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

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

Docket No. 12-606
Issued: August 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 18, 2012 appellant filed a timely appeal of a December 21, 2011 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he tore a
tendon in his right hand in the performance of duty on October 31, 2011.
FACTUAL HISTORY
On November 4, 2011 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim alleging that he tore a tendon in his right hand on October 31, 2011. He stated that his
right hand started hurting about noon and during the course of his workday his hand began to
swell. In his undated narrative statement, appellant explained that he was performing his normal
1

5 U.S.C. § 8101 et seq.

work function when he began to experience right hand pain which increased during the day. He
stated that while delivering his route he noticed that his hand was swollen. After completing his
route appellant advised his manager of his injury and sought medical treatment the next day.
On November 1, 2011 appellant sought treatment for swelling and pain in his hand. He
submitted a note dated November 4, 2011 from Dr. David Bozentka, a Board-certified
orthopedic surgeon of professorial rank, stating that he could perform limited duty with his left
hand only.
OWCP requested that appellant provide additional factual and medical evidence in a
letter dated November 21, 2011. Dr. Bozentka completed a note dated November 7, 2011 and
stated that appellant had tenosynovitis related to the repetitive activities required in his
employment. Appellant completed a second statement on November 29, 2011 and repeated his
recollection of the events of October 31, 2011. He specified that the pain in his right hand began
between his right index and middle fingers while performing his daily routine as a carrier.
Appellant noted that the pain was mild around 1:45 p.m. and increased over the next hour and a
half. He also developed swelling on the back of his hand. Appellant stated that he informed his
manager. He reported for work on November 1, 2011, cased his route and asked to go to his
doctor.
By decision dated December 21, 2011, OWCP denied appellant’s claim finding that he
had not established that the events occurred as alleged. It stated that appellant did not provide
sufficient detail regarding the exact cause of his condition.
LEGAL PRECEDENT
OWCP defines a traumatic injury as “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”2 In order to
determine whether an employee actually sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
consists of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.3 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding

2

20 C.F.R. § 10.5(ee).

3

Elaine Pendleton, 40 ECAB 1143 (1989).

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facts and circumstances and his subsequent course of action. An employee has not met his
burden of proof of establishing the occurrence of an injury when there are such inconsistencies in
the evidence as to cast serious doubt upon the validity of the claim. Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent
difficulty following the alleged injury and failure to obtain medical treatment may, if otherwise
unexplained, cast sufficient doubt on an employee’s statements in determining whether a
prima facie case has been established. However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.4
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.5 Medical rationale includes a physician’s rationalized opinion
on the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.6
ANALYSIS
The Board finds that appellant has submitted sufficient factual information to establish
that an employment incident occurred on October 31, 2011 as alleged. Appellant stated that on
that date as he was performing his regular carrier duties he experience pain and swelling in his
right hand beginning at 1:45 p.m. He stated that as he continued to work delivering his route the
pain and swelling in his right hand increased. Appellant reported his condition to his supervisor
and sought medical attention on November 1, 2011. His statements are consistent with his
subsequent course of action. Appellant promptly provided notification of injury, reported his
injury to his supervisor, stopped work following the alleged injury and obtained medical
treatment.
The Board further finds, however, that appellant has not submitted the necessary medical
opinion evidence to establish a causal relationship between his work activities and his diagnosed
condition. The mere manifestation of a condition during a period of employment does not raise
an inference that there is a causal relationship between the condition and the employment.
Neither the fact that the condition became apparent during a period of employment nor the belief
that the employment caused or aggravated a condition is sufficient to establish causal
relationship.7
On November 1, 2011 appellant sought treatment for swelling and pain in his hand. The
only medical evidence in the record addressing the relationship between appellant’s condition
4

D.B., 58 ECAB 464, 466-67 (2007).

5

T.F., 58 ECAB 128 (2006).

6

A.D., 58 ECAB 149 (2006).

7

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

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and his employment is Dr. Bozentka’s November 7, 2011 note which stated that appellant had
tenosynovitis related to the repetitive activities required in his employment. This report is
insufficient to meet appellant’s burden of proof as Dr. Bozentka did not identify appellant’s
employment activities on October 31, 2011 and did not explain why the normal duties appellant
performed on that date would result in the diagnosed condition. Instead, Dr. Bozentka’s
November 7, 2011 note suggests that appellant’s condition may have resulted from repetitive
activities over the course of more than one work shift, or an occupational disease claim rather
than a claim for a traumatic injury. Without further detail and medical reasoning, this report is
not sufficient to meet appellant’s burden of proof.
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 submitted a clear statement attributing his right hand
condition to his regular employment duties on October 31, 2011. However, the Board further
finds that appellant has not submitted sufficiently detailed medical opinion evidence to establish
that he sustained a traumatic injury as a result of the employment events on October 31, 2011.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: August 3, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 14-186
Issued: April 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2013 appellant filed a timely appeal from the August 9, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment to her right hand,
warranting a schedule award.
FACTUAL HISTORY
On June 30, 2011 appellant, a 50-year-old mail processing clerk, filed an occupational
disease claim alleging an injury to her right wrist as a result of the repetitive nature of her duties.
OWCP accepted her claim for the condition of right carpal tunnel syndrome.
1

5 U.S.C. § 8101 et seq.

On November 15, 2012 appellant filed a claim for a schedule award. On April 1, 2013
OWCP advised her that it needed additional medical evidence, including a permanent partial
impairment rating from her treating physician.
In an April 4, 2013 report, Dr. James P. Fitzgerald, a Board-certified orthopedic surgeon,
noted that appellant was status post carpal tunnel release and was doing quite well. She still
complained of some weakness in her right hand and occasional symptoms, but overall she was
much better than she was prior to surgery. Findings on examination included essentially full
range of motion, some decreased grip strength. Dr. Fitzgerald found that appellant had reached
maximum medical improvement. Referring generally to the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009), Table 15-23, he found
appellant had a two percent hand impairment.
In a decision dated May 2, 2013, OWCP denied appellant’s schedule award claim on the
grounds that it had received no further evidence since its April 1, 2013 development letter.
Appellant requested reconsideration and resubmitted Dr. Fitzgerald’s impairment
evaluation.
On June 5, 2013 Dr. Henry J. Magliato, an OWCP medical adviser, reviewed
Dr. Fitzgerald’s report. He found that Dr. Fitzgerald showed no calculations or grade modifiers
to explain how he arrived at a two percent impairment for the right hand.
OWCP wrote to Dr. Fitzgerald on June 21, 2013. It provided him with a statement of
accepted facts and requested that he explain how he rated appellant’s impairment using the
method on pages 448 and 449 of the sixth edition of the A.M.A., Guides, including all grade
modifiers. Dr. Fitzgerald did not respond.
In a decision dated August 9, 2013, OWCP reviewed the merits of appellant’s case and
denied modification of its prior decision. It noted that Dr. Fitzgerald did not respond to its
request for clarification.
On appeal, appellant stated that Dr. Fitzgerald did not understand the proper procedure in
filling out the diagnosis.
LEGAL PRECEDENT
The schedule award provision of FECA2 and the implementing regulations3 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

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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. OWCP has adopted the American Medical Association,
Guides to the Evaluation of Permanent Impairment as the appropriate standard for evaluating
schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.6
ANALYSIS
To support her claim for a schedule award, appellant submitted an evaluation from
Dr. Fitzgerald, her orthopedic surgeon, who found that she had a two percent impairment of her
right hand, but he did not address how he arrived at this figure using Table 15-23, page 449 of
the A.M.A., Guides entitled “Entrapment/Compression Neuropathy Impairment,” which gives
impairment values for the upper extremity. OWCP wrote to him directly to ask for an
explanation, but it received no response.
The burden is upon the employee to establish by evidence that she is entitled to
compensation.7 As Dr. Fitzgerald did not explain how he used Table 15-23 to rate appellant’s
impairment, the Board finds that she has not met her burden to establish permanent impairment.
The Board will therefore affirm OWCP’s August 8, 2013 decision.
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 her burden to establish that she is entitled to a
schedule award.

5

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
7

Harold Hendrix, 1 ECAB 54 (1947).

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ORDER
IT IS HEREBY ORDERED THAT the August 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, AR, Employer
__________________________________________

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

Docket No. 10-1940
Issued: May 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 15, 2010 appellant, through his attorney, filed a timely appeal from a June 8,
2010 merit decision of the Office of Workers’ Compensation Programs which denied his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
hand condition causally related to his federal employment.
FACTUAL HISTORY
On September 3, 2009 appellant, then a 32-year-old office automation clerk, filed an
occupational disease claim alleging that he sustained osteoarthritis of both thumbs and bilateral
tendinitis due to typing eight hours a day at work.

In a September 22, 2009 statement, appellant explained that constant typing over an
eight-hour period every day at work caused the osteoarthritis in his thumbs and tendinitis. He
explained that his orthopedic doctor told him that his medical transcription work would be the
type of repetitive use to cause an injury of that nature. Appellant reported that his hand problems
began in 1996 or 1997 when he was diagnosed with bilateral tendinitis. He received treatment,
but the problem persisted on and off for several years. Appellant described the pain in his hands
as a constant dull ache with built up tension or stiffness.
In a September 14, 2009 letter, the employing establishment responded to appellant’s
claim. The employing establishment agreed with his description of his job position and
submitted additional documentation.
According to a September 8, 2009 incident report, appellant notified his supervisor that
he needed to visit the employee health unit because of tingling in his fingers. He was evaluated
at the employee health unit and was released to return to work without restrictions.
A September 1, 2009 illness report notes that an employee from Nursing Services
reported a work-related illness in his bilateral thumbs, hand and wrist as a result of repetitive
motion. The employee stated that Dr. R. Bryan Benafield, Jr., a Board-certified orthopedic
surgeon, diagnosed him with a joint condition.
In a September 24, 2009 letter, the Office requested the employing establishment respond
to appellant’s statement and provide a description of his position, including the physical
requirements of the job and any precautions taken to minimize the effects of the activities.
In an October 2, 2009 response letter, the employing establishment stated that it agreed
with appellant’s work description. Appellant’s supervisor reported that appellant worked five
days a week, sitting at his desk transcribing eight hours a day and used an adjustable keyboard
tray, ergonomic keyboard and a regular mouse. His output was 800 lines a day or 52,000
keystrokes daily. Appellant’s supervisor noted that appellant was diagnosed with bilateral
osteoarthritis of the thumbs. He did low impact exercises to provide strength to his hands, wrists
and forearms, used a tens unit muscle stimulator for one month, and saw an occupational
therapist within the last two weeks.
In a September 24, 2009 letter, the Office advised appellant that the evidence submitted
was insufficient to support his claim. It asked him to provide a comprehensive medical report
containing a clear diagnosis of a medical condition and an opinion, with stated medical rationale,
explaining whether any diagnosed condition was caused or aggravated by his employment
activities.
On October 16, 2009 appellant responded to the Office’s development letter. He noted
that his orthopedic doctor confirmed that his work activities fit the repetitive motion injury he
developed. Appellant has experienced pain from the osteoarthritis of bilateral thumbs for several
years but listed June 30, 2009 as the onset because that was the first time he visited a doctor for
treatment. His symptoms included: stiffness in the fingers, aching, involuntary cracking and
popping of the wrist and finger joints and some occasional tingling in his fingers. To relieve the
pain, appellant took breaks, did stretching exercises and used low impact exercise devices.

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Appellant also provided various clinic notes from Dr. Benafield. In a June 30, 2009
clinic note, Dr. Benafield diagnosed him with mild bilateral thumb carpometacarpal (CMC)
arthritis. Appellant reported a 15-year history of bilateral hand and wrist pain, mainly in the
thenar eminence area of both hands, which he attributed to typing all day. He described the pain
as a constant, dull ache with an occasional slight tremor. Appellant’s physical examination
revealed full range of motion of fingers, thumb, wrist and elbow, normal sensation in all
distributions and tenderness to the thumb CMC. He also had an equivocal Tinel’s over the
median nerve, a negative Phalen’s and Finkelstein’s and a positive grind test bilaterally. X-ray
examinations of both hands showed no significant bone injury with slight abnormalities of the
thumb metacarpal phalangeal joint and narrowing in the laterals of the thumb CMC.
In an August 24, 2009 clinic note, Dr. Benafield saw appellant for his thumb CMC
arthritis and noted complaints of pain in the ulnar aspect of the wrist and in the volar wrist and
forearm. Appellant told him that a physician at another Veterans Administration Medical Center
diagnosed appellant with flexor tendinitis. X-rays showed no significant bony abnormalities in
his wrists and a little bit of narrowing at the thumb CMC joint bilaterally with positive grind.
Appellant tested positive for Tinel’s over the median nerve with occasional numbness in the
hands and tenderness over the flexor tendons. Dr. Benafield did think that appellant had thumb
CMC arthritis and an overuse syndrome with some flexor tendinitis component. He further
stated that appellant might be developing carpal tunnel.
Appellant provided three duty status reports dated June 30, August 24 and October 7,
2009 stating that he sustained an overuse injury and his work restrictions included no lifting,
carrying, pulling or pushing over 10 pounds.
By decision dated November 12, 2009, the Office denied appellant’s claim on the
grounds of insufficient medical evidence establishing that his hand condition was a result of his
federal employment. It accepted his description of employment activities but found the medical
evidence insufficient to establish that his hand condition resulted from those work duties.
In an October 7, 2009 clinic note, Dr. Benafield reported that appellant improved with
physical therapy. He opined that appellant’s current problem was work related and was an
overuse syndrome. Appellant also resubmitted the June 30 and August 24, 2009 clinic notes and
physical therapy notes dated August 27 until October 20, 2009 with corresponding medical bills.
On November 20, 2009 appellant requested a telephone hearing before the Branch of
Hearings and Review.
On March 19, 2010 a telephonic hearing was held. Anthony Palmieri, appellant’s
attorney, and Michelle Shriber from the employing establishment also attended the hearing.
Appellant testified regarding his work as a transcriber for a total of 15 years. He also reiterated
that Dr. Benafield told him that typing all day would cause that kind of repetitive motion injury
he developed.
In a March 30, 2010 medical report, Dr. Benafield stated that appellant was his patient
who suffered from thumb CMC arthritis and flexor tendinitis. He further opined that appellant’s

