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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0899
Issued: August 7, 2015

Case Submitted on the Record

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

JURISDICTION
On March 18, 2015 appellant, through counsel, filed a timely appeal from a December 5,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
seven percent permanent impairment of his right leg, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on April 20, 2010 appellant, then a 44-year-old letter carrier,
sustained partial rupture of his right Achilles tendon, right tarsal tunnel syndrome, and temporary
contraction of his right tendon sheath due to stepping down from a truck at work.
1

5 U.S.C. §§ 8101-8193.

In a May 10, 2010 report by Dr. Richard Chesnick, his interpretation of the magnetic
resonance imaging (MRI) scan of appellant’s right ankle showed small interstitial partial
thickness tear of the distal Achilles tendon, and retrocalcaneal bursitis with a Haglund’s
deformity of the calcaneus. MRI scan testing of his right ankle on September 29, 2010
demonstrated focal tenosynovitis of the flexor halluces longus tendon just below the level of the
subtalar joint, and focal collection contiguous with the flexor halluces longus tendon sheaths
extending to the adjacent soft tissues close to the tibial neurovascular bundle (possibly associated
with tarsal tunnel syndrome). The findings also showed distal Achilles tendinopathy, mild
partial intrasubstance tear at the Achilles insertion, and partial tearing of the deep fibers of the
deltoid ligament with remote appearing evulsion fragment in the region.
On November 2, 2010 Dr. William Newcomb, an attending Board-certified orthopedic
surgeon, performed a right foot tenolysis of the flexor halluces longus tendon and right ankle
release of the tarsal tunnel. The procedure was authorized by OWCP.
In a January 13, 2012 report, Dr. Arthur F. Becan, an attending Board-certified
orthopedic surgeon, determined that appellant sustained 15 percent permanent impairment of his
right leg under the standards of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). He indicated that
physical examination of appellant’s right foot and ankle revealed tenderness of the medial
malleolus, subtalar joint, posterior tibial tendon, distal Achilles tendon, and retrocalcaneal bursae
right tarsal tunnel. Dr. Becan explained how he calculated appellant’s right leg impairment
under the A.M.A., Guides. He stated that, using Table 16-2 (Foot and Ankle Regional Grid) on
page 501, the diagnosed-based impairment of partial Achilles tendon rupture fell under class 1
with a default value (mild motion deficit) of five percent impairment. Dr. Becan determined
that, per Table 16-6 on page 516, the functional history modifier fell under grade modifier 1
(mild problem); per Table 16-7 on page 517, the physical examination modifier was grade
modifier 2 (moderate problem); per Table 16-8 on page 519, the clinical studies modifier fell
under grade modifier 1 (mild problem). Applying the net adjustment formula to the grade
modifiers, he adjusted the default five percent impairment to six percent impairment. Dr. Becan
noted that appellant had severe sensory deficits of the right tibial nerve and therefore his
condition, under Table 16-12 (Peripheral Nerve Impairment -- Lower Extremity Impairments) on
page 536, fell under class 1 with a default value of 10 percent. He indicated that appellant’s
functional history modifier, physical examination modifier, and clinical studies modifiers all fell
under grade modifier 1 and, therefore, after application of the net adjustment formula, there was
no adjustment from the default value of 10 percent. Thus, appellant had 10 percent impairment
due to his tibial nerve condition. Using the Combined Values Chart on page 604, the six percent
impairment combined with the 10 percent impairment equaled a total right leg impairment of 15
percent.
On April 13, 2012 appellant claimed a schedule award.
In a July 10, 2012 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, found that appellant sustained a seven percent permanent
impairment of his right leg under the standards of the sixth edition of the A.M.A., Guides. He
stated that, using Table 16-2 (Foot and Ankle Regional Grid) on page 501, the diagnosed-based
impairment of partial Achilles rupture fell under class 1 with a default value (mild motion

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deficit) of five percent impairment. Dr. Berman determined that, per Table 16-6 on page 516,
the functional history modifier fell under grade modifier 1 (mild problem); per Table 16-7 on
page 517, the physical examination modifier was grade modifier 1 (mild problem); and per Table
16-8 on page 519, the clinical studies modifier fell under grade modifier 1 (mild problem). He
applied the net adjustment formula on page 521 to find that there was zero net adjustment from
the default rating of five percent. Dr. Berman stated that Dr. Becan improperly found that
appellant’s tibial nerve condition was “severe” with a class 1 default value of 10 percent under
Table 16-12 on page 536.2 He felt that the findings of Dr. Becan’s January 13, 2012 examination
fell under the category of mild motor and moderate sensory tarsal deficits per Table 16-12 and
therefore appellant’s tarsal condition fell under the class 1 default value of two percent.
Dr. Berman noted that the grade modifiers did not warrant an adjustment modification and
concluded that appellant’s tarsal condition equaled two percent impairment of his right leg. He
indicated that, using the Combined Values Chart on page 604, the five percent impairment due to
the Achilles tear combined with the two percent impairment due to the tibial nerve condition
equaled a total right leg impairment of seven percent.
In a July 19, 2012 decision, OWCP granted appellant a schedule award for a seven
percent permanent impairment of his right leg. The award ran for 20.16 weeks from January 13
to June 2, 2012. The award was based on the July 10, 2012 report of Dr. Berman, the medical
adviser.
Appellant requested a hearing. During a November 29, 2012 hearing with an OWCP
hearing representative, counsel argued that there was a conflict in the medical opinion evidence
regarding the extent of appellant’s right leg impairment between Dr. Becan and Dr. Berman.
In a February 19, 2013 decision, the hearing representative affirmed OWCP’s July 19,
2012 schedule award decision. She found that the weight of the medical evidence regarding
appellant’s right leg impairment rested with the opinion of Dr. Berman.
By decision dated December 18, 2013, the Board set aside OWCP’s February 19, 2013
decision and remanded the case to OWCP for further development.3 The Board determined that
there was a conflict in the medical opinion evidence regarding the extent of appellant’s right leg
impairment between Dr. Becan and Dr. Berman. The Board remanded the case to OWCP for
referral of appellant to an impartial medical specialist for examination and an opinion on his
right leg impairment. OWCP was instructed to issue an appropriate decision after carrying out
such development.
On remand OWCP referred appellant and the case record to Dr. Andrew Gelman, a
Board-certified orthopedic surgeon, for an impartial medical examination and evaluation of his
right leg impairment. In his March 6, 2014 report, Dr. Gelman discussed appellant’s factual and
medical history, including the course of treatment for his work injuries -- partial rupture of his
right Achilles tendon, right tarsal tunnel syndrome, and temporary contraction of his right tendon
sheath. He reported findings of his March 6, 2014 physical examination, including the findings
2

Dr. Berman indicated that appellant’s tarsal tunnel syndrome involved a branch of the tibial nerve.

3

Docket No. 13-1475.

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for range of motion and sensory loss testing. Regarding the partial Achilles tendon tear,
Dr. Gelman noted that reference should be made to Table 16-2 on page 501 of the sixth edition
of the A.M.A., Guides. He stated that, recognizing symmetric range of motion relative to the
right lower extremity versus the left lower extremity, appellant fell under class 1 which resulted
in a one percent default value. Referencing Tables 16-6 through 16-8, Dr. Gelman indicated that
appellant had a grade modifier 0 for functional history, a grade modifier 1 for physical
examination, and a grade modifier 1 for clinical studies. Application of the Net Adjustment
Formula yielded a value of -1 and the resultant movement one place to the left on Table 16-2 still
yielded a one percent impairment value. Dr. Gelman concluded that the contribution of the
Achilles tendon tear provided an impairment rating of one percent.
In his March 6, 2014 report, Dr. Gelman further advised that the tarsal tunnel component
of appellant’s right leg impairment would be addressed under Table 16-12 beginning on page
534 of the sixth edition of the A.M.A., Guides. Recognizing the data regarding peripheral nerve
impairment of the right lower extremity, appellant fell between mild and severe sensory residual
deficit. The mild sensory deficit default was two percent with the severe sensory deficit being 10
percent. Dr. Gelman indicated that appellant’s situation fell within that range and that his right
leg impairment due to the tarsal tunnel residuals was six percent. There was no change to this
value after applying calculations for grade modifiers for functional history, physical
examination, and clinical studies. Therefore, after combining the one percent and six percent
impairment values, appellant had total right leg impairment of seven percent. Dr. Gelman found
that appellant reached maximum medical improvement by January 13, 2012.
In a March 27, 2014 report, Dr. Morley Slutsky, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, stated that he had reviewed the medical
evidence of record, including the March 6, 2014 report of Dr. Gelman.
Dr. Slutsky
recommended that a supplemental report be obtained from Dr. Gelman to answer the question of
whether he used a goniometer to evaluate range of motion and to obtain additional information
about the method he used to evaluate sensory loss.
In a supplemental report dated April 21, 2014, Dr. Gelman stated that his March 6, 2014
examination included motor testing, sensory testing via light touch and pin prick, and goniometer
measurement with regard to ankle range of motion. He provided further details of his calculation
of appellant’s right leg impairment as initially described in his March 6, 2014 report. With
respect to Dr. Gelman’s finding that appellant had one percent impairment due to his right
Achilles tendon tear, Dr. Gelman noted that he had utilized an inclinometer (an angled
goniometer) for range of motion testing and made measurements under the standards of Figures
16-6 and 16-7 on page 546 of the sixth edition of the A.M.A., Guides. He also further discussed
his prior finding that appellant had a six percent impairment of his right leg due to peripheral
nerve impairment associated with the tarsal tunnel (specifically in the saphenous and medial
plantar nerve distributions). Dr. Gelman stated that he carried out light touch and pin prick under

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the standards of section 16.4 on pages 532 and 533 of the sixth edition of the A.M.A., Guides
and that his impairment values were derived from Table 16-12 beginning on page 534.4
In a June 4, 2014 decision, OWCP found that appellant did not meet his burden of proof
to establish that he has more than seven percent permanent impairment of his right leg, for which
he received a schedule award. It noted that the impartial medical specialist, Dr. Gelman, found
that appellant had seven percent permanent impairment of his right leg. Therefore, there was no
evidence that appellant had a greater right leg impairment.
Appellant requested a video hearing with an OWCP hearing representative. During the
October 20, 2014 hearing, counsel argued that Dr. Gelman did not conduct a thorough
examination, particularly with regard to range of motion and sensory loss testing.
In a December 5, 2014 decision, the hearing representative affirmed OWCP’s June 4,
2014 decision finding that appellant did not establish that he has more than seven percent
permanent impairment of his right leg. He found that Dr. Gelman, the impartial medical
specialist, properly evaluated appellant’s right leg impairment and that his impairment rating had
special weight.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.8
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the ankle, the relevant portion of the leg for the present case,

4

On May 17, 2014 Dr. Slutsky discussed Dr. Gelman’s impairment rating reports. He noted that he believed that
appellant actually had a lesser impairment associated with the right saphenous and medial plantar nerve distributions
and concluded that appellant had a total right leg impairment of three percent.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.

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reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.9 After
the Class of Diagnosis (CDX) is determined from the Foot and Ankle Regional Grid (including
identification of a default grade value), the Net Adjustment Formula is applied using the Grade
Modifier for Functional History (GMFH), Grade Modifier for Physical Examination (GMPE)
and Grade Modifier for Clinical Studies (GMCS). The Net Adjustment Formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).10
Section 8123(a) of FECA provides in pertinent part: “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.”11 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.12 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.13
ANALYSIS
OWCP accepted that on April 20, 2010 appellant sustained partial rupture of his right
Achilles tendon, right tarsal tunnel syndrome, and temporary contraction of his right tendon
sheath due to stepping down from a truck at work. In a July 19, 2012 decision, it granted him a
schedule award for a seven percent permanent impairment of his right leg.
In a December 18, 2013 decision, the Board set aside OWCP’s prior schedule award
determination and remanded the case to OWCP for further development. The Board determined
that there was a conflict in the medical opinion evidence regarding the extent of appellant’s right
leg impairment between Dr. Becan, an attending Board-certified orthopedic surgeon, and
Dr. Berman, a Board-certified orthopedic surgeon serving as an OWCP medical adviser.14
On remand, OWCP referred appellant and the case record to Dr. Gelman, a Boardcertified orthopedic surgeon, for an impartial medical examination and evaluation of his right leg
impairment. In his March 6 and April 21, 2014 reports, Dr. Gelman found that appellant had a
seven percent permanent impairment of his right leg under the standards of the sixth edition of
9

See A.M.A., Guides (6th ed. 2009) 501-08.

10

Id. at 515-22.

11

5 U.S.C. § 8123(a).

12

William C. Bush, 40 ECAB 1064, 1975 (1989).

13

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

14

In a January 13, 2012 report, Dr. Becan determined that appellant had 15 percent permanent impairment of his
right leg under the standards of the sixth edition of the A.M.A., Guides. In contrast, Dr. Berman determined on
July 10, 2012 that appellant had seven percent permanent impairment of his right leg under the standards of the sixth
edition of the A.M.A., Guides.

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the A.M.A., Guides. The Board notes that the weight of the medical evidence with regard to
appellant’s right leg impairment is represented by the well-rationalized reports of Dr. Gelman.15
Dr. Gelman noted that, regarding appellant’s partial Achilles tendon tear, reference
should be made to Table 16-2 on page 501 of the sixth edition of the A.M.A., Guides. He
indicated that appellant fell under class 1 which resulted in a one percent default value.
Referencing Tables 16-6 through 16-8, Dr. Gelman stated that appellant had a grade modifier 0
for functional history, a grade modifier 1 for physical examination, and a grade modifier 1 for
clinical studies. Application of the Net Adjustment Formula yielded a value of -1 and the
resultant movement one place to the left on Table 16-2 still yielded a one percent impairment
value. Dr. Gelman concluded that the contribution of the Achilles tendon tear provided an
impairment rating of one percent. He considered the tarsal tunnel component of appellant’s right
leg impairment under Table 16-12 beginning on page 534 of the sixth edition of the A.M.A.,
Guides. Appellant fell between a mild and severe sensory residual deficit related to his
saphenous and medial plantar nerve distributions. His right lower extremity impairment
attributable to the tarsal tunnel residuals was six percent.16 Therefore, after combining the one
percent and six percent impairment values, appellant had a total right leg impairment of seven
percent.
On appeal, counsel argued that Dr. Gelman did not conduct adequate range of motion
testing for appellant’s right leg. However, in his April 21, 2014 supplemental report, Dr. Gelman
explained that he had utilized an inclinometer (an angled goniometer) for range of motion testing
and made measurements under the standards of Figures 16-6 and 16-7 on page 546 of the sixth
edition of the A.M.A., Guides. Counsel also argued that Dr. Gelman did not conduct adequate
sensory loss testing. However, Dr. Gelman noted that that he carried out light touch and pin
prick under the standards of section 16.4 on pages 532 and 533 of the sixth edition of the
A.M.A., Guides and that his peripheral nerve impairment values were derived from Table 16-12
beginning on page 534. The Board notes that his range of motion and sensory loss testing was
carried out in accordance with the standards of the sixth edition of the A.M.A., Guides.
Appellant has not submitted probative medical evidence showing that he has more than
seven percent permanent impairment of his right leg, for which he received a schedule award.17
He may request a schedule award or increased schedule award based on evidence of a new
exposure or medical evidence showing progression of an employment-related condition resulting
in permanent impairment or increased impairment.

15

See supra notes 11 through 13.

16

See supra notes 8 and 9.

17

On May 17, 2014 Dr. Slutsky, a Board-certified occupational physician serving as an OWCP medical adviser,
found that appellant had a total right leg impairment of three percent. There is no evidence or record showing that
appellant has more than seven percent right leg impairment.

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CONCLUSION
The Board finds that appellant did not met his burden of proof to establish that he has
more than a seven percent permanent impairment of his right leg, for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2015
Washington, DC

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

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

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

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

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

Docket No. 15-1197
Issued: October 1, 2015

Case Submitted on the Record

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

JURISDICTION
On April 24, 2015 appellant filed a timely appeal from an October 29, 2014 merit
decision and a December 2, 2014 nonmerit 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 501.3,2 the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she had
any employment-related disability from August 26 to September 16, 2014 due to the accepted
conditions; and (2) whether OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final
decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

On appeal appellant generally disagrees with OWCP decisions.
FACTUAL HISTORY
On December 23, 2013 appellant, then a 52-year-old equipment operator, filed a
traumatic injury claim alleging that on December 5, 2013 she had injured her hip and back when
she was jolted by a forklift while driving equipment at work. She did not stop work. On
January 17, 2014 OWCP accepted sprain of the back, lumbar region. In February 2014,
appellant came under the care of Dr. John D. Dockery, Board-certified in physical medicine and
rehabilitation, who reported a history that she had been hit by another forklift in December 2013.
Appellant filed a Form CA-7, claim for compensation, for the period August 26 to
September 5, 2014. On August 26, 2014 Dr. Dockery noted a history that appellant was last seen
five months previously when she was doing well and reported that about a month previously her
lower back pain had returned with radiation into the right leg, worse with standing. Physical
examination demonstrated 5/5 strength, intact sensation, and a negative straight leg raise.
Dr. Dockery diagnosed degenerative joint disease and recommended a magnetic resonance
imaging (MRI) scan of the lumbar spine. He further advised that appellant was unable to work.
By letter dated September 8, 2014, OWCP informed appellant of the evidence needed to
support her disability claim. This was to include a report from her physician that included a
thorough explanation, supported by objective findings, of how her accepted condition had
worsened to the extent that she could no longer perform work duties. Appellant submitted
additional Form CA-7 claims for compensation for the period September 6 to 16, 2014.
A September 15, 2014 MRI scan of the lumbar spine demonstrated degenerative disc
changes and discogenic endplate edema and a minimal disc bulge and facet change at L4-5 and
L5-S1. On September 17, 2014 Dr. Dockery noted his review of the MRI scan study. He noted
that appellant had right-sided pain in the L4 and L5 area and sciatic notch with positive facet
loading on physical examination. Dr. Dockery diagnosed lumbar sprain, degenerative lumbar
intervertebral disc, thoracic/lumbosacral neuritis, and lumbosacral spondylosis. He advised that
appellant could return to light duty on September 18, 2014 with no lifting over 20 pounds. On
October 21, 2014 Dr. Dockery performed right L4 and L5 facet joint injections.
By decision dated October 29, 2014, OWCP denied appellant’s claim for compensation
for the period August 26 to September 16, 2014 because the medical evidence did not explain
why she was unable to work as a result of the December 5, 2013 employment injury for the
period alleged.
On November 24, 2014 appellant requested reconsideration. She stated that she
disagreed with the decision and would obtain additional supportive medical evidence. Appellant
submitted no additional evidence.
In a nonmerit decision dated December 2, 2014, OWCP denied appellant’s
reconsideration request.

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LEGAL PRECEDENT -- ISSUE 1
Under FECA the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.3 Furthermore, whether a particular
injury causes an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by a preponderance of the reliable, probative, and
substantial medical evidence.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.6 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish that she had
any employment-related disability from August 26 to September 16, 2014 due to the accepted
condition, sprain of back, and lumbar region.
In support of her disability claim, appellant submitted reports from Dr. Dockery dated
August 26 and September 17, 2014. Dr. Dockery initially noted a history that she had been
doing well when last seen five months previously, but that she now reported an approximate
one-month history of lower back pain with radiation into the right leg, worse with standing. He
described examination findings of 5/5 strength, intact sensation, and a negative straight leg raise.
Dr. Dockery diagnosed degenerative joint disease, recommended an MRI scan study of the
lumbar spine, and advised that appellant was unable to work. On September 17, 2014 he
reported that the September 15, 2014 MRI scan study demonstrated degenerative changes.
Dr. Dockery described examination findings of right-sided pain in the L4 and L5 and diagnosed
lumbar sprain, degenerative lumbar intervertebral disc, thoracic/lumbosacral neuritis, and
lumbosacral spondylosis. He advised that appellant could return to light duty on September 18,
3

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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2014 with no lifting over 20 pounds. On October 21, 2014 Dr. Dockery performed right L4 and
L5 facet joint injections.
Even though Dr. Dockery advised that appellant could not work from August 26 to
September 18, 2014, he did not offer any explanation of the mechanics of how the December 5,
2013 lumbar sprain caused her diagnosed low back condition. The Board has long held that
medical conclusions unsupported by rationale are of diminished probative value and insufficient
to establish causal relationship.8 Dr. Dockery’s reports are insufficient to establish that appellant
was totally disabled for the claimed period.
As appellant did not submit sufficient rationalized medical opinion evidence to establish
that she was unable to work from August 26 to September 16, 2014 due to the accepted lumbar
sprain, she failed to establish that she was disabled, and is thus not entitled to wage-loss
compensation for the period claimed.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.10 Section 10.608(a) of OWCP regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meets at least one of the standards described in section
10.606(b)(3).11 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.12 Section 10.608(b) provides that, when a request for
reconsideration is timely but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.13

8

See Albert C. Brown, 52 ECAB 152 (2000).

