United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 19-0720
Issued: November 21, 2019

Case Submitted on the Record

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

JURISDICTION
On February 15, 2019 appellant filed a timely appeal from an August 30, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 21, 2010 appellant, then a 49-year-old air traffic control specialist, filed a
traumatic injury claim (Form CA-1) alleging that on March 21, 2010 he developed severe
emotional anxiety due to a fear of death for the flying public while in the performance of duty. He
further alleged that the emotional anxiety prevented him from working. Appellant attributed his
emotional condition to watching an employing establishment-directed video, “Heads UP -- Safety
Depends on You” (Heads UP), which involved graphic violence and death.
In a May 13, 2010 development letter, OWCP requested that appellant provide additional
factual and medical evidence in support of his emotional condition claim. By separate letter of
even date, it also requested additional information from the employing establishment concerning
appellant’s allegations. Both parties were afforded 30 days to respond.
In a May 28, 2010 letter, the employing establishment noted that appellant had advised
management that subsequent to viewing a mandatory training video on aircraft accidents he began
to experience difficulty performing his duties. Appellant requested that a supervisor monitor him
after watching the video to ensure that he was not compromising safety. Due to his emotional
condition he was restricted from performing air traffic control duties and the regional flight
surgeon determined that he was medically incapacitated and could not perform air traffic control
duties.
In a June 8, 2010 statement, appellant noted that, after May 21, 2010, he felt continually
nervous and eventually experienced anxiety attacks. He noted that he could not get the quivering
voice he heard on the Heads UP video out of his mind.
Dr. Thomas Keapu, a licensed clinical psychologist, examined appellant and diagnosed
acute stress disorder. He noted that appellant was attending a mandatory training meeting at which
he saw a video of two airplanes colliding. Dr. Keapu reported that appellant experienced the
graphic reality of the controller “quivering their voice in fear.” He opined that this experience
triggered an anxiety reaction to the general work environment. Dr. Keapu diagnosed
occupational/career stress in reaction to the traumatic training experience and subsequent loss of
full duties at work.
The employing establishment provided additional information. It explained that appellant
stopped performing safety-related duties beginning on April 10, 2010 and stopped work entirely
on April 11, 2010. Appellant returned to work on June 7, 2010 performing administrative duties.
The employing establishment described the video which appellant viewed on March 3, 2010 as
depicting specific air traffic events. In one event, a small aircraft almost collided with a departing
jet. The audio indicated a very high level of stress in the controller’s voice when he recognized
what he had done. In another event was a small aircraft that flew into a weather system and
2

Docket No. 17-1215 (issued January 10, 2018).

2

crashed, killing the pilot. Another event involved two aircrafts that collided, killing five people.
One of the airplanes barely missed a high rise building, but did hit a house. Finally, the video also
included a helicopter and airplane colliding as well as aerial footage of aircraft crash sites. The
conclusion of the video was the phrase “Stay out of court, stay out of the headlines.”
The employing establishment further explained that the Heads UP video was mandatory at
the time it was viewed by appellant on March 3, 2010. It further noted that sometime after
March 3, 2010 the video was revised. Controllers were not required to see the revised video if
they had seen the original. Appellant was advised that the video was about safety issues and that
it had originally been shown to managers. The employing establishment noted that appellant had
not previously seen the video and that he had been employed since 1984. It reported showing
other videos about safety and aircraft accidents from time to time, but noted that determining how
similar the prior videos were to the Heads UP video was difficult to assess.
By decision dated August 13, 2010, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish that the March 21, 2010 event
occurred, as alleged.
On June 21, 2011 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. By decision dated July 14, 2011, the hearing representative
denied appellant’s request for a hearing, finding that it was untimely filed. It exercised its
discretion, and determined that the issue in the case could be addressed through the reconsideration
process.
On August 8, 2011 appellant requested reconsideration of the August 13, 2010 decision.
In a July 8, 2011 report Dr. C. Alec Pollard, a licensed clinical psychologist, diagnosed
post-traumatic stress disorder (PTSD) as a result of watching the Heads UP video at work on
March 3, 2010. A July 15, 2011 note from Dr. Geeta K. Aatre-Prashar, a licensed clinical
psychologist, diagnosed PTSD as a result of viewing a video at work on March 3, 2010.
By decision dated October 6, 2011, OWCP reviewed the merits of appellant’s claim and
determined that he had established that the claimed event of viewing the Heads UP video had
occurred. However, it denied his claim finding that viewing the video was not considered a
compensable factor of employment. OWCP found that directing appellant to watch the video was
an administrative function of the employing establishment and he had not met his burden of proof
to establish error or abuse by the employing establishment.
Appellant provided additional information to OWCP on October 12, 2011. He alleged that
he received no warning regarding the content of the Heads UP video. Appellant further noted that
he was previously involved in a fatal aviation accident when, on October 13, 1987, a plane that he
was controlling developed smoke in the cockpit and crashed.
On October 1, 2012 appellant, through counsel, requested reconsideration. In support of
this request, appellant provided his June 3, 2012 application for retirement. Counsel contended
that watching the Heads UP video occurred while appellant was in the performance of duty as part
of proficiency training and should be considered a compensable factor of employment. He further
contended that, in the alternative, even if appellant’s injury occurred as a result of an administrative
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function of his employing establishment, the employing establishment acted unreasonably and
negligently in showing the video without warning because appellant had previously witnessed a
fatal air accident.
By decision dated December 26, 2012, OWCP denied modification of its October 6, 2011
decision.
On December 16, 2013 appellant requested reconsideration of the December 26, 2012
decision and provided additional factual information.
By decision dated November 14, 2014, OWCP denied modification of its prior decision.
On November 6, 2015 appellant requested reconsideration of the November 14, 2014 decision.
In a report dated October 16, 2015 Dr. Larry Shapiro, a licensed clinical psychologist,
diagnosed PTSD and opined that appellant had developed this condition as a direct response to
exposure to the work-related training video.
By decision dated November 18, 2016, OWCP denied appellant’s request for
reconsideration of the merits of his claim. It found that he failed to submit relevant and pertinent
new evidence or argument in support of his November 3, 2015 request for reconsideration.
On May 12, 2017 appellant appealed OWCP’s November 18, 2016 decision to the Board.
By decision dated January 10, 2018, the Board remanded the case, ordering OWCP to conduct a
merit review and issue an appropriate merit decision.
In a May 18, 2018 development letter, OWCP asked appellant a series of questions
regarding the Heads UP video and his reaction to the fatality accident on October 13, 1987. It
specifically queried whether he was restricted from watching videos such as Heads UP and
whether he advised the employing establishment of these restrictions. In a separate letter of even
date, OWCP requested additional information from the employing establishment regarding the
Heads UP video.
On July 6, 2018 appellant responded to the May 18, 2018 development letter and denied
receiving restrictions following the October 13, 1987 employment incident. The employing
establishment did not respond.
By decision dated August 30, 2018, OWCP denied appellant’s emotional condition claim,
finding that he had not met his burden of proof to establish a compensable employment factor as
he was contending that the employing establishment required him to watch the video without due
diligence of a warning given his personal history of involvement in an air traffic fatality in 1987.
It further found that the showing of the video, without a warning to employees previously involved
in an air traffic fatality, had not occurred within the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
4

time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 In the case of Cutler,8 the Board explained that
there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the concept or coverage
under FECA.9 When an employee experiences emotional stress in carrying out his or her
employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury arising
out of and in the course of employment.10 On the other hand, when an injury or illness results
from an employee’s feelings of job insecurity per se, fear of a reduction-in-force, his or her
frustration from not being permitted to work in a particular environment unhappiness with doing
work, or frustration in not given the work desired or to hold a particular position, such injury or
illness falls outside FECA’s coverage because they are found not to have arisen out of
employment.11
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
7

T.L., Docket No. 18-0100 (issued June 20, 2019): L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).
8

28 ECAB 125 (1976).

9

Supra note 6; A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

10

Supra note 8; O.P., Docket No. 19-0445 (issued July 24, 2019) Trudy A. Scott, 52 ECAB 309 (2001).

11

B.S., Docket No. 19-0378 (issued July 10, 2019); William E. Seare, 47 ECAB 663 (1996).

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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 compensable factors of
employment and may not be considered.12 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. If a
compensable factor of employment is substantiated, OWCP must base its decision on an analysis
of the medical evidence which has been submitted.13
ANALYSIS
The Board finds that this case not in posture for a decision.
Appellant alleged that he sustained an emotional condition as a result of being required to
view the Heads UP training video at work on March 3, 2010. The record establishes that he
completed the mandatory training which included images of graphic violence and death. The
Board has long held that emotional reactions to situations in which an employee is trying to meet
his regularly or specially assigned position requirements are compensable. The Board therefore
finds that appellant has established a compensable employment factor under Cutler.14
As the Board finds that appellant established a compensable employment factor, the case
must be remanded for consideration of the medical evidence as to whether appellant has met his
burden of proof to establish that his emotional condition is causally related to the compensable
employment factor. After such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

12

B.S., id.; Dennis J. Balogh, 52 ECAB 232 (2001).

13

S.K., supra note 6; Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: November 21, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bay Shore, NY, Employer
__________________________________________

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

Docket No. 10-783
Issued: December 21, 2010

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 January 29, 2010 appellant filed a timely appeal of a September 30, 2009 decision of
the Office of Workers’ Compensation Programs affirming the denial of her claim for
compensation and a December 29, 2009 decision denying her request for reconsideration without
further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an occupational disease in the performance of duty and (2) whether the Office properly
denied appellant’s request for reconsideration without a merit review.
FACTUAL HISTORY
On March 4, 2009 appellant, then a 53-year-old letter carrier, filed a claim for a
recurrence of disability beginning February 26, 2009 due to prolonged pushing, pulling and

lifting that worsened her pain. She indicated that the original date of injury was July 1, 2008.
Appellant stopped work on February 6, 2009 and returned to light duty on February 26, 2009.1
In a March 6, 2009 statement, appellant indicated that her condition was due to daily
duties as a letter carrier that required constant lifting, pulling and pushing. On January 21, 2009
she lifted a heavy parcel resulting in pain to her neck, shoulder and upper back. Appellant noted
that all of her claimed conditions were due to injuries sustained on July 1, 2008.2 They were
worsened by her daily duties as a letter carrier for eight hours a day. Appellant denied stating
that her January 21, 2009 injury was due to a vehicle backing into her as it was due to lifting a
heavy parcel that day. She also indicated that on February 26, 2009 she told her supervisor that
she could not work because she was in too much pain. Appellant noted that her supervisor
subsequently informed her there was no work within her work restrictions.
In a March 3, 2009 report, Dr. Timothy Mosomillo, an osteopath and physiatrist, advised
that appellant injured her right shoulder while working on July 1, 2008. He noted her complaint
of right shoulder pain. Dr. Mosomillo found that appellant’s symptoms were consistent with
shoulder strain/sprain, shoulder derangement, rotator cuff syndrome and muscle spasm.
On March 25, 2009 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit additional evidence.
In a March 30, 2009 statement, appellant reiterated that her injuries resulted from her
daily duties as a letter carrier, including constant lifting, pulling and pushing.
In a February 13, 2009 arthrogram of appellant’s right shoulder, Dr. Pradeep Albert, a
Board-certified diagnostic radiologist, found SLAP tear extending to the region of the
biceps/labral anchor and edema extending to the glenohumeral ligament. He also noted under
surface tearing of the supraspinatus tendon without evidence of full thickness of a rotator cuff
tear.
In a May 28, 2009 decision, the Office denied appellant’s claim finding the medical
evidence failed to establish that the claimed medical conditions were causally related to the
established employment activities.
In reports dated April 28, 2009, Dr. Peter Green, a Board-certified orthopedic surgeon,
noted appellant’s complaint of right shoulder pain. Appellant reported a history of a work injury
to the right shoulder on July 1, 2008. Dr. Green diagnosed right shoulder SLAP tear,
acromioclavicular joint arthritis, subacromial impingement and glenohumeral and subacromial
1

On March 16, 2009 the Office notified appellant that the information she submitted did not demonstrate that she
experienced a recurrence of disability as she described work duties that aggravated her condition. It indicated that
her claim would be treated as a new occupational disease claim, in which she first realized that her claimed
condition was caused or aggravated by her employment activities on February 26, 2009.
2

Appellant filed a traumatic injury claim for a July 1, 2008 work incident, file number xxxxxx604 that was
accepted for right shoulder impingement and surgery. She subsequently filed an occupational disease claim
beginning January 21, 2009, file number xxxxxx608, that was accepted for right shoulder superior labral tear from
anterior to posterior (SLAP tear). Neither claim is presently before the Board.

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synovitis. He performed right shoulder arthroscopy, arthroscopy SLAP repair, glenohumeral and
subacromial synovectomy with labrum debridement, subacromial decompression and
arthroscopic mumford procedure. On April 28, 2009.
On June 19, 2009 appellant requested a review of the written record. She submitted a
July 28, 2008 report, Dr. Green who saw her for the first time and indicated that she was working
as a mail carrier on July 1, 2008 while walking past a driveway when a minivan struck her in the
right shoulder and arm. Dr. Green diagnosed right shoulder impingement syndrome with
myalgia. He opined that, “if the foregoing history is accurate, causal relationship existed
between the patient’s current complaints and the history of injury.” On August 25, 2008
Dr. Green noted treating appellant for right shoulder impingement syndrome that was work
related. He noted her complaint of pain in the right aspect of the neck, paresthesias in the right
first and second digits and mild weakness in grip of the right hand that was not present prior to
the work injury. Cervical spine x-rays taken that day showed decreased disc space at C5-6 and
anterior spurring at C5-6 and C6-7. Dr. Green diagnosed right shoulder impingement syndrome,
cervical strain and possible degenerative disc disease. He reiterated that, if the history provided
was accurate, causal relationship existed between appellant’s neck complaints and her work. On
September 22, 2008 Dr. Green diagnosed right shoulder impingement syndrome and noted that
she had avoided using the push cart for mail delivery to help prevent cervical and right shoulder
symptoms. Subsequent reports addressed appellant’s ongoing symptoms.
In a May 4, 2009 attending physician’s report, Dr. Green noted the date of injury as
July 1, 2008 when a minivan struck appellant. He diagnosed right shoulder impingement
syndrome, cervical strain with myalgia and cervical spurring. Dr. Green checked a box “yes”
indicating that appellant’s conditions were caused or aggravated by her employment activities.
In a September 30, 2009 decision, an Office hearing representative affirmed the May 28,
2009 decision. The Office accepted that appellant’s job duties required significant lifting,
pushing and pulling. The hearing representative found, however, no medical evidence providing
a diagnosis of a medical condition connected to the established employment exposure. Instead,
she noted that the medical evidence provided a history of the July 1, 2008 work injury, that was
the subject of another claim, without any history of the identified employment exposure, that was
the subject of the instant claim.
On October 9, 2009 appellant requested reconsideration. She noted that her injury
resulted from her daily duties of constant lifting, pulling and pushing as a letter carrier for 40
hours a week for 8 hours a day. Appellant indicated first noticing her condition on July 1, 2008
and that the pain became continuous to her shoulder, neck and upper back. She reiterated that
constant moving, lifting and pushing as a letter carrier aggravated her condition. In a
December 11, 2009 statement, appellant noted she was enclosing a letter from her surgeon
hoping this would satisfy the requirement to establish fact of injury.
In a November 2, 2009 report, Dr. Green saw appellant in connection to a July 1, 2008
injury to her right shoulder that occurred when a driver backed a minivan into her and struck her
in the right shoulder and arm. He noted that she ultimately was found to have a labral tear of the
shoulder that was surgically treated. Dr. Green stated there was no evidence at any time of an
occupational disease. In a December 7, 2009 duty status report, he advised that appellant was

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able to resume work with restrictions for a July 1, 2008 work injury. Dr. Green diagnosed right
shoulder SLAP lesion and right elbow bursitis. He checked a box “yes” indicating that
appellant’s condition was caused or aggravated by her employment activity.
In a December 29, 2009 decision, the Office denied appellant’s request for
reconsideration finding that she did not submit any new and relevant evidence or raise any
substantive legal questions.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act 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. 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
ANALYSIS -- ISSUE 1
The record establishes that appellant’s duties as a letter carrier required significant lifting,
pulling and pushing. She claimed that this caused her neck, shoulder and upper back condition.
However, the medical evidence is insufficient to establish that appellant sustained injuries
causally related to these factors of her employment.
3

J.E., 59 ECAB 119 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

4

D.I., 59 ECAB 158 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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Dr. Mosomillo’s March 2, 2009 report indicated that appellant’s right shoulder condition
was sustained at work on July 1, 2008. However, the Office adjudicated the present claim as one
for an occupational disease, as appellant attributed her symptoms to prolonged pushing, pulling
and lifting in early 2009. As Dr. Mosomillo did not provide an accurate history relevant to this
claim or attribute any diagnosed medical condition to work factors in early 2009, his opinion is
insufficient to establish appellant’s claim.6
Similarly, Dr. Green submitted reports dated July 28, 2008 to May 4, 2009. He supported
that appellant sustained right shoulder and neck injuries due to a July 1, 2008 work-related
incident. Dr. Green did not relate appellant’s condition to lifting, pulling and pushing at work in
early 2009 nor did he explain how such employment activities would cause or aggravate a
diagnosed condition. Although his September 22, 2008 report noted that she avoided pushing a
cart to deliver mail, this predated the period in which she indicated that her claimed condition
began and he also indicated that the restrictions were to prevent her preexisting cervical and right
shoulder symptoms. Dr. Green did not specifically address whether such activities caused or
aggravated a diagnosed medical condition.7
No other medical evidence of record supports that appellant’s condition to lifting, pulling
and pushing at work in early 2009 caused or aggravated a diagnosed medical condition.
For these reasons, appellant has not established that she sustained an occupational disease
in the performance of duty.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.8 Section 10.608(b) of Office
regulations provides that when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.9

6

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).
7

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
8

D.K., 59 ECAB 141 (2007).

9

K.H., 59 ECAB 495 (2008).

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ANALYSIS -- ISSUE 2
Appellant’s reconsideration request reiterated that her daily duties required constant
lifting, pulling and pushing as a letter carrier for 40 hours a week for 8 hours a day. However,
these statements do not satisfy the criteria necessary to reopen a case for merit review as they do
not show that the Office erroneously applied a specific point of law and they do not advance any
new legal arguments. The Board notes that appellant’s work duties were not in dispute and were
not the basis of the Office’s previous denial of her claim.
Although Dr. Green’s reports dated November 2 and December 7, 2009 constitute new
evidence, they are not relevant as they pertain to appellant’s July 1, 2008 work injury that is the
subject of a separate claim and do not address the underlying issue in the present claim regarding
whether she sustained an occupational disease beginning in early 2009. The Board has held that
evidence that does not address the pertinent issue in a claim does not warrant a reopening of the
case for a merit review.10 The reports from Dr. Green are also generally repetitive of his reports
previously of record with regards to the cause of appellant’s condition.11
The record also contains Dr. Albert’s February 13, 2009 arthrogram report and
Dr. Green’s reports dated between July 28, 2008 and February 23, 2009. As appellant previously
submitted these documents to the record and they were considered in the Office’s September 30,
2009 decision, they are duplicative and do not constitute a basis for reopening a case.12
On appeal, appellant asserts that her claim was not accepted because she attempted to
work on two occasions when her pain worsened and her supervisor informed her there was no
work based on her restrictions. As explained, her claim was denied because she did not submit
sufficient medical evidence explaining how her work activities in early 2009 caused or
aggravated a diagnosed medical condition.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an occupational disease in the performance of duty. The Board also finds that the
Office properly denied her request for reconsideration without a merit review.

10

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (where the Board held that new evidence
submitted upon a reconsideration request that does not address the pertinent issue is not relevant evidence).
11

See D.K., supra note 8 (evidence that repeats or duplicates evidence already in the case record does not
constitute a basis for reopening a case).
12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the December 29 and September 30, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 21, 2010
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
__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Springfield, MA, Employer
__________________________________________

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

Docket No. 10-1887
Issued: May 18, 2011

Case Submitted on the Record

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

JURISDICTION
On July 13, 2010 appellant filed a timely appeal from the February 18, 2010 merit
decision of the Office of Workers’ Compensation Programs concerning an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $3,090.41 overpayment of
compensation; (2) whether the Office abused its discretion by refusing to waive recovery of the
overpayment; and (3) whether the Office properly required repayment of the overpayment by
deducting $500.00 from appellant’s compensation payments every four weeks.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on December 15, 1993 appellant, then a 49-year-old mechanic,
sustained a torn left anterior cruciate ligament, osteoarthritis of his left leg and chondromalacia
of his left patella due to stepping between two sacks of mailbags on a loading dock and falling
down between the loading dock and the platform. Appellant underwent left knee surgery which
was authorized by the Office.
After the December 15, 1993 injury, appellant worked in a modified job for several years.
He filed a claim for a recurrence of disability on January 1, 2006 that was approved by the
Office. Appellant was totally disabled for work from December 11, 2006 to January 9, 2007 and
June 25 to October 5, 2007. He received compensation for temporary total disability based on a
recurrent pay rate for time missed from work during both of these periods.
In a March 30, 2009 letter, the Office advised appellant of its preliminary determination
that he received a $3,090.41 overpayment of compensation because he was paid at an incorrect
pay rate between December 11, 2006 and October 5, 2007. Because appellant had not returned
to full-time regular work for six months or more before the recurrence occurred, he should not
have been paid compensation based on the date of the recurrence. The Office also made a
preliminary determination that he was not at fault in creating the overpayment. In an attached
memorandum, the Office explained how the overpayment was calculated:
“Compensation pay rate was $583.11 a week, which included night differential
pay at $41.36 a week and Sunday premium pay at $25.75 a week. The total
weekly pay rate paid at 75 percent was $437.33.
“The total due from December 11, 2006 through January 9, 2007, 22 days, was
$2,516.80 gross -- $264.01 for health benefits -- $8.08 for basic life and -- $65.00
for optional life -- a net of $2,179.71.
“The amount actually paid out was based on an incorrect pay rate of $1,068.05.
75 percent was $801.04 a week. The incorrect payment made was from
December 11, 2006 through January 9, 2007, 20 days, for a gross of $3,204.14 -$158.02 for health benefits -- $14.76 for basic life and -- $118.49 for optional life
for a net of $2,912.87.
“Overpayment from December 11, 2006 through January 9, 2007 was therefore
calculated as $2,912.87 -- $2,179.71 = $733.16.
“The overpayment made from June 25 through July 9, 2007 was also made based
on an incorrect pay rate. The weekly pay rate that should have been used was 75
percent of $583.11 as above. The total due from June 25 through October 5,
2007, for 103 days, was a gross of $6,435.04 -- $746.24 for health -- $32.00 for
basic life -- $257.50 for optional life = a net payment due of $5,399.30.
“The incorrect pay rate used was $617.49 from June 25 through October 5, 2007
for a total of 103 days. Compensation paid in error from June 25 through
October 5, 2007, 103 days, based on a pay rate of $617.49 was a gross of
2

$9,130.22 -- $1,173.83 for health benefits -- $34.21 for basic life -- $275.16 = a
net payment of $7,756.55. The overpayment made from June 25 through
October 5, 2007 was therefore $7,756.55 -- $5,399.30 = 2,357.25.
“Total overpayment from December 11, 2006 through January 9, 2007, and
June 25 through October 5, 2007 was $733.16 + $2,357.25 = $3,090.41.”2
Appellant requested a prerecoupment hearing with an Office hearing representative
regarding the fact, amount and waiver issues of the overpayment. At the September 30, 2009
hearing, he argued that he was not overpaid because he was entitled to a recurrent pay rate.
Appellant alleged that the two compensation periods in question were the result of back-to-back
knee surgeries and that his salary had increased since the initial injury and again increased
between the two surgeries. He argued that he should have been entitled to a recurrent pay rate
because he had returned to his regular job following his injury. Appellant’s only restriction was
to not climb ladders, but his supervisor gave him plenty of work to do that did not require
climbing. The work that he performed was his regular work, i.e., doing repairs around the
employing establishment premises. Appellant indicated that climbing a ladder was something
that had caused his recurrence and he could not perform this task. He noted that it had been 15
years since his initial injury and his salary had increased significantly, so a higher pay rate
should have been used to pay compensation during the periods in question. Appellant indicated
that he would have financial difficulty repaying the overpayment because he was trying to be
frugal in that his wife was on social security disability, job layoffs were possible at the
employing establishment and he had to make repairs on his house. He testified that, based on the
criteria described to him, his assets were too great and exceeded the $8,000.00 threshold (for
appellant and his spouse) necessary for qualification of a waiver on financial hardship grounds.3
In a February 18, 2010 decision, the Office determined that appellant received a
$3,090.41 overpayment of compensation. It found that he was not at fault in the creation of the
overpayment but that the overpayment was not subject to waiver. The Office required
repayment of the overpayment by deducting $500.00 from appellant’s compensation payments
every four weeks.

2

The Office advised appellant that he could submit evidence challenging the fact, amount, or finding of fault and
request waiver of the overpayment. It informed him that he could submit additional evidence in writing or at
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of the date of the written
notice of overpayment. The Office requested that appellant complete and return an enclosed financial information
questionnaire within 30 days even if he was not requesting waiver of the overpayment.
3

Appellant reported household income and expenses on an overpayment questionnaire dated May 22, 2009 which
indicated that he is left with $919.83 per month after paying necessary living expenses.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act4 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.5 Section 8129(a) of the Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”6
Section 8105(a) of the Act provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”7 Section 8101(4) of
the Act defines “monthly pay” for purposes of computing compensation benefits as follows:
“[T]he monthly pay at the time of injury, or the monthly pay at the time disability begins, or the
monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater....”8
The Board has defined “regular” employment, stating that it means “established and not
fictitious, odd-lot or sheltered;”9 and contrasting it with a job “that was created especially for
him.”10 The Board has also indicated that the duties of “regular” employment are covered by a

4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three fourths
of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b). The word
“disability” is used in several sections of the Act. With the exception of certain sections where the statutory context
or the legislative history clearly shows that a different meaning was intended, the word as used in the Act means
“Incapacity because of injury in employment to earn wages which the employee was receiving at the time of such
injury.” This meaning, for brevity, is expressed as “disability for work. See Charles P. Mulholland, Jr., 48 ECAB
604, 606 (1997).
8

5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623,
626 (2002). The Board has held that, if an employee has one recurrence of disability which meets the requirements
of 8101(4), any subsequent recurrence would also meet such requirements and would entitle the employee to a new
recurrence pay rate. Carolyn E. Sellers, 50 ECAB 393 (1999).
9

Johnny A. Muro, 17 ECAB 537 (1966).

10

Ralph W. Moody, 42 ECAB 364 (1991).

4

specific job classification,11 and that another employee would have performed such duties if the
claimant did not perform them.12
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $3,090.41 overpayment of compensation. The
evidence of record clearly supports that he was not entitled to a recurrent pay rate for the periods
December 11, 2006 to January 9, 2007 and June 25 to October 5, 2007. Before the Office and on
appeal to the Board, appellant argued that he was entitled to a recurrent pay rate, as he had
returned to regular employment following his injury, prior to again stopping work for
intermittent periods between December 11, 2006 and October 5, 2007. The evidence of record is
insufficient to support his argument that he returned to full-time regular work following his
injury, or that he would be entitled to a recurrent pay rate.
After his December 15, 1993 work injury, appellant first stopped work on March 3, 1994.
He received compensation based on his pay rate in effect on that date based on temporary total
disability until he returned to full-time modified employment and his compensation payments
ceased as a result. Compensation pay rate was calculated based on information supplied by the
employing establishment regarding appellant’s salary at the time he first stopped work: $583.11
a week, which included night differential pay at $41.36 a week and Sunday premium pay at
$25.75 a week. Appellant worked full time in a modified position until he stopped work on
December 11, 2006 due to approved surgery. The claim for recurrence was accepted and he
received compensation based on temporary total disability for the periods December 11, 2006 to
January 9, 2007 and June 25 to October 5, 2007.
The determinative question for purposes of appellant’s pay rate for a recurrence is
whether he returned to “regular” employment following his initial disability on March 3, 1994.
The Board has defined “regular” employment, stating that it means “established and not
fictitious, odd-lot or sheltered” and contrasting it with a job “that was created especially for
him.”13 In the present case, appellant did not return to “regular” employment following his
initial disability on March 3, 1994. The evidence establishes that he worked limited duty in a
modified job tailored to be in accordance with his work restrictions. There is no evidence of
record to support that appellant ever returned to his regular, full-duty position following his
initial disability in 1994.14 The evidence of record supports that he worked in a modified job
following his disability in 1994. Based on wage-loss compensation paid at a recurrent pay rate,
appellant received $3,090.41 more in compensation than he was entitled to receive at the
nonrecurrent pay rate. The Office properly determined that he received a $3,090.41
overpayment.

11

Wilbur L. Hargrove, 34 ECAB 1143 (1983).

12

Eltore Chinchillo, 18 ECAB 647 (1967).

13

See supra notes 8 and 9.

14

Appellant did not perform the full scope of duties of his preinjury position.

5

LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.15 These statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”16 If the Office finds a claimant
to be without fault in the matter of an overpayment, then, in accordance with section 8129(b), the
Office may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.17 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.18 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.19
ANALYSIS -- ISSUE 2
Appellant has not established that recovery of the overpayment would defeat the purpose
of the Act because he has not shown both that he needs substantially all of his current income to
meet ordinary and necessary living expenses and that his assets do not exceed the allowable
resource base.
At the hearing before the Office hearing representative, appellant testified that he had
assets in excess of the $8,000.00 threshold (for appellant and his spouse), and the evidence
15

See Robert Atchison, 41 ECAB 83, 87 (1989).

16

5 U.S.C. § 8129(b).

17

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). Office procedure provides that assets must not exceed a resource base of $4,800.00
for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004).
18

20 C.F.R. § 10.437(a), (b).

19

Id. at § 10.437(b)(1).

6

supports that he would therefore be disqualified for consideration of a waiver. Because appellant
has not met the second prong of the two-prong test of whether recovery of the overpayment
would defeat the purpose of the Act, it is not necessary for the Office to consider the first prong
of the test, i.e., whether he is deemed to need substantially all of his monthly income to meet
current and ordinary living expenses.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because he has not shown, for the reasons noted above, that he
would experience severe financial hardship in attempting to repay the debt or that he
relinquished a valuable right or changed his position for the worse in reliance on the payment
which created the overpayment.20
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of the Act or be against equity and good conscience, he has failed to show that the
Office abused its discretion by refusing to waive the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.”21
ANALYSIS -- ISSUE 3
The record supports that, in requiring repayment of the overpayment by deducting
$500.00 from appellant’s compensation payments every four weeks, the Office took into
consideration the financial information submitted by him as well as the factors set forth in
section 10.441. It found that this method of recovery would minimize any resulting hardship on
him. Therefore, the Office properly required repayment of the overpayment by deducting
$500.00 from appellant’s compensation payments every four weeks.22

20

See William J. Murphy, 41 ECAB 569, 571-72 (1989).

21

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

22

Appellant was receiving Office compensation at the time of the Office’s overpayment determination. His
monthly income left him with $919.83 per month after paying necessary living expenses. Appellant also had more
than $8,000.00 in assets.

7

CONCLUSION
The Board finds that appellant received a $3,090.41 overpayment of compensation. The
Board further finds that the Office did not abuse its discretion by refusing to waive recovery of
the overpayment and the Office properly required repayment of the overpayment by deducting
$500.00 from his compensation payments every four weeks.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 15-0038
Issued: March 10, 2016

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 October 6, 2014 appellant, through counsel, filed a timely appeal from a July 7, 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 the case.
ISSUE
The issue is whether appellant has more than one percent permanent impairment of the
left upper extremity for which he received a schedule award.
On appeal counsel asserts that the referee physician’s report is vague, speculative, and
incomplete, that OWCP erred in its factual basis for finding a conflict, and that the referee was
improperly selected under the Physicians Directory System (PDS).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 11, 2005 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that employment duties caused a pinched nerve in his left upper
extremity. He had stopped work on May 6, 2005.
A May 5, 2005 electrodiagnostic study showed evidence of ulnar neuropathy at the left
elbow (cubital tunnel syndrome), but no evidence of left hand carpal tunnel syndrome. The
claim was accepted for lesion of ulnar nerve, left. A report of February 21, 2006
electrodiagnostic testing showed bilateral ulnar nerve neuropathies at the elbow, very significant
on the left, and mild compromise of the left ulnar nerve at the wrist, bilateral median nerve
neuropathies at the wrist, bilateral symmetric and significant radial nerve neuropathy, and mild
right upper brachial plexus post-ganglionic sensory component compromise. Appellant returned
to part-time work in October 2006, following back surgery.2 On September 25, 2007
Dr. Scott M. Fried, a Board-certified osteopath specializing in orthopedic surgery, performed a
transposition of the ulnar nerve of the left arm.
In December 2007, appellant was referred to Dr. Zohar Stark, a Board-certified
orthopedic surgeon, for a second opinion. In reports dated January 10, 2008, Dr. Stark reviewed
appellant’s medical and surgical history. He found no findings or pathology relating to the ulnar
nerve on physical examination, including no weakness or sensory deficit. Dr. Stark advised that
appellant could return to work without restriction.3
On November 17, 2008 appellant requested a schedule award and submitted an August 5,
2008 report from Dr. Steven M. Allon, an orthopedic surgeon. Dr. Allon advised that, in
accordance with the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides),4 appellant had 48 percent impairment of
the left arm.
In a March 18, 2009 report, Dr. Henry J. Magliato, a Board-certified orthopedist and
OWCP medical adviser, disagreed with Dr. Allon’s finding that appellant had 48 percent left arm
impairment due to the accepted condition.
On April 4, 2009 Dr. Andrew A. Merola, also a Board-certified orthopedist and OWCP
medical adviser, noted that there were significant discrepancies between the opinions of
Dr. Stark and Dr. Allon, as Dr. Stark found that appellant’s condition had resolved while
Dr. Allon found that it resulted in permanent impairment. He recommended an impartial
evaluation. Dr. Fried continued to treat appellant through 2008.

2

Appellant has a claim for a back condition that OWCP has adjudicated under a separate claim. It is not before
the Board on the present appeal.
3

On March 4, 2008 OWCP terminated appellant’s wage loss and medical benefits. Appellant returned to regular
duty in March 2008. On August 18, 2008 an OWCP hearing representative affirmed the March 4, 2008 decision. In
a May 29, 2009 decision, OWCP denied modification of the termination of compensation benefits.
4

A.M.A., Guides (5th ed. 2001).

2

OWCP determined that a conflict in medical evidence had been created between
Dr. Stark and Dr. Allon regarding whether appellant had any impairment of the left upper
extremity due to the accepted condition, and in June 2009 referred him to Dr. Frederick G.
Dalzell, a Board-certified orthopedic surgeon, for an impartial evaluation. In a July 22, 2009
report, Dr. Dalzell noted appellant’s medical, surgical, and work history and his complaint of
weakness and hypersensitivity at the surgical site of his left upper extremity. He reviewed the
medical record including 2005 and 2006 electrodiagnostic studies and upper extremity x-ray
studies. Left upper extremity physical examination demonstrated intact sensation and 16 percent
deficit in lateral pinch on grip testing. Dr. Dalzell concluded that appellant had 10 percent left
upper extremity impairment.
In a September 28, 2009 report, Dr. Merola, an OWCP medical adviser, reviewed
Dr. Dalzell’s report. He indicated that Dr. Dalzell did not provide any calculations upon which
to make appropriate impairment recommendations and did not utilize the A.M.A., Guides.
Dr. Merola asked that a supplemental report be obtained. Dr. Dalzell did not respond to
OWCP’s request.
In February 2010 OWCP referred appellant to Dr. Jonathan Fox, a Board-certified
orthopedic surgeon, for an impartial medical evaluation. In a February 23, 2010 report, Dr. Fox
noted his review of the record. Examination of the left arm showed no neurologic deficits.
Tinel’s sign was negative, pin sensation, grip strength, and range of motion were no normal.
There were no signs of muscle atrophy, and muscle strength versus resistance was normal.
Dr. Fox indicated that maximum medical improvement had been reached, the examination was
normal, and appellant had no left arm impairment. On June 7, 2010 Dr. Magliato, an OWCP
medical adviser, reported that, based on Dr. Fox’s opinion, had zero percent left upper extremity
impairment.
By decision dated June 22, 2010, OWCP denied appellant’s claim for a left arm schedule
award based on the opinion of Dr. Fox. A hearing was held on October 13, 2010. In a
December 23, 2009 report, Dr. Allon updated his August 5, 2008 report to conform with the
sixth edition of the A.M.A., Guides.5 He did not re-examine appellant. Dr. Allon stated that
maximum medical improvement was reached on August 5, 2008. He advised that, in accordance
with Table 15-23 of the sixth edition of the A.M.A., Guides, appellant had four percent
impairment due to entrapment neuropathy of the left ulnar nerve at the elbow and two percent
impairment for entrapment neuropathy of the left median nerve at the wrist, for a total left upper
extremity impairment of six percent.6
On January 12, 2011 the hearing representative remanded the case to OWCP to obtain a
supplemental report from Dr. Fox providing a clear explanation as to how he used the A.M.A.,
Guides. On February 1, 2011 OWCP asked Dr. Fox to submit a supplemental report. On

5

Id. at (6th ed. 2008).

6

Regarding elbow neuropathy, Dr. Allon found modifiers of one for test findings, three for history and two for
physical examination; for wrist neuropathy he found modifiers of two for test findings, zero for history and three for
physical examination.

3

February 23, 2011 Dr. Fox advised OWCP that he did not have the sixth edition of the A.M.A.,
Guides and recommended referral to a hand surgeon.
On March 21, 2011 OWCP referred appellant to Dr. George P. Glenn, a Board-certified
orthopedic surgeon, for an impartial evaluation. In a May 12, 2011 report, Dr. Glenn reviewed
appellant’s history and described physical examination findings. Range of motion of the
shoulders, elbows, wrists, and fingers was normal with complaints of soreness of the thumb on
the left, no swelling, redness, or heat, and soreness to firm palpation through the ulnar groove on
the left. Muscle tone was excellent, and upper and forearm circumferences were equal, with no
atrophy. Grip and key pinch were normal, and reflexes were brisk. Sensory was well preserved
except for a complaint of a stocking-type distribution on the left. Two-point discrimination,
vibratory, and position sense were preserved. Phalen’s and reverse Phalen’s produced
complaints of shoulder discomfort on the left. Tinel’s sign was negative bilaterally. Dr. Glenn
diagnosed ulnar nerve compression syndrome, left (cubital tunnel syndrome), status post
transposition of the ulnar nerve with complete recovery, and no residual symptoms or signs. He
recommended a left elbow x-ray. In a May 4, 2011 work capacity evaluation, Dr. Glenn
indicated that appellant could perform his usual job with no restrictions. A July 1, 2011 bilateral
elbow x-ray demonstrated surgical changes on the left.
In an August 24, 2011 decision, OWCP found that appellant had no left arm impairment
based on Dr. Glenn’s opinion. On November 21, 2011 the hearing representative remanded the
case for an OWCP medical adviser to review Dr. Glenn’s report.
In a January 2, 2012 report, Dr. Merola, an OWCP medical adviser, reviewed Dr. Glenn’s
report and found that appellant had no left arm impairment. On January 17, 2012 OWCP again
found that appellant had no left arm impairment and denied his schedule award claim. On
June 24, 2012 the hearing representative remanded the case for OWCP to obtain a supplemental
report from Dr. Glenn that provided elbow range of motion findings in degrees and discussed
electrodiagnostic test results in accordance with the A.M.A., Guides.
In an August 23, 2012 report, Dr. Glenn stated that he had asked appellant to return to his
office so that he could specifically remeasure elbow range of motion.7 He explained that section
15.4f of the A.M.A., Guides should be used to evaluate entrapment neuropathy. Dr. Glenn
indicated that appellant had a functional history modifier of zero, as there was no demonstrable
interference with function but noted that, in the interest of fairness as a consequence of
appellant’s subjective complaints, one could accept a functional history modifier of one. He
further found that, although appellant did not fulfill all the criteria listed, Dr. Glenn could assign
a grade modifier of one for physical examination. Finally, Dr. Glenn indicated that May 5, 2005
electrodiagnostic studies would equate a grade modifier of one. He applied the net adjustment
formula and concluded that appellant had one percent left arm impairment.
In September 2012 appellant moved from New Jersey to Maine. On October 8, 2012
Dr. Merola concurred that appellant had one percent left arm impairment. On October 23, 2012
appellant was granted a schedule award for one percent impairment of the left arm. The award
7

Although not specifically stated by Dr. Glenn, a reading of his report indicates that appellant did not return for
further evaluation.

4

ran from August 23 to September 13, 2012. Counsel requested a hearing, which was held on
February 5, 2013. In a March 14, 2013 decision, the hearing representative found that
Dr. Glenn’s report was incomplete because appellant did not return to his office for further
measurement. The case was remanded to OWCP to obtain a new impartial evaluation, to include
elbow range of motion measurements, to be followed by a de novo decision.
Upon remand, OWCP prepared a new statement of accepted facts and set of questions.
On May 15, 2013 it referred appellant to Dr. David N. Markellos, a Board-certified orthopedic
surgeon. With regard to Dr. Markellos’ selection, the record contains an April 29, 2013 iFECS
Report: ME023 Appointment Schedule Notification referring appellant to Dr. Markellos for an
impartial evaluation. The record additionally contains a bypass history and a number of screen
shots, including that no appropriate specialists were found within a 25, 50, 75, 100, 125, 150, and
175 mile radius.8
In a May 29, 2013 report, Dr. Markellos noted his review of an extensive medical record,
a statement of accepted facts, a set of questions, a position description, appellant’s description of
his employment and medical history, and his complaint that his left elbow was a more sore than
usual due to the five-hour drive to the examination. Left arm examination demonstrated no
visible asymmetry or atrophy of the paraspinous, periscapular, shoulder girdle, deltoid, either
arm or forearm, when compared to the right side. Circumferential measurements of the forearm
and arm were equal bilaterally, indicating no measurable disuse atrophy. Appellant had full
unrestricted and painless range of motion of the neck and both shoulders and equal range of
motion of both elbows, from full extension to 140 degrees of flexion; full and equal 90 degrees
of supination; and 80 degrees of pronation. A well-healed medial elbow scar was slightly tender
to palpation. Tinel’s sign was negative along the course of the expected position of the
transposed ulnar nerve. There was no visible or measurable atrophy of the forearm and no
visible atrophy with intrinsics of the hands. Strength was equal and +5/+5 of the upper arm,
forearm, and intrinsics bilaterally. Froman’s test for ulnar intrinsic weakness was negative with
no hypothenar atrophy. Appellant reported subjective decreased sensation of the fifth finger
only. Two-point discrimination was four millimeters in both the ulnar and median side of the
hand, indicating no residual sensory deficit. Grip strength on the right was a consistent 56 to 57
kilograms but, because it varied from 10 to 38 kilograms on the left, this inconsistent and varied
reading was not ratable. X-rays that day revealed two medial epicondylar anchors in place and
no early osteoarthritis, soft tissue calcifications, or other abnormality. Dr. Markellos diagnosed
history of left ulnar nerve entrapment neuropathy, status post ulnar nerve decompression and
anterior submuscular transposition, with excellent clinical result and no objective evidence of
residual neuropathy, weakness, or limited mobility. He indicated that, under the sixth edition of
the A.M.A., Guides, for a diagnosis of entrapment neuropathy of the left upper extremity, section
15.4f was applicable, which indicated that grade modifiers should be determined for the purposes
of calculating impairment. Dr. Markellos advised that appellant’s clinical history was consistent
with mild, intermittent symptoms with tingling and no objective restriction from current
activities of daily living. His physical examination revealed full unrestricted range of motion of
the elbow, a well-healed surgical incision, two-point discrimination in the normal range, and no
8

The bypass history documents that 17 physicians were bypassed before Dr. Markellos’ name was reached. The
reasons given included telephone out of service, did not accept OWCP patients, and did not treat hands.

5

objective clinical atrophy. Grip testing was variable, inconsistent, and therefore unratable.
Dr. Markellos advised that at some point, to truly define objective impairment, appellant could
be referred for electrodiagnostic studies but that, at present, his clinical findings were normal
with no objective motor or sensory deficit, and with full left elbow range of motion. He
concluded that appellant had a class 0 rating for nerve entrapment, for zero percent left upper
extremity permanent impairment and that maximum medical improvement was attained by the
time of Dr. Allon’s August 2008 assessment, approximately one year following surgery.
On September 5, 2013 Dr. Hormozan Aprin, a Board-certified orthopedic surgeon and an
OWCP medical adviser, reviewed the record, including Dr. Markellos’ report. He indicated that
the referee physician correctly applied the A.M.A., Guides, as defined in section 15.4f.
Dr. Aprin concluded that the most probable date appellant reached maximum medical
improvement was when appellant was last evaluated by Dr. Fried.
In an October 28, 2013 decision, OWCP denied appellant’s claim for an additional
schedule award, finding that the weight of the medical evidence rested with Dr. Markellos, as
appropriately reviewed by the OWCP medical adviser. Counsel requested a hearing that was
held on April 14, 2014. He asserted that there was no actual conflict because Dr. Stark was not
asked about impairment in his second opinion examination and therefore could not create a
conflict. Moreover, counsel asserted that Dr. Markellos was improperly selected as an impartial
examiner.
Subsequent to the hearing, appellant submitted an April 18, 2014 report from Dr. David
Weiss, an osteopath and associate of Dr. Allon. Dr. Weiss noted his review of Dr. Allon’s
reports dated August 5, 2008 and December 23, 2009, the May 29, 2013 report from
Dr. Markellos, and the September 5, 2013 report from Dr. Aprin. He disagreed with
Dr. Markellos’ impairment analysis, asserting that, based on appellant’s August 2008
examination findings, he had four percent left arm impairment due to left ulnar nerve entrapment
at the elbow and two percent impairment for entrapment of the median nerve, for a total six
percent left arm impairment.
By decision dated July 7, 2014, the hearing representative found that the weight of the
medical evidence rested with the opinion of Dr. Markellos and affirmed the October 28, 2013
decision.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing federal regulations10 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 for all claimants, OWCP has adopted

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

6

the A.M.A., Guides as the uniform standard applicable to all claimants.11 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Section 15.4f provides the framework for evaluating entrapment
neuropathy.14 Impairment due to carpal tunnel and cubital tunnel syndrome is evaluated under
the scheme found in Table 15-23 (Entrapment/Compression Neuropathy Impairment) and
accompanying relevant text.15 In Table 15-23, grade modifiers levels (ranging from 0 to 4) are
described for the categories test findings, history, and physical findings. The grade modifier
levels are averaged to arrive at the appropriate overall grade modifier level and to identify a
default rating value. The default rating value may be modified up or down by one percent based
on functional scale, an assessment of impact on daily living activities.16 The A.M.A., Guides
specifically indicate that, if multiple simultaneous neuropathies occur in the same limb, both
impairments may be rated and the nerve qualifying for the larger impairment is given the full
impairment while the nerve qualifying for the smaller impairment is rated at 50 percent.17 The
A.M.A., Guides further indicate that Table 15-23 is to be used for rating focal nerve
compromise,18 and Appendix 15-B provides further guidance regarding electrodiagnostic
evaluation of entrapment syndromes.19
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.20 The implementing regulation
states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.21 When there exist opposing medical reports of virtually equal weight
11

Id. at § 10.404(a).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
13

A.M.A., