sedentary position,” the Board held that he did not resolve
whether the employee was able to work the offered light duty as of May 9, 1997); see Terry R. Hedman, 38 ECAB 222
(1986) (when an employee, who is disabled from the job she held when injured on account of employment-related
residuals, returns to a light-duty position or the medical evidence of record establishes that she can perform the lightduty position, the employee has the burden to establish a recurrence of total disability and show that she cannot perform
such light duty).

5

disabled for work on January 26, 2009 and was able to perform the modified assignment made
available to her at that time, thereby justifying the reduction of compensation for wage loss.
The Office’s burden of proof requires rationalized medical opinion evidence based on a
proper factual and medical background.16 As the impartial medical specialist did not resolve
whether appellant was able to return to the light duty available on January 26, 2009, the Board
finds that the Office did not meet its burden of proof to reduce her compensation for wage loss at
that time. The Board will therefore reverse the Office’s September 29, 2009 decision.
To address appellant’s contentions on appeal, the Board notes that although certain
physicians, including Dr. Ghanma, felt that she had fully recovered from her August 8, 2008
employment injury, the Office did not deny compensation for total disability based on those
medical opinions. Instead, because Dr. Ghanma’s opinion created a conflict with Dr. Cohn’s, the
statute required the Office to ask an impartial medical specialist to resolve the dispute. No one
was rushing her back to work, certainly not to her date-of-injury position or to work outside her
established physical tolerances, and certainly not without adequate treatment for established
residuals of the accepted injury. Appellant herself reported on January 21, 2009 that she felt she
could go back to work with restrictions. Dr. Cohn released her with significant restrictions.
When appellant then refused, that became the issue in her case: not whether she could return to
her date-of-injury position as a sleep lab technician, but whether she was able to return to the
modified assignment on January 26, 2009. Dr. Rutherford did not address that particular issue,
so the Office did not meet its burden of proof to reduce her compensation for wage loss.
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation for wage
loss beginning January 26, 2009. The weight of the medical evidence did not establish that she
could return to light duty at that time.

16

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 13, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, DELTONA PINES
POST OFFICE, Deltona, FL, Employer
__________________________________________

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

Docket No. 19-0765
Issued: August 20, 2019

Case Submitted on the Record

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

JURISDICTION
On February 25, 2019 appellant filed a timely appeal from a February 14, 2019 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 met his burden of proof to establish an injury in the
performance of duty on September 19, 2018, as alleged.
FACTUAL HISTORY
On September 20, 2018 appellant, then a 41-year-old program manager, filed a traumatic
injury claim (Form CA-1) alleging that at 6:30 p.m. on September 19, 2018 he sustained anterior
cruciate ligament (ACL) and medial and lateral meniscus tears and additional injuries to his right
1

5 U.S.C. § 8101 et seq.

knee while in the performance of duty. He indicated that he injured himself while playing
volleyball with a group of employees at the employing establishment’s National Center for
Employee Development (NCED) in Norman, Oklahoma. During the third game, appellant’s foot
was planted in the sand and when he turned to hit the ball, he heard a loud pop in his right knee.
He could not put any weight on his leg and had to be carried by his coworkers, R.W., T.W., and
T.H.
On the reverse side of the claim form A.D., appellant’s supervisor, checked a box marked
“No” indicating that appellant was not injured in the performance of duty as he was on Norman
training facility property after work hours when his injury occurred and the activity was not a
required event. The employing establishment noted that his injury did not occur on a day of travel
to and from the facility. It further noted that appellant’s regular work hours were from 8:00 a.m.
to 5:00 p.m., Monday through Friday. The employing establishment noted that he stopped work
on September 21, 2018.
OWCP subsequently received a right knee magnetic resonance imaging (MRI) scan dated
September 24, 2018 by Dr. Kevin W. McClean, a Board-certified diagnostic radiologist, who
diagnosed ACL tear/disruption, mild medial collateral ligament sprain, ill-defined tear of the
posterior horn of the medial meniscus, fraying and tearing of the free edge of the body of the lateral
meniscus with additional fraying of the posterior horn, bony contusion within the posterior
periphery of the medial and lateral tibial plateaus, and focal near full-thickness to full-thickness
cartilage defect within the inferomedial aspect of the lateral patellar facet.
In a development letter dated October 10, 2018, OWCP informed appellant of the factual
and medical deficiencies of his claim. It provided a questionnaire for his completion regarding the
circumstances of his claimed September 19, 2018 injury, including whether he was on employing
establishment premises at the time and whether he was performing his regularly assigned duties.
OWCP also requested that appellant provide a narrative medical report from his physician, which
contained a detailed description of findings and diagnoses, explaining how the reported work
incident caused or aggravated his medical condition. In a separate development letter of even date,
it requested that the employing establishment answer several questions, including whether, at the
time of the claimed employment injury, appellant was on premises which were owned, operated,
or controlled by the employing establishment, and whether he was performing official duties or
engaged in activities reasonably incidental to his job. OWCP afforded both parties 30 days to
respond.
On October 18, 2018 appellant responded to OWCP’s development questionnaire. He
noted that at the time of injury he was on official travel status from Sunday, September 16 through
Thursday, September 20, 2018. Appellant was one of seven trainers who were providing training
for a national business mall entry meeting at NCED. He again contended that his claimed injury
occurred on the employing establishment premises. Appellant related that the only time he was
off the premises was when he received treatment for his injury. He contended that employing
establishment employees on official travel status requiring an overnight stay were considered to
be in compensable work hour status the entire time on such status. Appellant related that “I was
not required to participate in the activity.” He was invited to play by his coworkers and his
supervisor, A.D. Appellant claimed that the employing establishment derived benefits from his
participation in the volleyball game, which included exercise for business mailer support group