9

N.R., Docket No. 14-114 (issued April 28, 2014).

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.608(a).

12

Id. at § 10.608(b)(1) and (2).

13

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
With her November 24, 2014 reconsideration request appellant merely stated that she
disagreed with the decision and that she would obtain additional supportive medical evidence.
She did not allege or contend that OWCP erroneously applied or interpreted a specific point of
law, or advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant was not entitled to a merit review of the merits of her claim under the first and second
requirements under section 10.606(b)(3).14
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted no additional evidence.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
totally disabled for the period August 26 to September 16, 2014. The Board further finds that
OWCP properly refused to reopen her case for further consideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

14

Id. at § 10.606(b)(2).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 2 and October 29, 2014 are affirmed.
Issued: October 1, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE AIRFORCE, 61
MSS/DPCE, El Segundo, CA, Employer
__________________________________________

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Appearances:
James Hefflin, for the appellant
Office of Solicitor, for the Director

Docket No. 09-357
Issued: September 15, 2009

Case Submitted on the Record

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

JURISDICTION
On November 19, 2008 appellant filed a timely appeal from an August 25, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs, denying reconsideration of an
April 17, 2006 merit decision. As over a year has passed since the date of the last merit decision,
dated April 17, 2006 and the filing of this appeal, dated November 19, 2008, the Board lacks
jurisdiction over the merits of appellant’s claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On November 3, 2004 appellant, a police officer, filed an occupational disease claim
(Form CA-2) for reconstructive foot surgery with a fusion of the 1st and 2nd metatarsal-cuneiform
1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

joint of the right foot and bone spurs of the tarsal area of both feet. He attributed his injuries to
standing for prolonged hours and having to walk large areas to maintain the physical security of
the installation. Appellant reported that, while recovering from foot surgery, his physician,
during a follow-up visit, determined that his condition was directly associated with his
employment.
By decision dated February 23, 2005, the Office denied appellant’s claim because the
evidence of record was insufficient to establish that he sustained an injury as defined by the
Federal Employees’ Compensation Act.
Appellant disagreed and, through his representative, requested reconsideration.
By decision dated April 17, 2006, the Office modified its February 23, 2005 decision to
reflect that appellant had established the alleged factors of employment but denied his claim
because the evidence of record was insufficient to establish that these factors caused his claimed
bilateral foot condition, rather than his prior civilian and military employment.
Appellant disagreed and, through his representative, requested reconsideration on
August 8, 2008.
Appellant submitted a December 15, 1999 operative medical report signed by
Dr. Douglas H. Richie, Jr., podiatrist, who performed a bilateral ostectomy cuneiform.
In an April 15, 2006 medical note, Dr. Steve Reynolds reported that he had been
appellant’s primary care physician for the past 10 years. He noted that in 1999, he referred
appellant to a specialist, Dr. Douglas Richie, who agreed that appellant’s bilateral foot pain was a
result of “excessive wear and tear” likely caused and or exacerbated by his employment.
Dr. Richie opined that appellant’s foot problems were a direct result of his years as a federal
police officer.
In a May 19, 2006 medical report, Dr. Richie reported findings upon examination of
tenderness across appellant’s right midfoot as well as fibrosis and enlargement of the entire right
foot. He noted that appellant described forefoot pain for the past 20 years, which was unrelated
to his industrial injury. Dr. Richie found palpable scar tenderness at the right and left mid-feet
and regrowth of bone prominence at the right midfoot. He diagnosed appellant with right
midfoot post-traumatic degenerative arthritis. Dr. Richie opined that appellant developed
radiographic evidence of accelerated degenerative joint disease during the period October 23,
1999 through March 11, 2004 evidence of which, though not clear on October 23, 1999, became
obvious over the next three years while appellant was employed by the Federal Government.
By decision dated August 25, 2008, the Office denied reconsideration because appellant’s
request was untimely and did not demonstrate clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
2

Office decision, for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence of error on the part of the Office in its most
recent merit decision. The application must establish, on its face, that such decision was
erroneous.2
When an application for review is not timely filed, the Office must nevertheless
undertake a limited review to determine whether the application establishes “clear evidence of
error.”3 Office regulations and procedure provide that the Office 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 the Office.4
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized medical report, which if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the director’s own motion.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.6 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.7 This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office.8 The Board makes an independent determination of whether a claimant has

2

20 C.F.R. § 10.607.

3

See 20 C.F.R. § 10.607(b); D.D., 58 ECAB ___ (Docket No. 06-1148, issued November 30, 2006); Charles J.
Prudencio, 41 ECAB 499, 501-02 (1990).
4

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] 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.” Id. at Chapter 2.1602.3c.
5

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.1602.3(b) (April 1991).

6

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman,
55 ECAB 143 (2003).
7

See Leona N. Travis, 43 ECAB 227, 240 (1991).

8

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

3

submitted clear evidence of error on the part of the Office such that the Office abused its
discretion in denying merit review in the face of such evidence.9
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.10 A right to reconsideration
within one year also accompanies any subsequent merit decision.11 As appellant’s August 8,
2008 request for reconsideration was submitted more than one year after the last merit decision
of record, dated April 17, 2006, it was untimely. Consequently, he must demonstrate clear
evidence of error by the Office in denying his claim for compensation.12
The Board also finds that appellant’s request for reconsideration failed to demonstrate
clear evidence of error. Appellant, through his representative, contended that the Board should
consider the merits of his claim. Appellant’s representative, in a lengthy memorandum, argued
that the Office had not properly developed appellant’s claim as required by the Office’s
procedural manual. The representative, citing several examples of the Board case law, argued
that the evidence of record was sufficient to establish causal relationship and that there was no
evidence to the contrary in the record. Finally, the representative argued that the Office’s
April 17, 2006 decision, found that the evidence of record established fact of injury, which the

9

See Alberta Dukes, 56 ECAB 247 (2005).

10

20 C.F.R. § 10.607(a).

11

Robert F. Stone, 57 ECAB 292 (2005).

12

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

representative interpreted to mean that appellant’s injury occurred in the performance of duty
and, therefore, he was entitled to payment of as well as reimbursement for, expenses incurred for
medical treatment necessitated by the accepted injury.13
The burden is on appellant to submit evidence required to establish his claim within the
statutorily defined time limits.14 While the representative asserts an appeal that the Office bore a
duty to develop his claim that included an obligation to seek a clarifying opinion from his
attending physician or a second opinion evaluation, this assertion is not clear evidence that the
Office’s denial was erroneous. The Office, as required by its procedural manual, is encouraged
to seek clarifying opinions and second opinion evaluations when, for example, a discrepancy in
the evidence exists between complaints of disability and objective findings.15 The clarifying
opinion and second opinion evaluation tools for resolving conflicts and discrepancies in the
evidence and are not tools whereby the Office shares appellant’s initial burden of establishing his
claim.16
As noted above, because over a year has passed since the date of the last merit decision,
dated April 17, 2006 and the filing of this appeal, dated November 19, 2008, the Board lacks
jurisdiction over the merits of appellant’s claim.17 Therefore, the representative’s arguments
13

While the Office’s April 17, 2006 decision found that the evidence of record established fact of injury, the
Office denied appellant’s claim because the evidence of record was insufficient to establish the causal relationship
between her injury and his federal employment.
An employee seeking benefits under the Act, 5 U.S.C. §§ 8101-8193, has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United States within the
meaning of the Act, that the claim was timely filed within the applicable time limitation period, that an injury was
sustained in the performance of duty as alleged and that any disability or specific condition for which compensation
is claimed is causally related to the employment injury. Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton,
40 ECAB 1143, 1145 (1989). To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is claimed; and
(3) medical evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee. Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
In its April 17, 2006 merit decision, the Office found that the factual and medical evidence was sufficient to
establish that appellant performed duties of a police officer, element one of fact of injury and a diagnosis in
connection with factors of employment which included prolonged standing and walking, element 2 of fact of injury.
However, the Office denied appellant’s claim because the evidence of record was insufficient to establish that his
bilateral foot conditions and subsequent surgeries were causally related to his federal employment, element 3. Thus,
appellant has not met his burden because he did not establish the requisite causal relationship, element 3 and,
therefore, is not entitled to compensation benefits.
14

20 C.F.R. § 10.115(a).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Requesting clarification from the attending physician,
Chapter 2.810.8(a) (October 2005).
16

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Second Opinion Examinations, Chapter
2.810.9 (October 2005).
17

See 20 C.F.R. at §§ 501.2(c) and 501.3(d)(2).

5

concerning whether or not the evidence of record established a causal relationship between
appellant’s alleged condition and his federal employment are not convincing because appellant’s
failure to file his reconsideration request within the one year limit18 precludes the Board’s review
of the merits of appellant’s claim.
The only relevant issues on appeal are the timeliness of appellant’s reconsideration
request and whether he established clear evidence of error on the part of the Office, neither of
which he or the representative addressed.19
In support of his untimely reconsideration request, appellant submitted medical reports
from Drs. Richie and Reynolds. None of these documents demonstrated clear evidence of error
on the part of the Office when it decided the case on the evidence in the record at the time.
Evidence which does not raise a substantial question concerning the correctness of the Office’s
decision is insufficient to establish clear evidence of error.20 Dr. Reynolds’ note did not proffer a
diagnosis or contemporaneous findings upon examination, nor did he raise a substantial question
concerning the correctness of the Office’s decision. Although Dr. Reynolds’ opined that
appellant’s injury was a direct result of his federal employment, he did not ever describe the
implicated work factors in any detail or provide any explanation of why he felt that work factors
contributed to appellants injury.21
Dr. Richie’s December 15, 1999 report is of limited relevance as it concerned a surgical
procedure and proffers nothing of relevance concerning causal relationship. Thus, it raises no
substantial question concerning the correctness of the Office’s decision and, therefore, is
insufficient to establish clear evidence of error.
In his May 19, 2006 report, Dr. Richie diagnosed right midfoot post-traumatic
degenerative arthritis and opined that this condition was caused by prolonged standing and
walking that appellant performed in the course of his federal employment. However, this
evidence also is insufficient to raise a substantial question as to the correctness of the Office’s
decision as these reports do not sufficiently address the underlying deficiency in the claim -- the
causal relationship of appellant’s diagnosed condition to his employment. The mere fact that a
disease manifests itself during a period of employment does not raise an inference that there is a
causal relationship between the two.22 His report is of limited relevance to the main issue of the
present case because Dr. Richie did not describe the implicated work factors in any detail or
provide any explanation of why he felt that work factors contributed to appellant’s injury and,
18

Id. at § 10.607(a).

19

Id. at § 10.607(b).

20

See Alberta Dukes, 56 ECAB247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004). See also
Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms do not, in the opinion of the
Board, constitute evidence of a sufficiently substantial nature).
21

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
22

See Ausberto Guzman, 25 ECAB 362 (1974).

6

therefore, does not raise a substantial question concerning the correctness of the Office’s
decision.23
As noted above, the term clear evidence of error is intended to represent a difficult
standard. 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 and would not require a review of the case.24 Neither
Dr. Richie or Dr. Reynolds raised a substantial question as to the correctness of the Office’s
August 25, 2008 merit decision or demonstrate clear evidence of error and, therefore, these
reports are insufficient to establish clear evidence of error.
The evidence submitted in support of appellant’s untimely reconsideration request is
insufficient to establish clear evidence of error. The evidence appellant submitted on
reconsideration fails to meet this standard. Therefore, the Board finds that this evidence is
insufficient to raise a substantial question as to the correctness of the Offices decision and does
not establish clear evidence of error.
For these reasons, the Office properly denied appellant’s request for reconsideration.
CONCLUSION
The Office properly determined that appellant’s request for reconsideration dated
August 8, 2008 was untimely filed and did not demonstrate clear evidence of error.

23

See supra note 21.

24

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (October 2005);
James R. Mirra, 56 ECAB 738 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the August 25, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2009
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


United States Department of Labor
Employees Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Warwick, RI, Employer
__________________________________________

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

Docket No. 07-814
Issued: October 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 5, 2007 appellant filed a timely appeal of the decisions of the Office of
Workers’ Compensation Programs dated February 23, June 14 and September 22, 2006 and
January 10, 2007 denying his claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty on January 6, 2006; and (2) whether the Office
properly denied appellant’s requests for subpoenas and other discovery.
FACTUAL HISTORY
On January 10, 2006 appellant, then a 39-year-old internal revenue agent, filed a
traumatic injury claim alleging that on January 6, 2006, while driving home from work, his car
was hit from behind as he slowed to stop for a red light. As a result of this accident, he sustained

neck and back injuries. Appellant submitted a copy of the police report related to the automobile
accident. By letter dated February 10, 2006, the employing establishment controverted his
claim, contending that the injury occurred off its premises at a time when appellant was not
engaged in official duties. According to appellant’s manager, appellant was not in a travel status
and was working at the office on that date. The employing establishment noted that appellant’s
job description stated that the performance of his duties might require travel and the operation of
a motor vehicle, but it was not mandatory that appellant bring his own automobile for use during
the workday.
By decision dated February 23, 2006, the Office denied appellant’s claim because he had
not established that the injury was sustained in the performance of duty.
On March 6, 2006 appellant requested an oral hearing. By letter dated April 5, 2006, he
requested that the Office issue subpoenas and require that various supervisors and revenue agents
at his post-of-duty station respond to certain questions.1 By decision dated June 14, 2006, the
hearing representative denied appellant’s request for the issuance of subpoenas for records and
other documents. She noted that on May 16, 2006 her office sent appellant a copy of the record.
The hearing representative further noted that she was not able to compel any other discovery
actions, such as directing the employing establishment to answer interrogatories or provide
affidavits.
During a telephonic hearing held on July 10, 2006, appellant described his post-of-duty
station, indicating that it was a stopping point where he would pick up cases and internal
documents and where he had a telephone line with voice mail. He also noted that it was where
he submitted his cases and picked up his mail. Appellant worked at that location about 10
percent of the time. He stated that, as a field revenue agent, he spent most of his time on
independent investigations in the field. Appellant noted that, when he was not working in the
field he was allowed to work at an alternative site or at home. He did not have to report to the
post-of-duty station on any particular day but did have to account for his time. On the date of the
accident, he had worked the whole day at the post-of-duty station. He noted that, although he
was at the station the whole day, he could have, at his discretion, left for government business.
Appellant stated that his commuting expenses for business trips to and from his post-of-duty
station were reimbursed. He further indicated that he would be reimbursed for expenses driving
from his home to an alternate work site and back. Appellant was not reimbursed for trips
between his post-of-duty station and his home. He noted that there was no legal requirement that
he use his own vehicle; however, public transportation was not a viable option for his job
because he had to transport a computer and physical files belonging to taxpayers. Appellant
noted that there was no bus stop near his post-of-duty station and that there were no routes
stopping at “a lot of the relevant … areas.” He also called Mike Bastow, his union
representative, as a witness. Mr. Bastow noted that there were no government owned or leased
vehicles provided to any revenue agents in appellant’s office and, for about the last 15 to 20
years, all revenue agents in Rhode Island used their privately owned vehicles in the course of
1

Appellant requested that the Office subpoena all documents in his official file as well as any e-mail
correspondence and notes of telephone conversations between the employing establishment and the Office with
regard to this claim.

2

their day-to-day work. He noted that the employing establishment did not have any leased
government vehicles.
In a letter dated July 10, 2006, Mr. Bastow restated that, during the previous 15 to 20
years, the employing establishment expected that the revenue agents provide their own
transportation to and from work assignments as it was not conducive to use public transportation.
He also noted that it was the policy of the employing establishment that agents spend 70 percent
or more of their time out of the post-of-duty workstation on assignments and that, even when an
agent was in the office for an entire day, he might be called upon to report to the field to serve
summons or perform other outside duties.
Appellant also submitted copies of e-mails indicating that he informed the employing
establishment on March 6, 2006 that his personal vehicle would no longer be available for
official duties and that, if an alternative method of transportation was not made available, he
would cancel all appointments for the rest of the week and drive only to the duty station. In a
reply dated March 7, 2007, his supervisor stated:
“I realize that the [government] cannot make you use your [personal vehicle]. If
you do not use your [personal vehicle], how will you get your job done?? Please
let me know how you plan to do your job. Because you have refused to use your
[personal vehicle], your job performance may be impacted.”
Appellant submitted a position description indicating that an internal revenue agent spent
the majority of his time in the field. It noted that office time was spent ordering new returns,
conducting preaudit analysis, scheduling new appointments, researching, consulting with group
managers or audit specialists and preparing administrative reports.
On March 5, 2006 appellant sent an e-mail to several of his colleagues asking them to
respond to various questions concerning their work as field revenue agents and transportation for
their jobs. Approximately 14 agents responded. The agents agreed that they did not have access
to a government vehicle and were expected to get to appointments using their personal vehicles.
Several noted that public transportation was not a viable alternative because it did not go to the
places they needed to be and that it would be very difficult to utilize public transportation
lugging their computers. They also noted that public transportation was not reasonable due to
New England winters, the fact that appointments often changed without notice, the bus schedules
and security issues. They agreed that using their personal vehicle was a requirement of the job.
On August 4, 2006 the employing establishment, through the group manager, submitted
its response to the hearing representative. It noted that appellant had a cubicle within the postof-duty station, that he has a desk, computer hookup/monitor and telephone. He also had access
to the group manager and the group secretary. Appellant spent his entire workday on January 6,
2006, the date of his accident, at his post-of-duty station and, at the time of the accident, he had
completed his work and was on his way home. The manager noted that appellant spent an
average of 33 percent of his time from January 2005 through June 2006 at his post of duty and
37 percent of his time in the field. The manager noted that revenue agents were not reimbursed
for their commuting expenses to and from the post of duty unless a work-related stop was made

3

either before arriving or after leaving the post of duty. He stated that revenue agents in Rhode
Island used their privately-owned vehicles in the course of their duty and day-to-day work.
By decision dated September 22, 2006, the hearing representative affirmed the
February 23, 2006 decision.
By letter dated October 4, 2006, appellant requested reconsideration. He argued that the
hearing representative erroneously interpreted the law when he found that appellant had fixed
hours and a fixed workplace. Appellant also submitted a letter dated July 20, 2006 from the
employing establishment’s Washington, D.C., office indicating that there were no government
vehicles assigned to appellant’s post-of-duty station.
By decision dated January 10, 2007, the Office denied modification of its September 22,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees, Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
The Act provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.5 The phrase
“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.” In addressing the issue, the Board has stated that for an incident to occur in the
course of employment, in general, an injury must occur: (1) at a time when the employee may
reasonably be said to be engaged in his or her master’s business; (2) at a place where he or she
may reasonably be expected to be in connection with the employment; and (3) while he or she
was reasonably fulfilling the duties of his or employment or engaged in doing something
incidental thereto.6

2

5 U.S.C. §§ 8101-8193.

3

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

4

See Irene St. John, 50 ECAB 521(1999); Michael E. Smith, 50 ECAB 31 (1999); Elaine Pendleton, supra
note 3.
5

5 U.S.C. §8102(a).

6

George E. Franks, 52 ECAB 490 (2001).

4

The Board has also recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work, while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment. Rather such injuries
are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers.7 Due primarily to the myriad of factual situations presented by individual cases over
the years, certain exceptions to the general rule have developed where the hazards of travel may
fairly be considered a hazard of employment. Exceptions to the general coming and going rule
have been recognized, which are dependent upon the relative facts to each claim: (1) where the
employment requires the employee to travel on the highways; (2) where the employer contracts
to and does furnish transportation to and from work; (3) where the employee is subject to
emergency calls, as in the case of firemen; (4) where the employee uses the highway to do
something incidental to his or her employment with the knowledge and approval of the
employer; and (5) where the employee is required to travel during a curfew established by local,
municipal, county or state authorities because of civil disturbances or other reasons.8 The
Office’s procedure manual further indicates:
“Where the Employment Requires the Employee to Travel. This situation will not
occur in the case of an employee having a fixed place of employment unless on an
errand or special mission. It usually involves an employee who performs all or
most of the work away from the industrial premises, such as a chauffeur, truck
driver, or messenger. In cases of this type, the official superior should be
requested to submit a supplemental statement fully describing the employee’s
assigned duties and showing how and in what manner the work required the
employee to travel, whether on the highway or by public transportation. In injury
cases a similar statement should be obtained from the injured employee.”9
It is a well-established principle that where the employee as part of his or her job is
required to bring along his or her own car, truck or motorcycle for use during the working day,
the trip to and from work is by that fact alone embraced within the “course of employment.”10
ANALYSIS
The evidence establishes an exception to the general going and coming rule applicable to
most employees with fixed hours and place of employment as appellant was required to use his
personal vehicle for work in the field. The Board has noted that for coverage to arise, the injury
must take place while the employee is in the motor vehicle driving to or coming from work. In
Gabe Brooks11 the employee was an IRS agent whose “work was generally conducted out in the
7

See P.S., 57 ECAB ___ (Docket No. 06-114, February 8, 2006); Gabe Brooks, 51 ECAB 184 (1999).

8

Melvin Silver, 45 ECAB 677 (1994); Estelle M. Kasprazak, 27 ECAB 339 (1976); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(a)(1) (August 1992).
9

Id. at Chapter 2.804.6(b).

10

A. Larson, The Law of Workers’ Compensation § 15.05 (2000); Ronda J. Zabala, 36 ECAB 166 (1984).

11

51 ECAB 184 (1999).

5

field.” He was injured in an automobile accident after finishing work for the day. The Board
found that “persons whose work requires them to be in a travel status as ‘off premises workers’
and accordingly determines claims involving such workers under different principles….” The
Board recognized, “‘An off premises worker’ injured between work and home is generally
provided protection under the Act.” The Office and the Board each noted that the IRS revenue
agent there was an “off premises employee” and would have been considered to be in the course
of his employment were not for a deviation on his way home.
In Barbara Stamey (Ray C. Stamey)12 the employee, a Department of Agriculture
extension service agent, was killed in an automobile accident while driving his own car. The
employee there was required to use his own car to conduct business. While the Board there
found that the employee had deviated from his normal route, it recognized the “well-settled
principle of workers’ compensation law that where ‘the employee as part of his job is required to
bring with him his own car, truck or motorcycle for use during his working day, the trip to and
from work is by that alone embraced within the course of employment.’”
The Board finds that, based on the limited facts of this case, appellant is entitled to
coverage under the Act as his employment required him to travel on the highways. The record
demonstrates that appellant spent approximately 30 percent of his time at the post-of-duty office
where he would pick-up and drop-off cases and documents. He stated that he spent his other
work time in the field meeting taxpayers. Appellant spent about 30 percent of his work time at
the post-of-duty office and was in the field a greater period of time. Appellant needed to use the
vehicle to keep appointments in diverse areas that were not accessible by public transportation.
Mr. Bastow noted that there were no government motor vehicles provided for use by any revenue
agent and, for approximately 15 to 20 years, revenue agents customarily used their private motor
vehicles for work. On March 6, 2006 appellant informed his supervisors that he would no longer
make his personal motor vehicle available and, if other methods of transportation were not
found, he would have to cancel certain appointments. In a March 7, 2006 response, his
supervisor acknowledged that appellant could not be compelled to use his personal vehicle in his
work; however, she noted that his job performance could be impacted by his refusal to do so.
Although appellant did work at the post-of-duty station for the entire day of the accident, his car
was necessary in case he was called away for other business. The evidence indicates that,
although the employing establishment may not have contracted with appellant to provide the
vehicle, the testimony of appellant and his union representative and the responses to questions by
appellant’s colleagues indicate that a personal vehicle was essential for the performance of his
job. The evidence establishes that appellant used the highways to do work incidental to his
employment with the knowledge and approval of his employer. The evidence clearly establishes
that the use of his personal vehicle was a necessary requirement of his job. Thus, contrary to the
Office’s findings, the Board finds that appellant’s use of his personal vehicle was not at his
discretion.
Accordingly, because appellant in this case needed his vehicle to get to his appointments
and perform his duties which was a requirement of his job as well as being a benefit to the
employing establishment, the Board finds that he was in the performance of his duties when he
12

32 ECAB 1767 (1981).

6

was driving his vehicle to and from his employment. Therefore, although there is a presumption
that employees with fixed hours and places of work are not entitled to coverage for commuting
in the case of employees furnishing their own conveyance, coverage is extended when the
employee is in the vehicle and driving to and from work because he is required to take his
vehicle to perform his regularly assigned duties. Appellant has established that the injury
occurred in the performance of duty. The case must be remanded to the Office for development
of the medical evidence.
CONCLUSION
The Board finds that appellant was in the performance of duty at the time of the
January 6, 2006 accident. The Board further finds that this case is not in posture for a decision
as the Office did not address whether appellant submitted sufficient medical evidence to
establish that he sustained an injury in the performance of duty.13
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 10, 2007 and September 22, June 14 and February 23,
2006 are vacated and the case is remanded for further consideration consistent with this opinion.
Issued: October 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

13

In light of the Board’s disposition of the first issue, the second issue is moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, SUWANEE POST
OFFICE, Suwanee, GA, Employer
__________________________________________

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

Docket No. 19-1460
Issued: August 11, 2021

Case Submitted on the Record

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

JURISDICTION
On June 24, 2019 appellant filed a timely appeal from an April 29, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,760.04 for the period June 25 through July 21, 2018 for which she was without fault
because she continued to receive compensation following her return to work; (2) whether OWCP
1
The Board notes that, following the April 29, 2019 decision, appellant submitted additional evidence to OWCP
and to the Board on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

properly denied waiver of recovery of the overpayment; and (3) whether it properly required
recovery of the overpayment by deducting $225.00 every 28 days from appellant’s continuing
compensation.
FACTUAL HISTORY
On August 26, 2015 appellant, then a 54-year-old postal carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 17, 2015 she injured both knees when she picked up
large, heavy boxes while in the performance of duty. On October 8, 2015 OWCP accepted her
claim for strain of the knees, bilaterally. On October 8, 2015 appellant accepted a light-duty
position, working four hours a day with restrictions. OWCP paid appellant wage-loss
compensation on the supplemental rolls as of October 3, 2015.
On May 10, 2016 OWCP expanded the acceptance of appellant’s claim to include
exacerbation of osteoarthritis of the knees, bilaterally. Beginning October 25, 2016 it paid her
wage-loss compensation on the periodic rolls for total disability from work. Appellant returned to
full-time modified-duty work on December 5, 2016. However, she stopped work again and on
August 9, 2017 OWCP returned appellant to the periodic rolls.
On May 10, 2018 appellant’s treating physician released her to return to limited-duty
sedentary work, with occasional standing or walking, and lifting and carrying no more than 10
pounds.
In a letter dated May 18, 2018, OWCP directed the employing establishment to provide
appellant a limited-duty position within her restrictions. On June 4, 2018 it referred her for
vocational rehabilitation counseling.
By letter dated June 5, 2018, the employing establishment offered appellant a limited-duty
position of modified rural carrier and afforded her until June 8, 2018 to accept the position.
On June 25, 2018 appellant’s vocational rehabilitation counselor conducted a site visit at
the employing establishment with appellant. She noted that appellant had agreed to accept the
offered light-duty position of modified rural carrier, but that some of the duties exceeded
appellant’s limitations on walking and standing. On June 25, 2018 appellant accepted the modified
rural carrier position with a variety of restrictions.
In a letter dated July 25, 2018, the employing establishment noted that it had presented a
job offer to appellant for return to work on June 11, 2018. It noted that, to date, it had not received
the offer accepted or refused, but that appellant had informed her manager by telephone on June 12,
2018 that she was refusing the offer and that she was not obliged modified job offer.
On July 31, 2018 the vocational rehabilitation counselor indicated that appellant had
accepted the modified rural carrier position, and that the effective return-to-work date was
June 25, 2018.
In a letter dated August 1, 2018, OWCP noted that appellant had returned to work on
June 25, 2018 and that her actual wages met or exceeded the wages of the position she held when
she was injured. It terminated her compensation effective June 25, 2018 as she no longer had any
2