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flexor tendinitis was work related and that any use of his hands, whether at home or at work,
could aggravate his underlying medical conditions.
In a decision dated June 8, 2010, an Office hearing representative affirmed the Office’s
denial of the claim finding that appellant did not provide a rationalized medical opinion
establishing how his bilateral thumb arthritis and flexor tendinitis were causally related to his
work duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the reliable,
probative, and substantial evidence2 including that he sustained an injury in the performance of
duty and that any specific condition or disability for work for which he claims compensation is
causally related to that employment injury.3 In an occupational disease claim, appellant’s burden
requires submission of the following: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or existence 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.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.6 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s condition surfaced during a period of employment nor his
1

5 U.S.C. § 8101 et seq.

2

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

3

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

D.I., 59 ECAB 158 (2007); D.U., Docket No. 10-144 (issued July 27, 2010); I.R., Docket No. 09-1229 (issued
February 24, 2010); W.D., Docket No. 09-658 (issued October 22, 2009).
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

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belief that his condition was aggravated by his employment is sufficient to establish causal
relationship.8 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.9
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that his hand
condition was causally related to his federal employment. The Office accepted that his
employment duties required constant typing for eight hours a day. The Board affirms the denial
of the claim because appellant failed to provide a rationalized medical opinion explaining how
his thumb CMC arthritis and flexor tendinitis were causally related to these employment duties.
Appellant provided clinic notes from Dr. Benafield. In a March 30, 2010 clinic note,
Dr. Benafield provided a diagnosis of thumb CMC arthritis and flexor tendinitis and stated that
appellant’s flexor tendinitis was work related. Similarly, in an October 7, 2009 clinic note, he
opined that appellant’s current problem was work related and was an overuse syndrome.
Dr. Benafield, however, failed to provide any rationale describing how appellant’s hand
condition resulted from the accepted employment duties. The Board notes that he did not
provide a medical history, which described appellant’s employment duties. Rationalized medical
opinion must relate specific employment factors identified by the claimant to the claimant’s
condition, with stated reasons by a physician.10 Dr. Benafield did not review appellant’s history
of injury or employment duties and did not give any explanation for how typing eight hours a
day could result in appellant’s hand condition. Essentially, he offered a medical conclusion but
no findings or explanation to support his conclusion. A mere conclusion regarding causal
relationship without supporting causal relationship is of little probative value.11
In a June 30, 2009 clinic note, Dr. Benafield provided a diagnosis of bilateral thumb
CMC arthritis and stated that he discussed the etiology of the condition with appellant.
However, he did not provide a medical opinion on the cause of appellant’s condition or address
how his work activities aggravated or contributed to his hand condition. In an August 24, 2009
clinic note, Dr. Benafield stated that he thought appellant sustained thumb CMC arthritis, but
again offered no opinion on the cause of his condition. Neither report contains an opinion
regarding the cause of appellant’s hand condition or an explanation on whether his thumb CMC
arthritis or flexor tendinitis was causally related to his federal employment.

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

Patricia Bolleter, 40 ECAB 373 (1988).

10

Solomon Polen, 51 ECAB 341 (2000); J.J., Docket No. 09-27 (issued February 10, 2009).

11

A.S.(D.S.) Docket 10-1147 (issued February 14, 2011).

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Appellant also submitted physical therapy notes dated August 27 until October 20, 2009.
A physical therapist, however, is not a physician as defined under the Act, and his reports are not
considered probative medical opinion evidence.12
As previously stated, the question of causal relationship is a medical one that must be
resolved by probative medical evidence.13 In this case, Dr. Benafield’s medical reports and
physical therapy notes are of limited probative. Thus, appellant failed to submit the necessary
medical evidence with a proper medical opinion explaining how his accepted work factors
caused his hand condition.14 He may submit additional evidence, together with a formal written
request for reconsideration, to the Office within one year of the Board’s merit decision, pursuant
to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
thumb CMC arthritis and flexor tendinitis were causally related to his federal employment.

12

See 5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357 (2000); R.C., Docket No. 09-2095 (issued
August 4, 2010).
13

D.I., 59 ECAB 158 (2007); Margaret Carvello, 54 ECAB 498 (2003).

14

Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB
365 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the June 8, 2010 decision of the Office of Workers’
Compensation Program is affirmed.
Issued: May 20, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-559
Issued: November 25, 2009

Case Submitted on the Record

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

JURISDICTION
On December 23, 2008 appellant, through her attorney, filed a timely appeal from
February 8 and November 17, 2008 merit decisions of the Office of Workers’ Compensation
Programs terminating compensation on the grounds that she refused an offer of suitable work.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective February 16, 2008 on the grounds that she refused an offer of suitable work. On
appeal, appellant’s representative contends that the Office adopted an adversarial approach by
accepting nonrationalized and equivocal medical reports by Office physicians at the expense of
thorough and consistent evidence supporting a continuing work-related disability.

FACTUAL HISTORY
On December 29, 2004 appellant, then a 79-year-old collection representative, filed a
traumatic injury claim (Form CA-1) alleging that, on December 23, 2004, while walking from
her car to the parking lot, she stepped in a depression in the concrete and fell on her face. She
sustained several cuts and bruises on her legs, hands and face and injured the middle finger of
her left hand and shoulder. On March 16, 2005 the Office accepted the claim for aggravation of
left shoulder sprain and aggravation of left hip sprain. Appellant returned to her regular duties in
2005. On September 21, 2005 she underwent a left shoulder rotator cuff repair, distal clavicle
excision and labral debridement. Appellant was out of work until June 19, 2006 when she
returned to light duty for one week with a restriction on lifting. On July 12, 2006 she filed a
claim for a recurrence (Form CA-2a) alleging that her condition had not improved since her
accident but that she was ordered to work by her supervisors. Appellant stated that she stopped
work on June 26, 2007 and that she needed shoulder replacement to relieve her pain. By
decision dated September 22, 2006, the Office accepted the recurrence claim and authorized
benefits. On January 12, 2007 it included permanent aggravation of left shoulder degenerative
joint disease as an accepted condition.
On March 1, 2007 the Office referred appellant to Dr. James Kipnis, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding her continuing disability.
Dr. Kipnis reviewed her medical and occupational history. He diagnosed osteoarthritis of the left
shoulder and a history of prior rotator cuff tear and repair of the left shoulder status post
arthroscopy with subacromial decompression and distal clavicle excision. Dr. Kipnis stated that
the December 23, 2004 fall permanently aggravated appellant’s left shoulder osteoarthritis. He
opined that she currently had a partial disability of a moderate degree but that she was
permanently restricted from performing her regular employment duties. However, Dr. Kipnis
stated that appellant would be capable of performing light or sedentary work activities, primarily
using her right arm for activities and with limited use of the left arm due to pain. He further
found that she reached maximum medical improvement unless she decided to pursue her surgical
options. Dr. Kipnis completed a work capacity evaluation indicating that appellant was unable to
reach above the shoulder, push, pull, lift, climb or operate a motor vehicle at work with her left
arm. He limited her operating a motor vehicle to and from work to one hour and restricted
pushing, pulling and lifting to 10 pounds with her right arm.
In a June 26, 2007 medical note, appellant’s treating physician, Dr. Brian McGinley, a
Board-certified orthopedic surgeon, stated that appellant was totally disabled for an indefinite
time with little or no prospect of returning to work. In a report dated June 26, 2007, he stated
that she was indefinitely out of work due to severe limitation in function and activities due to her
shoulder rotator cuff arthropathy.
The Office determined that a conflict of medical opinion existed between Drs. McGinley
and Kipnis as to appellant’s continuing disability and referred her to Dr. Richard A. Ritter, a
Board-certified orthopedic surgeon, for an impartial medical examination.
In an August 8, 2007 medical report, Dr. Ritter reviewed appellant’s medical history.
Physical examination revealed severe limitation of active motion in the shoulder in all directions.
Passive range of motion demonstrated forward elevation to approximately 90 degrees, external