2

members who had long days of providing training, bonding, and teambuilding. He indicated that
this seemed like a healthy way to unwind after very long and stressful days. Appellant noted that
no other employees were required to participate in the activity. He maintained that the employing
establishment provided the NCED training facility for the activity, volleyball, and court. Appellant
did not believe that his participation in the activity was unauthorized or inappropriate.
Appellant submitted additional medical evidence, which addressed his right knee
conditions and medical treatment. He also submitted a portion of the Injury Compensation for
Federal Employees Publication CA-810 regarding coverage of an injury in various circumstances
under FECA.
In a statement dated October 10, 2018 and received on November 14, 2018, the employing
establishment responded to OWCP’s development letter. It responded “Yes” when asked, whether
at the time of injury, appellant was on premises it owned, operated, and controlled, and provided
a picture of the premises. The employing establishment noted that he was providing training for
the week at its Norman training facility, which had a hotel. It contended that appellant opted into
a voluntary volleyball game with others. The employing establishment responded “No” when
asked, whether at the time of injury, he was engaged in official duties which required him to be
off the premises at the time of injury. It also responded “No” when asked, whether appellant was
performing assigned duties or any activity which, by nature, was considered reasonably incidental
to his assignment.
By decision dated November 16, 2018, OWCP denied appellant’s claim, finding that he
was not in the performance of duty when injured on September 19, 2018. It found that, although
he was in official travel status, his participation in the volleyball game on the employing
establishment’s premises was not mandatory, and he was not performing duties incidental to his
employment or from which his employing establishment derived a substantial benefit.
In letters and an appeal request form received by OWCP on December 4 and 6, 2018,
appellant requested reconsideration. He again referenced the Injury Compensation for Federal
Employees Publication CA-810 and reiterated that he was injured in the performance of duty as
his injury occurred on employing establishment premises while he was on travel status.
OWCP, by decision dated February 14, 2019, denied modification of its prior decision. It
noted that, according to the employing establishment, while appellant’s injury occurred on its
premises, his participation in the volleyball game was not related to not an official duty reasonably
incidental to his assignment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged,
2
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”5 The phrase “in the course of employment” is recognized
as relating to the work situation, and more particularly, relating to elements of time, place, and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be stated to be engaged in the master’s business, at a place where the
employee may reasonably be expected to be in connection with the employment, and while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.6 This alone is insufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury.7
The Board has held that, where an employee is on travel status or a temporary duty
assignment, he or she is covered by FECA 24 hours a day with respect to any injury that results
from activities essential or incidental to his or her temporary assignment.8
With regard to recreational or social activities, the Board has held such activities arise in
the course of employment when: (1) they occur on the premises during a lunch or recreational
period as a regular incident of the employment; (2) the employing establishment, by expressly or
impliedly requiring participation or by making the activity part of the service of the employee,
brings the activity within the orbit of employment; or (3) the employing establishment derives
substantial direct benefit from the activity beyond the intangible value of improvement in
employee health and morale is common to all kinds of recreation and social life.9

3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

See M.T., Docket No. 17-1695 (issued May 15, 2018); S.F., Docket No. 09-2172 (issued August 23, 2010);
Charles Crawford, 40 ECAB 474, 476-77 (1989).
6

See M.T., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

7

See M.T., id.; Eugene G. Chin, 39 ECAB 598, 602 (1988).

8

D.R., Docket No. 16-1395 (issued February 2, 2017); T.C., Docket No. 16-1070 (issued January 24, 2017).

9

P.R., Docket No. 17-1038 (issued September 22, 2017); S.B., Docket No. 11-1637 (issued April 12, 2012);
Ricky A. Paylor, 57 ECAB 568 (2006); Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright, 44 ECAB
176 (1992); see also A. Larson, The Law of Workers’ Compensation § 22.00 (2015).

4

The mere fact that a claimant was on the premises at the time of injury is not sufficient to
establish entitlement to compensation benefits. It must also be established that the claimant was
engaged in activities which may be described as incidental to the employment, i.e., that he or she
was engaged in activities which fulfilled her employment duties or responsibilities thereto.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on September 19, 2018, as alleged.
Although appellant was on the employing establishment premises when he injured his right
knee on September 19, 2018 while playing volleyball, the injury did not occur during lunch or
recreational period as a regular incident of his employment, but after his duty hours had ended.11
Appellant, by his own admission, voluntarily played a game of volleyball after he completed his
work duties. The employing establishment related that the volleyball game was not a part of
appellant’s work or tasks incidental to his assignment while on temporary travel duty status.12
Thus, the Board finds that the evidence of record is insufficient to establish that appellant was
injured during a lunch or recreational period as a regular incident of his employment.13
The Board further finds that appellant has not established an express or implied
requirement to participate in the volleyball game. Appellant acknowledged his participation in the
volleyball game was not required by the employment establishment. He indicated that his
participation was in response to an invitation by a group of fellow employees asking him to play.
Thus, the record establishes that participation in the activity was purely voluntary on the part of
appellant and that the employing establishment did not make the activity a part of his temporary
duty assignment.14
Appellant contended that the employing establishment derived a substantial direct benefit
from his participation in the volleyball game as it provided exercise and a teambuilding activity
for himself and his group members. While the employing establishment provided equipment and
facilities, the only benefit derived from this activity was by appellant and his team for their
improved health and morale while away from home.15 Thus, the Board finds the evidence of
record does not establish that the employing establishment derived a direct benefit from appellant’s
participation in a volleyball game beyond the intangible value of improvement in health and
10

P.R., id.; M.C., Docket No. 16-0824 (issued September 1, 2016); A.K., Docket No. 09-2032 (issued August 3,
2010); Ricky A. Paylor, id.
11

See Lawrence J. Kolodzi, supra note 9.

12
See Lawrence J. Kolodzi, supra note 9 (finding that the employee deviated from his temporary-duty assignment
for personal and recreational purposes when he was injured at a health club playing racquetball after his workday had
ended).
13

See S.B., Docket No. 10-0842 (issued December 9, 2010).

14

Id.

15

Id.; H.S., 58 ECAB 554 (issued June 14, 2007).

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morale that is common to all kinds of recreation and social life. The intangible value of improved
health or morale, in and of itself, does not bring a recreational activity within the orbit of
employment.16
For these reasons, the Board finds that appellant has not met his burden of proof to establish
an injury on September 19, 2018 in the performance of duty, as alleged.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on September 19, 2018, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2019
Washington, DC

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

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

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

16
J.M., Docket No. 16-1418 (issued September 20, 2017); J.S., Docket No. 15-0510 (issued June 20, 2015); S.B.,
supra note 9; Ricky A. Paylor, supra note 9; Lawrence J. Kolodzi, supra note 9; see also Larson, supra note 9.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Birmingham, AL, Employer
__________________________________________
Appearances:
Lauren Shine, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1864
Issued: August 12, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 3, 2019 appellant, through counsel, filed a timely appeal from a July 24,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk
of the Appellate Boards assigned Docket No. 19-1864.

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

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 7,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1864 (issued
August 7, 2020).

This case has previously been on appeal before the Board.3 The relevant facts are set forth
below.
On February 3, 2014 appellant, then a 46-year-old food service worker, ﬁled a traumatic
injury claim (Form CA-1) alleging that she injured her right knee and lower back on January 24,
2014 when her left foot got caught on a drawer of her desk as she turned in her chair to get up
causing her to fall while in the performance of duty. On April 29, 2014 OWCP accepted the claim
for contusion of the right knee and sprain of the back, lumbar region.
In a letter dated January 8, 2015, the employing establishment noted that appellant was to
resume regular-duty work as of January 12, 2015, as there was no medical evidence providing
work restrictions.
On January 23, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical beneﬁts as the weight of the medical evidence established that she no longer had
residuals or disability due to the accepted January 24, 2014 employment injury.
By decision dated March 13, 2015, OWCP terminated appellant’s wage-loss compensation
and medical beneﬁts, effective that date.
On March 30, 2015 appellant requested a telephonic hearing, which was held before an
OWCP hearing representative on November 18, 2015.
By decision dated January 28, 2016, OWCP’s hearing representative affirmed the
March 13, 2015 decision.
On February 16, 2017 appellant, through counsel, requested reconsideration.
By decision dated February 27, 2017, OWCP denied appellant’s request for
reconsideration ﬁnding that it was untimely filed and failed to demonstrate clear evidence of error.
On August 24, 2017 appellant, through counsel, filed a timely appeal before the Board. By
decision dated December 19, 2018, the Board found that OWCP properly denied appellant’s
request for reconsideration of the merits of her claim finding that it was untimely filed and failed
to demonstrate clear evidence of error.4
On June 28, 2019 appellant, through counsel, requested reconsideration. Counsel argued
that appellant filed a timely reconsideration request, noting that a receipt reflected that the request
was received on February 2, 2017 and the recorded document was received on February 16, 2017.
Counsel noted that the certified mail receipt reflected that a package was delivered. Counsel
further argued that the package included medical evidence from Dr. Kathleen Warner, an internist,
which was not considered and that this was clear error. Counsel noted that the additional medical
evidence challenged the findings of Dr. Todd Smith, Board-certified orthopedic surgeon, and that

3

Docket No. 17-1835 (issued December 19, 2018).

4

Id.

2

OWCP’s failure to consider the medical evidence from Dr. Warner was clear evidence of error in
the issuance of the January 28, 2016 decision.
By decision dated July 24, 2019, OWCP denied appellant’s June 21, 2019 request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a). It found that her
reconsideration request neither raised substantive legal questions nor included new and relevant
evidence.
The Board notes that the most recent decision reviewing the merits of appellant’s case was
OWCP’s January 28, 2016 decision. Appellant had one calendar year from the date of that
decision, until January 27, 2017, to ensure receipt by OWCP of a reconsideration request.5 OWCP
received her reconsideration request on June 28, 2019. As the received date was more than one
year after the January 28, 2016 OWCP decision, the Board finds that appellant’s request must be
considered untimely.
The proper standard of review for an untimely reconsideration request is the clear evidence
of error standard.6 In denying appellant’s reconsideration request in its July 24, 2019 nonmerit
decision OWCP applied the incorrect standard of review. Therefore, the Board will set aside
OWCP’s July 24, 2019 decision and remand the case for proper review under the clear evidence
of error standard.7

5

The Board notes that although counsel asserts that OWCP received the reconsideration request on February 2,
2017 that received date would still be considered untimely.
6
See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
7

Due to the appearance that appellant’s reconsideration request and/or supportive documentation was received into
an incorrect file number, upon return of the case file OWCP shall properly assemble and reconstruct the case files to
ensure that documents submitted in relation to the present file are contained in the proper claim file prior to issuance
of a new decision. OWCP shall also consider whether his claim files should be administratively combined.

3

IT IS HEREBY ORDERED THAT the July 24, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: August 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-125
Issued: June 18, 2012

Case Submitted on the Record

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

JURISDICTION
On November 2, 2011 appellant filed an appeal from a July 1, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation on the grounds
that the selected position of billings clerk represented her wage-earning capacity.
FACTUAL HISTORY
On July 14, 1999 appellant, then a 40-year-old letter carrier, injured her neck when
putting mail in a mailbox. She turned her neck and heard it pop. OWCP accepted appellant’s
claim for cervical sprain, degeneration of cervical intervertebral disc, and anxiety and paid
1