employment-related disability. OWCP further noted that a final 28-day compensation payment
that partially covered a period following appellant’s return to work had been issued, resulting in
excess payment of $3,055.83. It directed her to repay this amount.
On July 25, 2018 the vocational rehabilitation counselor noted that, as of June 26, 2018,
one of appellant’s physicians had directed her not to return to work until July 2, 2018.
On August 6, 2018 the employing establishment completed a report of termination of
disability (Form CA-3) indicating that appellant had returned to work on June 25, 2018.
In an August 20, 2018 preliminary overpayment determination, OWCP found that
appellant received an overpayment of compensation in the amount of $2,760.04 for the period
June 25 through July 21, 2018 because she continued to receive wage-loss compensation after
returning to full-time work. It determined that she was at fault in the creation of the overpayment
because she accepted a payment that she knew or should have known was incorrect. OWCP
attached a memorandum explaining its overpayment calculation. It provided her with her appeal
rights and a Form OWCP-20, overpayment recovery questionnaire. OWCP afforded appellant 30
days for a response.
On September 5, 2018 appellant requested a prerecoupment hearing and requested waiver
of recovery of the overpayment. She disagreed with the amount of the overpayment and disagreed
that she was at fault. Appellant further asserted that she did not return to work until July 2, 2018.
With the hearing request, appellant submitted a completed Form OWCP-20, wherein
appellant indicated that her total monthly income was $5,200.00 and that her total monthly
expenses were $3,400.00. She further indicated that she had assets of $13,500.00. Appellant also
provided an e-mail from her vocational rehabilitation counselor dated July 4, 2018, noting receipt
of a statement from appellant’s doctor releasing her to return to work, effective July 2, 2018.
The prerecoupment hearing was held on February 13, 2019. Appellant testified that she
signed the modified job offer on June 26, 2018, but did not return to work until July 2, 2018.
OWCP’s hearing representative requested a copy of appellant’s paystubs to ascertain her correct
return to work date. He also requested additional financial information to determine the
appropriate rate of recovery from appellant’s continuing compensation benefits.
By decision dated April 29, 2019, OWCP’s hearing representative found that appellant had
received an overpayment of compensation in the amount of $2,760.04 for the period June 25
through July 21, 2018 because she continued to receive wage-loss compensation following her
return to work. He determined that she had not substantiated her allegation that she returned to
work on July 2, 2018 rather than on June 25, 2018, as reported by the employing establishment.
OWCP’s hearing representative further found that appellant was without fault in the creation of
the overpayment as the overpayment was the result of an initial direct deposit after her return to
work. He denied waiver of recovery of the overpayment as appellant had not provided
documentation of her monthly expenses. OWCP’s hearing representative determined that the
overpayment would be recovered by deducting $225.00 every 28 days from appellant’s continuing
compensation as this amount would minimize interest charges and hardship on appellant while
allowing for recovery of the overpayment within a reasonable amount of time.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits.4 This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.5 OWCP’s regulations provide, in pertinent part, that compensation for
wage loss due to disability is available only for periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.6 A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.7 OWCP’s procedures provide that an overpayment of compensation is created when
a claimant returns to work, but continues to receive wage-loss compensation.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation because she continued to receive wage-loss compensation following her return
to work.
OWCP placed appellant on the periodic rolls on August 9, 2017. However, appellant
continued to receive wage-loss compensation on the periodic rolls for total disability from work
through July 21, 2018. As noted above, a claimant is not entitled to receive compensation for total
disability during a period in which he or she had actual earnings. Therefore, an overpayment of
compensation was created in this case.9
The Board further finds, however, that the case is not in posture for decision with regard
to the period and amount of the overpayment. OWCP determined that appellant had received an
overpayment of compensation in the amount of $2,760.04 for the period June 25 through July 21,
3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

Id.

6

20 C.F.R. § 10.500.

7

G.R., Docket No. 19-0940 (issued December 20, 2019); J.H., Docket No. 17-0592 (issued May 1, 2018).

8
Id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.2(a) (September 2018).
9

L.H., Docket No. 20-0115 (issued September 4, 2020); E.R., Docket No. 19-1365 (issued December 23, 2019);
J.L., Docket No. 18-1266 (issued February 15, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018); B.H.,
Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.1(a) (September 2018).

4

2018, finding that OWCP continued to pay her wage-loss compensation following her return to
work on June 25, 2018. The case record, however, is unclear as to appellant’s exact return to work
date. While, the employing establishment indicated that appellant had returned to work on
June 25, 2018, the vocational rehabilitation counselor noted that as of June 26, 2018 one of
appellant’s physicians had directed her not to work until July 2, 2018. Appellant also asserted that
she did not return to work until July 2, 2018.
OWCP has the burden of proof to establish the period and amount of an overpayment.10
OWCP’s procedures provide that it will usually receive notification of the return-to-work date
from the claimant, the employing establishment, and/or the field nurse or vocational rehabilitation
counselor. Once confirmed, the claims examiner should delete the claimant from the periodic rolls
and enter the return-to-work date (first date of non-entitlement). The overpayment will then be
automatically calculated based on this return to work date.11
As there remains conflicting information regarding appellant’s return to work date, the
period and amount of the overpayment have not been established. The case shall therefore be
remanded for OWCP to obtain additional information confirming the precise period and amount
of the overpayment. It shall then issue a new preliminary overpayment determination, with an
overpayment action request form, a Form OWCP-20, and instructions for appellant to provide
supporting financial information. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision regarding appellant’s overpayment.12
CONCLUSION
The Board finds that OWCP properly determined that an overpayment of compensation
was created. The Board further finds, however, that the case is not in posture for decision regarding
the period and amount of the overpayment.

10

See D.R., Docket No. 19-1675 (issued October 8, 2020); T.W., Docket No. 19-1266 (issued September 25, 2020);
C.P., Docket No. 19-0317 (issued July 1, 2019) (finding that OWCP did not meet its burden of proof to establish an
overpayment when it failed to document whether and when a claimant elected life insurance coverage after separation
from federal service or retirement in order to establish fact of overpayment of compensation.)
11

Supra note 8 at Chapter 6.0200.1a (September 2018).

12

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: August 11, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, MEMPHIS
NETWORK DISTRIBUTION CENTER,
Memphis, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0325
Issued: January 28, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 24, 2021 appellant filed an appeal from a February 5, 2019 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0325.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed her appeal.2 The case record as transmitted to the Board does not contain a final
adverse decision of OWCP issued within 180 days from the date of docketing of the current
appeal.3 The February 5, 2019 decision was an acceptance of appellant’s claim and, therefore,
does not constitute a final adverse decision. As there is no final adverse decision issued by OWCP

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

3

Id.

over which the Board may properly exercise jurisdiction, the Board concludes that th e appeal
docketed as No. 22-0325 must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0325 is dismissed.
Issued: January 28, 2022
Washington, DC

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

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

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
4

2