2

rotation to approximately 10 degrees and internal rotation to the region of the left buttock, all of
which elicited pain and was accompanied by severe crepitus and clicking. Appellant
demonstrated good sensation, full painless motion of the elbow, wrist and fingers and adequate
and symmetric range of motion of the cervical spine. Dr. Ritter noted tenderness to palpation of
the left trapezius muscle and generalized tenderness over the anterior and lateral aspects of the
shoulder. Appellant’s overall stability appeared intact; however, Dr. Ritter stated that he had
difficulty performing apprehension testing due to motion limitations. Similarly, Dr. Ritter had
difficulty assessing strength due to the pain produced during testing. He diagnosed advanced
osteoarthritis or degenerative joint disease of the left shoulder. Dr. Ritter opined that the
December 23, 2004 employment injury permanently aggravated and potentially accelerated the
advancement of appellant’s underlying osteoarthritic condition. He concurred with Dr. Kipnis’
opinion that appellant was capable of working with restrictions. Dr. Ritter noted sympathy for
appellant as an 81-year-old woman with legitimate pain and severe restrictions, which could
preclude her ability to work extended periods of time. However, he opined that she could
perform light or sedentary work activities with her dominant right upper extremity with very
limited use of her left arm due to pain. For example, Dr. Ritter stated that appellant could
perform in person or telephone interviews, could sit for extended periods of time, talk over the
telephone using a headset or have face-to-face contact. Although appellant could not perform
even light lifting with her left upper extremity, she could perform reasonable lifting with her
dominant right upper extremity and would be able to read information from a computer screen.
Dr. Ritter noted that her ability to use a keyboard might be restricted due to pain; however, she
could possibly perform light typing with her right hand and would be able to dictate verbally.
Writing would also be possible with appellant’s right hand. Dr. Ritter added that her left
shoulder pain and discomfort might prevent her from working long hours. He opined that
appellant reached maximum medical improvement but noted that she may achieve an improved
medical condition with less pain if she underwent total shoulder replacement. In a work capacity
evaluation, Dr. Ritter indicated that she was unable to perform her usual duties and provided
permanent restrictions. The restrictions included a total limitation on reaching, reaching above
the shoulder, pushing, pulling and lifting with the left shoulder, operating a motor vehicle at
work and climbing. Dr. Ritter also provided a 1-hour restriction on operating a motor vehicle to
and from work, a 10-pound restriction on lifting with the right arm and recommended 15-minute
breaks every 2 to 3 hours. He indicated that appellant was able to sit, walk or stand for eight
hours.
On September 21, 2007 the Office advised the employing establishment that Dr. Ritter’s
opinion represented the weight of the medical evidence. It forwarded a copy of his work
restrictions to the employing establishment and requested that it offer appellant a position within
the provided restrictions.
On October 18, 2007 the employing establishment offered appellant a light-duty position
as a contact representative working from 3:00 p.m. to 11:30 p.m., eight hours a week. The
general job duties included conducting personal or telephone interviews with a wide range of
individuals, answering inquiries and advising taxpayers of enforcement activities and conducting
research for information and to locate taxpayers and their assets. Appellant would be in a seated
position and would be inputting data into a remote computer terminal at eye level. No reaching
or working above the shoulder level was required and she would not be required push, pull or lift
anything with her left hand or push, pull or lift anything exceeding 10 pounds with her right
3

hand. Appellant might be required to walk short distances on an intermittent basis, but not to
exceed a total of one hour a day. No stair climbing was involved and she would be allowed to sit
or stand at her convenience and permitted to take a 15-minute break every 2 to 3 hours.
In an amended offer dated October 23, 2007, the employing establishment noted that it
had made a typographical error in the prior offer and corrected appellant’s work hours to eight
hours a day, rather than eight hours a week.
By letter dated October 25, 2007, the Office notified appellant that it had reviewed the
employing establishment’s light-duty offer and found it suitable in accordance with her medical
limitations. It confirmed that the position was available and notified her that she would be paid
for any difference in pay between the offered position and her date-of-injury job. The Office
advised that appellant was expected to accept the position within 30 days or provide a written
explanation of her reasons for rejecting the offer otherwise her compensation and schedule award
would be terminated.
In a November 20, 2007 letter, appellant contended that she was not able to return to
work full time to use a computer. She stated that she was not able to use her arm in a position
where she has to move it forward, back or up and that she could not raise her arm away from her
body without increasing her constant pain. Appellant claimed that using her computer at home
was impossible and that she would be unable to speak to taxpayers with her pain and concentrate
on her duties. Further, she contended that Dr. Ritter told her that her shoulder was “a terrible
mess,” that he was biased and that he reduced her to tears while attempting to move her arm.
On December 3, 2007 the Office stated that it received appellant’s November 20, 2007
statement but that she did not provide a valid reason for refusing to accept the offered position.
It advised that the weight of the medical evidence rested with Dr. Ritter, who opined that
appellant could return to limited duty within the provided restrictions. The Office notified her
that she had 15 additional days to accept the offer or her benefits would be terminated.
In a December 10, 2007 letter, appellant informed the employing establishment that she
was declining the job offer due to physical injuries sustained from the December 23, 2004
employment injury. She also requested that the employing establishment start her retirement
process.
In a January 29, 2008 e-mail, the employing establishment clarified that an average
contact representative could work 20 to 30 cases a day and that 100 words per case was a general
guide. In addition to the narratives, the position would also require input of information and
command codes and logging on and off various systems.
By decision dated February 8, 2008, the Office terminated appellant’s compensation
benefits effective February 16, 2008 on the grounds that she failed to accept suitable
employment. It reviewed the offered light-duty position of customer representative and found
that the position was suitable and within the work restrictions provided by Dr. Ritter, who
represented the weight of the medical evidence.
On August 28, 2008 appellant, through her representative, filed a request for
reconsideration. In an accompanying brief, appellant’s representative contended that appellant
4

sustained more than a simple strain as a result of the employment injury and that the Office
failed to advise the second opinion and impartial medical examiner of severity of her injuries,
that the Office improperly referred her to Dr. Ritter and engaged in “[the physician] shopping,”
that Dr. Ritter’s report returning her to light duty was equivocal, at best and that the medical
evidence was consistent in establishing that her injuries were permanent.
Appellant also submitted medical reports dated March 31 through October 27, 2008
related to her acupuncture treatment and medical reports dated March 8 and October 2 and 9,
2007 addressing continuing left shoulder pain.
By decision dated November 17, 2008, the Office denied modification of the February 8,
2008 decision. It found that the light-duty position was within the physical limitations provided
by Dr. Ritter, who represented the weight of the medical evidence as an impartial medical
examiner. The Office also found that the arguments presented by appellant’s representative were
insufficient to justify refusal of the offered position.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides, at section 8106(c)(2), that a
partially disabled employee who refuses or neglects to work after suitable work is offered is not
entitled to compensation.1 Once the Office accepts a claim, it has the burden of justifying
termination or modification of compensation benefits under section 8106 for refusing to accept
or neglecting to perform suitable work.2 The Board has recognized that section 8106(c) serves as
a penalty provision as it may bar an employee’s entitlement to future compensation and, for this
reason, will be narrowly construed.3 To establish that a claimant has abandoned suitable work,
the Office must substantiate that the position offered was consistent with the employee’s
physical limitations and that the reasons offered for stopping work were unjustified.4 The issue
of whether an employee has the physical ability to perform a modified position offered by the
employing establish is primarily a medical question that must be resolved by the medical
evidence of record.5
The implementing regulations of the Act provide that an employee who refuses or
neglects to work after suitable work has been offered or secured for, the employee has the burden
of showing that such refusal or failure to work was reasonable or justified and shall be provided
with the opportunity to make such a showing before entitlement to compensation is terminated.6

1

5 U.S.C. § 8106(c)(2).

2

See Howard Y. Miyashiro, 51 ECAB 253 (1999).

3

See H. Adrian Osborne, 48 ECAB 556 (1997).

4

See Wayne E. Boyd, 49 ECAB 202 (1997).

5

See John E. Lemker, 45 ECAB 258 (1993); Camillo R. DeArcangelis, 42 ECAB 941 (1991).

6

20 C.F.R. § 10.517(a).

5

ANALYSIS
The Office accepted that appellant sustained an aggravation of left shoulder sprain,
aggravation of left hip sprain and permanent aggravation of left shoulder degenerative joint
disease as a result of an employment-related fall on December 23, 2004. Appellant returned to
work in 2005 until she underwent left shoulder rotator cuff repair on September 21, 2005. She
returned to light duty in June 19, 2006 but one week later sustained a recurrence of disability and
stopped working.
On March 1, 2007 the Office referred appellant to Dr. Kipnis for an evaluation of her
continuing disability. Dr. Kipnis opined that she could return to light duty and provided work
restrictions. In medical reports dated June 26, 2007, Dr. McGinley, appellant’s treating
physician, stated that appellant was totally disabled for an indefinite period of time and could not
work due to severe limitation in function and activities. The Office thereafter properly found a
conflict of medical evidence as to whether appellant was totally disabled, requiring a referral to
an impartial medical specialist for resolution.7
The Office referred appellant to Dr. Ritter, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in opinion. Dr. Ritter performed a thorough
evaluation on her and reviewed the extensive medical record. He reported examination findings
and opined that appellant could sit, walk or stand, eight hours a day with restrictions. These
restrictions included a total limitation on reaching, reaching above the shoulder, pushing, pulling
and lifting with the left shoulder, operating a motor vehicle at work and climbing, a 10-pound
weight restriction on lifting with the right arm and 15-minute breaks every 2 to 3 hours.
When a case is referred to an impartial medical specialist for the purpose of resolving a
conflict in medical opinion, the opinion of such specialist, if sufficiently well rationalized and
based on a proper background, must be given special weight.8 Dr. Ritter’s opinion represents the
weight of the medical evidence on the issue of appellant’s ability to work and establishes that she
was capable of working eight hours per day with the provided restrictions.
On October 18, 2007 the employing establishment offered appellant a light-duty position
as a contact representative in accordance with Dr. Ritter’s restrictions. It amended this offer on
October 23, 2007 to reflect that she would work eight hours a day. The Office reviewed this
position and found it to be suitable for appellant. The Board notes that the position was
consistent with the work restrictions provided by Dr. Ritter.
To properly terminate compensation under section 8106(c), the Office must provide
appellant notice of its finding that an offered position is suitable and give her an opportunity to
accept or provide reasons for declining the position.9 The Board finds that the Office properly
7

The Act, at 5 U.S.C. § 8123(a), in pertinent part, provides: If there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make an examination.
8

Kathryn Haggerty, 45 ECAB 383 (1994).

9

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

6

followed its procedural requirements in this case. By letter dated October 25, 2007, the Office
advised appellant that the offered position was suitable and provided her 30 days to accept the
position or provide reasons for her refusal. It further notified her that the position remained
open, that she would be paid for any difference in pay between the offered position and her dateof-injury job and that a partially disabled employee who refused suitable work was not entitled to
compensation.10
By letter dated November 20, 2007, appellant contended that she could not use a
computer because she was unable to move her arm away from her body without increasing her
constant pain and that she would not be able to concentrate on her duties of speaking with
taxpayers. She also took issue with Dr. Ritter’s medical report, stating that he was biased, had
told her shoulder was “a terrible mess” and reduced her to tears while attempting to move her
arm; however, appellant did not submit any medical evidence establishing that her physical
symptoms would prevent her from performing the light-duty position or to contradict Dr. Ritter’s
findings that she could perform light typing with her right hand. Further, appellant failed to
submit any evidence to support her allegations regarding Dr. Ritter’s evaluation. Thus, she did
not submit an acceptable reason for refusal.11
On December 3, 2007 the Office properly informed appellant that her reasons for
refusing the offered position were unacceptable and provided her 15 days to accept the position.
In a December 10, 2007 letter, appellant declined the job offer. As she refused suitable work, the
Officer properly terminated her wage-loss compensation effective February 16, 2008. At the
time of the termination, the weight of the medical evidence established that appellant could
perform the duties of the offered position.
Appellant’s representative subsequently submitted a brief for reconsideration arguing that
the Office did not appropriately apprise the second opinion physician and impartial medical
examiner of the severity of her injuries, that the Office engaged in “[the physician] shopping,”
that Dr. Ritter’s report was equivocal and that the medical evidence consistently established that
appellant’s injuries were permanent. He did not, however, provide any evidence supporting
these allegations. Appellant also submitted several medical reports relating to her continuing left
shoulder pain and acupuncture treatment, but these reports did not specifically address her work
restrictions or the offered job.12
An employee who refuses or neglects to work after suitable work has been offered to her
has the burden of showing that such refusal to work was justified.13 The Board finds that the
Office properly terminated appellant’s monetary compensation due to her refusal of suitable
work. Appellant did not, thereafter, establish that her refusal of suitable work was justified.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.801.4-4 (December 1993).

Determining Wage-Earning

11

See id. at 2.801.4-5. See also E.H., 60 ECAB ___ (Docket No. 08-1862, issued July 8, 2009).

12

See E.H., supra note 11.

13

20 C.F.R. § 10.517(a).

7

On appeal, appellant’s representative contends that the Office accepted nonrationalized
medical reports and ignored thorough and consistent evidence supporting a continuing workrelated disability. As stated above, the issue of whether an employee has the physical ability to
perform a modified position is primarily a medical question to be resolved by the medical
evidence of record.14 The Office properly referred appellant to Dr. Ritter, selected as the
impartial medical specialist, who reviewed her full medical history, including reports from her
treating physician. Dr. Ritter performed a thorough, documented physical evaluation and
provided work restrictions in accordance with his findings. His report was well rationalized and
his opinion, that appellant could return to light duty, constitutes the weight of the medical
evidence.15 Appellant did not submit any additional, rationalized medical evidence supporting a
continuing total disability or explaining why she could not perform the specific duties of the
offered position16 nor did she submit evidence establishing any deficiency in Dr. Ritter’s medical
report. Therefore, the Board finds that appellant’s contentions on appeal are not supported by
the record.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective February 16, 2008 on the grounds that she refused an offer of suitable work.

14

See John E. Lemker, supra note 5.

15

See Kathryn Haggerty, supra note 8.

16

See Catherine G. Hammond, 41 ECAB 375 (1990).

8

ORDER
IT IS HEREBY ORDERED THAT the November 17 and February 8, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 25, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Laredo, TX, Employer
__________________________________________

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

Docket No. 15-1607
Issued: November 9, 2015

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 July 21, 2015 appellant filed a timely appeal from a February 20, 2015 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 the case.3

1

The Board notes that, during the pendency of this appeal, OWCP issued a September 17, 2015 decision denying
appellant’s claim for a schedule award. This decision, however, is null and void as the Board and OWCP may not
simultaneously have jurisdiction over the same issue. See 20 C.F.R. § 501.2(c)(3); see also Terry L. Smith, 51
ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E.
Billings, 41 ECAB 880 (1990).
2
3

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. However, the Board cannot consider evidence that was not before
OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met his burden of proof to establish that he is entitled
to a schedule award for his employment-related hearing loss.
FACTUAL HISTORY
On April 23, 2014 appellant, then a 54-year-old supervisory special agent/resident in
charge, filed an occupational disease claim (Form CA-2) alleging that he sustained hearing loss
due to exposure to noise at work and that he first became aware of his condition and realized that
it was caused or aggravated by his employment beginning May 21, 2004. The employing
establishment noted that he last had exposure to conditions alleged to have caused his condition
on March 28, 2014.
By letter dated May 1, 2014, OWCP informed appellant of the type of evidence needed to
support his claim and requested that he submit such evidence within 30 days.
OWCP then received a May 14, 2014 statement from appellant in which he described his
employment history as a drug enforcement agent, his training with side arms and law
enforcement training. Appellant indicated that this entailed exposure to the noise of several
thousands of rounds of weapons fire. He indicated that despite wearing the required double
protection hearing devices he felt that his hearing loss was caused by his prolonged noise
exposure during his mandatory shooting qualifications with his issued firearm.
OWCP also received records pertaining to noise exposure and annual audiograms
obtained through an employing establishment hearing conservation program.
On December 22, 2014 OWCP referred appellant, together with a statement of accepted
facts to Dr. William Carl Smith, a Board-certified otolaryngologist, for a second opinion
evaluation regarding the nature, extent and relationship of appellant’s hearing loss to his federal
employment.
In a January 21, 2015 report, Dr. Smith noted that the purpose of his examination was to
determine if appellant had hearing loss secondary to noise exposure during his federal
employment. He noted reviewing available medical records and examined appellant. Dr. Smith
advised that the external canals of the ears were open and normal, bilaterally; the tympanic
membranes were intact and normal, bilaterally; and the mastoids were normal, bilaterally. He
noted that audiometric testing was performed on his behalf on that date. Dr. Smith advised that
tympanograms and reflexes were normal and in excess of what would be normally predicated on
the basis of presbycusis. He determined that the workplace exposure was of sufficient intensity
and duration to have caused the bilateral sensorineural hearing loss. Dr. Smith diagnosed
bilateral high-frequency sensorineural hearing loss which was due to appellant’s noise exposure
in the course of his federal employment. He recommended a trial of hearing aids. Dr. Smith

2

attached a copy of the January 21, 2015 audiogram and a certificate of acoustic
impedance/admittance meter calibration.4
On February 12, 2015 an OWCP medical adviser reviewed the otologic and audiologic
testing performed on appellant by Dr. Smith and applied OWCP’s standardized procedures to his
evaluation.
He determined that maximum medical improvement was achieved on
January 21, 2015. The medical adviser noted the pure tone audiometry of January 21, 2015 was
used as it was the most recent and met all of OWCP’s standards. He explained that the noise
exposure on the job was deemed sufficient to implicate it as a contributing factor to appellant’s
hearing loss. The medical adviser utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides) and determined that
appellant had zero percent hearing loss. He also recommended authorizing hearing aids.
By decision dated February 20, 2015, OWCP accepted appellant’s claim for hearing loss
due to his employment-related hearing exposure. However, it determined that his hearing loss
was not severe enough to be considered ratable and determined that he was not entitled to
schedule award compensation for hearing loss. OWCP further determined that the medical
evidence established that appellant was entitled to medical benefits for the effects of his injury
and that he would benefit from hearing aids, if recommended by his physician.
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
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cps second, the losses at
each frequency are added up and averaged. Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.8 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
4

Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per second (cps) revealed
decibel losses of 15, 15, 15, and 50 respectively. Testing for the left ear at the frequency levels of 500, 1,000, 2,000,
and 3,000 cps revealed decibel losses of 20, 15, 15, and 45 respectively.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id

8

See A.M.A., Guides 250.

3

determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five and then added to the greater loss and the total is divided by six to arrive at
the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.9
ANALYSIS
The Board finds that the evidence of record is insufficient to establish that appellant is
entitled to a schedule award for his employment-related hearing loss.
On February 12, 2015 an OWCP medical adviser reviewed the otologic and audiologic
testing performed on appellant by Dr. Smith, a Board-certified otolaryngologist, and properly
applied OWCP’s standardized procedures to this evaluation. Testing for the right ear at the
frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed decibel losses of 15, 15, 15, and 50
respectively. These decibel losses were totaled at 95 decibels and were divided by 4 to obtain
the average hearing loss of 23.75 decibels. This average loss was then reduced by 25 decibels
(25 decibels being discounted as discussed above) to equal a negative figure. Testing for the left
ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cps revealed decibel losses of 20, 15,
15, and 45 respectively. These decibel losses total 95 decibels and when divided by 4 result in
an average hearing loss of 23.75 decibels. This average loss when reduced by 25 decibels (25
decibels being discounted as discussed above) equals a negative figure. The medical adviser
properly concluded that the calculations showed that appellant did not have a ratable hearing loss
under the relevant standards of the A.M.A., Guides.
Because these averages are below the fence of 25 decibels, appellant is deemed to have
no impairment in his ability to hear everyday sounds under everyday listening conditions.10 This
does not mean that he has no hearing loss. It means that the extent or degree of loss is not
sufficient to show a practical impairment in hearing according to the A.M.A., Guides. The
A.M.A., Guides set a threshold for impairment and appellant’s occupational hearing loss did not
cross that threshold. Thus the OWCP medical adviser applied the proper standards to the
January 21, 2015 audiogram. Appellant’s hearing loss was not ratable. For this reason, the
Board finds that OWCP properly denied a schedule award for his nonratable hearing loss.
The Board finds that there is no current medical evidence of record supporting that
appellant has a ratable hearing loss under OWCP’s standardized procedures for rating hearing
impairment.
Appellant may request a 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.

9

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichetenberger, 52 ECAB 462 (2001).

10

See L.F., Docket No. 10-2115 (issued June 3, 2011).

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he is
entitled to a schedule award for his employment-related hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2015
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

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Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-439
Issued: December 29, 2009

Case Submitted on the Record

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

JURISDICTION
On December 1, 2008 appellant, through her attorney, filed a timely appeal from a
February 8, 2008 merit decision of the Office of Workers’ Compensation Programs and a
September 3, 2008 decision denying her emotional condition claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
in the performance of duty.
FACTUAL HISTORY
On August 13, 2007 appellant, then a 53-year-old sales manager, filed an occupational
disease claim alleging that she sustained stress due to a lack of support from management and
her reassignment to another position. She stopped work on July 23, 2007 and did not return.
Appellant’s supervisor indicated that the first date of appellant’s new assignment was
July 23, 2007.

In a statement accompanying her claim, appellant related that she had worked without
incident at the employing establishment for almost 30 years. She maintained that over the prior
three years, and in particular the last six to twelve months, she had performance issues with her
employees. Appellant requested but did not receive support from her managers. Christine
Nagasaka, her supervisor, criticized her expectations of her staff which made it difficult to get
her work completed. On April 6, 2007 appellant sent Ms. Nagasaka a memorandum requesting
specific resources. Ms. Nagasaka met with appellant on April 13, 2007 and informed her that
several of her employees had filed a claim of a hostile work environment. On April 13, 2007
appellant was temporarily removed from her position for what she was told to be two weeks but
instead took seven. She related, “None of the charges against me were upheld, which I had
anticipated, but what happened next was a shock. My boss removed me from my position.”
In an April 6, 2007 e-mail message to Ms. Nagasaka, appellant requested support in
approving wireless connections for her subordinates for work after hours, a new computer for
one employee and a female mentor for one employee. She stated, “[The employee’s] direct
access to my manager causes difficulties in our relationship, because your management style in
[s]ales is not the same as mine. As long as my employee can call my boss when things are [not]
to her satisfaction, my ability to maintain a certain expectation is compromised.”
The employing establishment submitted statements from appellant’s coworkers regarding
an investigation into charges that she created a hostile work environment. The employing
establishment noted that the investigation took longer then expected due to the number of people
interviewed.
By letter dated July 6, 2007, Ms. Nagaska informed appellant that she was being laterally
reassigned to the position of sales specialist at the same grade and pay as her current position
effective July 21, 2007. A letter from the employing establishment dated October 6, 2004
provided that involuntary transfers should not be used for arbitrary or punitive reasons but
instead for operational needs or for development or training purposes.
The record contains numerous e-mail messages between appellant and her supervisees
and appellant and Ms. Nagaska. Appellant also forwarded messages she received from her
subordinates to her supervisor. In a message dated February 2006, appellant arranged a meeting
with Mary Burkhard, a supervisee, to discuss her work methods. In a long response,
Ms. Burkhard listed numerous items that she felt showed a negative work environment.
Appellant forwarded the message to management. On October 23, 2006 appellant requested that
Ms. Burkhard stop sending unpleasant e-mail messages. In a December 15, 2006 e-mail
message to Ms. Nagaska, she related that Darrell Morrow, a supervisee, became insubordinate
and verbally aggressive. Appellant informed Ms. Nagasaka that she did not believe that
management assisted her in resolving the situation.
In an undated letter received by the Office on September 24, 2007, appellant requested
that the employing establishment upgrade her position. On February 1, 2006 the employing
establishment notified her that an upgrade was not currently approved.

2

On September 21, 2007 appellant submitted numerous letters from former coworkers
complimenting her management style and professionalism.1 In a statement received on
September 24, 2007, appellant’s attorney related that appellant supervised eight employees and
that three of the employees were at her level and pay grade. Ms. Burkhard was president of the
union that represented managers at the employing establishment. She and Mr. Morrow worked
as partners in selling products and managing accounts. In June 2004, an individual sent an
anonymous letter complaining about appellant. Appellant repeatedly asked management for
support in dealing with issues regarding her employees. In August 2006, Ms. Nagaska became
appellant’s supervisor. Ms. Burkhard and Mr. Morrow began to complain to Ms. Nagaska about
appellant. In a meeting, Ms. Nagaska allowed Mr. Morrow to call appellant “a liar, ineffective,
subversive and hypersensitive.” Appellant sent Ms. Nagaska e-mail messages describing his
treatment and her feeling of inadequate support. Mr. Morrow and Ms. Burkhard accused her of
creating a hostile work environment because she took away account assignments in an attempt to
equalize accounts and manage revenues. Ms. Nagaska instructed her to return the former
assignments. On April 13, 2007 appellant was removed from her position because of an
investigation into charges of a hostile work environment. The investigation lasted for 13 weeks
and she did not receive any work to do. The person who managed while appellant was absent
criticized her and requested extensive corrections in a report. The Equal Employment
Opportunity Commission investigation returned no charges but she was removed from her
position. Management ignored appellant’s requests for assistance in dealing with insubordinate
employees.
On November 8, 2007 Ms. Nagaska denied failing to provide appellant with support. She
related that a supervisee of appellant asked for help working with her and that when she spoke
with appellant she “became very agitated and accusatory….” At a meeting with appellant and
the employee both were contentious but agreed to act professionally. A supervisee alleged a
hostile work environment which procedurally required an investigation. The investigation lasted
12 weeks because of the number of interviews. Ms. Nagaska noted that many supervisors
managed people at their grade level due to reductions-in-force. She denied allowing
Mr. Morrow to call appellant names in her presence. Ms. Nagaska spoke with appellant on the
telephone about her requests for support. She indicated that the investigation showed instances
of “verbal abuse and disrespectful conduct.” Ms. Nagaska did not want her to continue as a
manager so she found another position at the same level and pay scale as an alternative to
disciplinary action.
By decision dated February 8, 2008, the Office denied appellant’s claim that she
sustained an emotional condition in the performance of duty. It found that she had not
established any compensable employment factors.
On February 20, 2008 appellant, through her attorney, requested an oral hearing. At the
hearing, held on June 11, 2008, counsel argued that she was reacting to problems carrying out
her assigned duties and error or abuse by the employing establishment. Appellant unsuccessfully
tried to keep those she supervised from receiving performance improvement plans (PIPs). She
described her work duties and noted that she had never received an adverse disciplinary action
1

Appellant also submitted medical evidence in support of her claim.

3

and received very good to excellent performance appraisals. Appellant was involuntarily
transferred laterally to a nonmanagement position for punitive reasons rather than to fulfill an
operational need. The people that she supervised held positions in the manager’s union and
went around her to her supervisors with complaints. Appellant wanted to reorganize her
subordinates and redistribute the workload but was unable to make the changes due to
complaints from her supervisees. She related that she “pleaded with [her] boss” for assistance
because she could no longer manage and do her job in an effective manner. In 2006
management informed appellant that she had to issue a PIP to any employee who had not met
target performance. She objected to issuing PIPs but was overridden by her managers.
Appellant alleged that the employing establishment did not follow the process necessary for
involuntary transfers and noted that the transfers should not be punitive. She related that she was
unable to do her job and make the changes that she wanted because of opposition and lack of
support from her supervisors. Appellant tried to rearrange her workload after vacancies. She
chose not to fill a vacancy and her subordinates claimed that they were overworked. Appellant
could not function as need to do her position. She related:
“I was emotionally at a point where I didn’t know -- I couldn’t make my decisions
without anxious thoughts about, okay, they’re going to complain to my boss, so
what am I going to say about this, but I know that I’ve been asked to do this. I
couldn’t balance the pressure from below with the pressure from above that said
make them happy. It didn’t matter how I tried to get the assistance from above to
understand my decisions. It was just go to the table and talk to them and work it
out and that’s -- it just became insurmountable for me. I couldn’t cope with it.”
On November 1, 2007 an administrative law judge with the Merit Systems Protection
Board (MSPB) found that it lacked jurisdiction over her appeal of her involuntary reassignment.
The judge found that she did not show a reduction in grade or pay, a constructive suitability
determination or allege a “constructive demotion.” In a decision dated April 3, 2008, the MSPB
denied appellant’s petition for review of an initial decision of an administrative law judge after
finding that she did not submit significant new evidence or show an error.
By letter dated June 4, 2008, appellant’s attorney further described the factors of
employment to which appellant attributed her condition. She experienced friction and strain in
dealing with her subordinates and maintained that the employing establishment committed error
and abuse. In a letter dated July 17, 2008, the employing establishment asserted that there was
no evidence of error in the investigation and that appellant received adequate support from
management. The employing establishment further noted that she did not experience problems
performing her work duties and that it was not part of her duties to dispute PIPs directed by
management.
On August 7, 2008 appellant’s attorney provided comments on the July 17, 2008 letter
from the employing establishment. He asserted that “[m]aintaining authority over subordinate
employees is very much in the performance of any manager’s duties.” Counsel also noted that
realigning partnerships and plans to achieve targets were part of her work duties.
By decision dated September 3, 2008, the hearing representative affirmed the February 8,
2008 decision after finding that appellant had not established any compensable work factors.

4

LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.4 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8

2

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

See William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

5

ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of the Act.
Appellant attributed her emotional condition to the failure of her supervisor to support
her management decisions or support her conflicts with her supervisees. Complaints about the
manner in which a supervisor performs her duties or the manner in which a supervisor exercises
her discretion fall, as a rule, outside the scope of coverage provided by the Act.9 This principle
recognizes that a supervisor or manager in general must be allowed to perform her duties and
that employees will, at times, dislike the actions taken. Mere disagreement or dislike of a
supervisory or managerial action will not be compensable, absent evidence of error or abuse.10
Appellant submitted e-mail messages requesting assistance in dealing with her employees and in
obtaining resources for her employees. Ms. Nagasaka, her supervisor, denied failing to support
her and noted that she spoke with her on the telephone about her support requests. Appellant has
not factually established a failure of support by her supervisor or any error or abuse by the
employing establishment; thus, she has not established a compensable work factor.
Appellant maintained that management instructed her to give her employees PIPs. She
opposed the imposition of PIPs but was overridden by her supervisor. Although the assignment
of work duties is generally related to the employment, it is an administrative function of the
employer and not a duty of the employee. An administrative or personnel matter will be
considered to be an employment factor where the evidence discloses error or abuse on the part of
the employing establishment.11 Appellant has not provided any evidence of error or abuse by the
employing establishment in instructing her to give PIPs to her employees. Thus, she has not
established a compensable employment factor.

9

See Judy L. Kahn, 53 ECAB 321 (2002).

10

Id.

11

Lori A. Facey, 55 ECAB 217 (2004).

6

Appellant further attributed her condition to being laterally transferred from a
management position. The Board has held that an employee’s dissatisfaction with being
transferred constitutes frustration from not being permitted to work in a particular environment
or to hold a particular position and, absent evidence of error or abuse, is not compensable.12
Appellant submitted letters from the employing establishment indicating that transfers cannot be
for punitive reasons but instead for operational needs. She filed a complaint with the MSPB
regarding her lateral transfer. The MSPB denied appellant’s claim for lack of jurisdiction after
finding that she did not establish a loss of salary or grade, a constructive suitable determination
and did not allege a constructive demotion. Appellant has not submitted sufficient evidence to
meet her burden of proof to show error or abuse by the employing establishment in transferring
her to a lateral position at no loss of salary or grade.
Regarding her contention that the employing establishment erred in denying appellant’s
request for a promotion, the Board has held that failure to be promoted is not a compensable
factor because the lack of a promotion does not involve an employee’s regular or specially
assigned duties but rather constitutes the employee’s desire to work in a different position. As
such, any reaction to the failure to obtain a promotion is considered self-generated.13
Appellant also noted that she was the subject of an investigation that took a long time and
that she had no work during the course of the investigation. Investigations are considered to be
an administrative function of the employer when they are not related to an employee’s day-today duties or specially assigned duties or to a requirement of the employee’s employment.14 The
employing establishment retains the right to investigate an employee if wrongdoing is suspected
or as part of the evaluation process.15 An employee’s fear of being investigated is not covered
under the Act.16 Appellant has not submitted any evidence that the employing establishment
erred in investigating her based on complaints by her subordinates of a hostile work
environment; consequently, she has not established a compensable work factor.
Appellant also attributed her condition to managing her employees. She asserted that she
sustained stress trying to work out problems with her subordinates. Appellant related that she
became anxious trying to make decisions knowing that her employees would complain to her
supervisor. The Board has held that emotional reactions to situations in which an employee is
trying to meet her or her position requirements are compensable.17 Appellant’s job as a manager
required her to manage those she supervised and make day-to-day decisions in her capacity as
manager. Where a claimed disability results from an employee’s emotional reaction to her
regular or specially assigned duties or to an imposed employment requirement, the disability
12

Robert Breeden, 57 ECAB 622 (2006).

13

See Andrew J. Sheppard, 53 ECAB 170 (2001).

14

Thomas O. Potts, 53 ECAB 353 (2002).

15

Sandra F. Powell, 45 ECAB 877 (1994).

16

Gary M. Carlo, 47 ECAB 299 (1996).

17

Trudy A. Scott, 52 ECAB 309 (2001).

7

comes within the coverage of the Act.18 Therefore, appellant has identified a compensable
employment factor under the Act.
As appellant attributed her emotional condition in part to the performance of her regular
or specially assigned work duties, the case presents a medical question regarding whether his
emotional condition resulted from the compensable employment factors. The Office, therefore,
must base its decision on an analysis of the medical evidence. As the Office found there were no
compensable employment factors, it did not analyze or develop the medical evidence. The case
will be remanded to the Office for this purpose.19 After such further development as deemed
necessary, the Office should issue a de novo decision on this matter.
On appeal appellant’s attorney contends that her subordinates used their position in the
management union to influence upper management. He also asserts that the employing
establishment erred in transferring her in violation of established policy. Counsel also contends
that the Office did not sufficiently consider the evidence of record. As noted, however, appellant
has not factually established that she did not receive support from her supervisor due to influence
by her subordinates or that the employing establishment committed error or abuse in an
administrative matter.
CONCLUSION
The Board finds that the case is not in posture for decision.

18

Robert Bartlett, 51 ECAB 664 (2000); Ernest St. Pierre, 51 ECAB 623 (2000).

19

See Robert Bartlett, supra note 18.

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 3 and February 8, 2008 are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: December 29, 2009
Washington, DC

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

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

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

9