5 U.S.C. § 8101 et seq.

appropriate benefits. Appellant stopped work on September 29, 1999 and returned to limitedduty work on October 5, 1999. She was a term employee when hired and her term expired on
December 30, 1999.
Appellant did not return to work after her term expired on
December 30, 1999. She was eventually placed on the periodic compensation rolls.
In an April 24, 2008 report, Dr. Donald Mauldin, a Board-certified orthopedic surgeon
and second opinion physician, reviewed appellant’s medical records together with an updated
statement of accepted facts and presented findings on examination. He listed an impression of
status post cervical strain with chronic subjective cervical radicular-type symptomatology.
Dr. Mauldin found that appellant could work an eight-hour day doing lighter type of work
activities within permanent restrictions.
Dr. Samuel J. Alianell, a Board-certified physiatrist and appellant’s attending physician,
found that appellant’s work-related conditions were active and she could not work. Glenn J.
Bricken, Ph.D., appellant’s clinical psychologist, advised that she had chronic pain and
depression secondary to her pain and financial stress.
OWCP found a conflict in medical opinion between Dr. Alianell and Dr. Mauldin as to
appellant’s work capabilities and restrictions. Appellant was referred to Dr. John DeBender, a
Board-certified orthopedic surgeon, for an impartial medical evaluation. In a November 12,
2008 report, Dr. DeBender provided examination findings and an impression of cervical strain
superimposed on degenerative changes. He stated that there was no evidence on examination
that appellant had any continuing objective changes that could be related to her July 14, 1999
work-related injury. Dr. DeBender indicated that appellant appeared to have had a cervical strain
that may have aggravated underlying degenerative disc disease but found no indication of any
nerve root irritation or radiculopathy present clinically and noted that the recent electromyogram
by appellant’s treating physician was normal in June of this year. He opined appellant could
return to work eight hours a day with restrictions. In the attached work capacity evaluation,
Dr. DeBender noted appellant was permanently restricted from: pushing, pulling and lifting
greater than 20 pounds for one to two hours and no squatting, kneeling or climbing, reaching
above the shoulder or bending/stooping. Appellant was also restricted to operating a motor
vehicle no more than two hours at work.
In a December 10, 2008 letter, OWCP requested Dr. Bricken to provide an opinion on
whether appellant’s anxiety condition related to the cervical strain had resolved in light of
Dr. DeBender’s opinion. If appellant’s anxiety condition related to the cervical sprain had not
resolved, then Dr. Bricken was to render an opinion on whether appellant could return to work.
In a February 17, 2009 report, Dr. Bricken stated that appellant’s anxiety state was
directly related to the cervical sprain, but it was not totally disabling and she could return to
restricted work duty. He opined that she was psychologically restricted from working in close
proximity to small crowds and from working at night. In progress reports, Dr. Bricken advised
that appellant suffered chronic pain and depression and anxiety secondary to pain but that she
was able to return to work.
On July 6, 2009 appellant was referred to vocational rehabilitation services as the
employing establishment was unable to provide employment. OWCP noted that the weight of

2

the evidence with regard to appellant’s work restrictions rested with Dr. DeBender and
Dr. Bracken.
On August 31, 2009 the vocational rehabilitation counselor performed a preliminary
labor market survey report indicating that in conjunction with the August 18, 2009 transferable
skills analysis report and other factors, appellant was vocationally and medically suited for the
position of billing clerk with some type of refresher course in computers or billing.
On October 20, 2009 the vocational rehabilitation counselor identified the positions of
receptionist Department of Labor’s Dictionary of Occupational Titles (DOT) #237.367.038 and
billing clerk (DOT #214.382.014) as being vocationally appropriate as they required four to six
months specific vocational preparation and appellant had 10 years experience; both jobs fell
within the light-duty category that appellant’s work restrictions suggested and both jobs were
performed in sufficient numbers so to make it reasonably available in appellant’s commuting
area. Target jobs required vocational training in the area of computer skills and/or medical
billing. The job classification form (CA-66) for the identified position of billing clerk (DOT
#214.382-014) describes the position as: complies date and types invoices and bills: Reads
computer files or gathers records, such as purchase orders, sales tickets, and charge slips, to
compile needed data. Enters information into computer or computes amounts due, using
calculator. Types invoices, listing items sold, amounts due, credit terms, and dates of shipment,
using typewriter or computer. It was described as a sedentary position which involved lifting no
more than 10 pounds at a time. Weekly wage was listed as $8.00 to $20.00 per hour or $320.00
to $800.00 per week.
On December 11, 2009 OWCP approved an eight-week medical billing and coding
certification training plan to enhance appellant’s wage-earning capacity and employability. On
December 15, 2009 it advised her that the prevocational training plan was approved and within
her limitations.
On October 19, 2010 OWCP noted that appellant attended and successfully completed
the medical billing training program.
In an October 19, 2010 letter to appellant, OWCP indicated that appellant would receive
90 days of job placement assistance. Appellant was also informed that, at the end of the 90-day
period, FECA required that her compensation be reduced based on the wage-earning capacity of
the selected position, even if she was not employed at that time. On November 15, 2010
appellant signed a job search plan indicating that she would pursue employment in the identified
positions of billing clerk and hospital insurance clerk/coder.
On December 17, 2010 OWCP denied appellant’s request for additional formal
vocational training.
Appellant did not obtain any employment despite an extension of placement services.
Vocational rehabilitation services were closed March 11, 2011.
By letter dated May 20, 2011, OWCP advised appellant of a proposed reduction in
compensation on the grounds that she had the capacity to earn wages of $320.00 per week as a
billings clerk. It stated that the weight of the medical evidence was represented by Dr. Mauldin.
3

On May 26, 2011 the rehabilitation counselor submitted an updated Form CA-66 for the
selected position of billing clerk. This reflected a weekly wage of $424.80 and that the job was
being performed in sufficient numbers in appellant’s commuting area.
In a June 13, 2011 letter, appellant disagreed with the proposal to reduce her
compensation due to the age of the medical evidence. She also noted that she had not worked in
10 years and potential employers were seeking people with at least one year experience in the
medical billing and coding field. Appellant argued that certification in that area would make her
more marketable and advised that a reduction in her compensation would cause additional
mental stress.
In reports dated March 22 and May 10, 2011, Dr. Bricken opined that appellant had
chronic pain, depression and anxiety secondary to pain, functional limitations and difficulty
finding and applying for jobs. He also opined that there has been no change in appellant’s
condition and that she could return to work as soon as possible.
By decision dated July 1, 2011, OWCP reduced appellant’s compensation effective
July 3, 2011 on the grounds that she had the capacity to perform the duties of billing clerk. It
found the evidence appellant provided was not sufficient to alter the recommendation to reduce
her benefits.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.2
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
if the employee has no actual earnings, her wage-earning capacity is determined with due regard
to the nature of her injury, her degree of physical impairment, her usual employment, her age,
her 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.3
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
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

2

Carla Letcher, 46 ECAB 452 (1995).

3

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

4

with the state employment service or other applicable service.4 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.5
OWCP 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 OWCP relies must provide a detailed
description of her condition.6 Additionally, the Board has held that a wage-earning capacity
determination must be based on a reasonably current medical evaluation.7
ANALYSIS
The July 1, 2011 wage-earning capacity determination was premised on appellant’s
ability to work full time as a billing clerk. The Board finds that OWCP failed to establish that
the constructed billing clerk position reasonably represents her wage-earning capacity.
OWCP’s July 1, 2011 determination that the constructed position of billing clerk was
medically suitable was based on the April 12, 2008 report of Dr. Mauldin, a second opinion
examiner. OWCP’s reliance on Dr. Mauldin’s report was in error. Dr. Mauldin was on one side
of a conflict, regarding appellant’s work capabilities and restrictions that Dr. DeBender was
selected to resolve.8 OWCP did not explain why it did not rely on Dr. DeBender’s opinion to
resolve the conflict about appellant’s work restrictions due to her orthopedic conditions.9 The
Board has held that, to properly resolve a medical conflict, it is the impartial medical specialist
who should provide a reasoned opinion that resolves the medical conflict.10 The Board will
reverse the July 1, 2011 decision.

4

See Dennis D. Owen, 44 ECAB 475 (1993).

5

5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

6

See William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo, 28
ECAB 43 (1976).
7

See M.A., 59 ECAB 624 (2008). See Carl C. Green, Jr., 47 ECAB 737, 746 (1996) (six-month-old medical
reports are reasonably current for purposes of wage-earning capacity determination); Cf. Keith Hanselman, 42
ECAB 680 (1991) (two-year-old medical report and year-old work restriction evaluation forms were not reasonably
current for wage-earning capacity determination); Anthony Pestana, 39 ECAB 980 (1988) (three-year-old medical
evaluation is not reasonably current for wage-earning capacity determination).
8

See 5 U.S.C. § 8123(a) (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).
9

OWCP also sought an opinion from Dr. Bricken, appellant’s attending clinical psychologist, regarding
appellant’s ability to work based on her accepted anxiety condition. OWCP’s May 20, 2011 proposed reduction and
it’s July 1, 2011 wage-earning capacity decision do not indicate that it considered medical evidence regarding the
anxiety condition in finding that appellant could perform the duties of the selected position.
10

See Richard R. LeMay, 56 ECAB 341 (2005).

5

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation on the grounds that she had the capacity to earn wages in the selected position of
billing clerk because it relied on outdated medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the July 1, 2011 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: June 18, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6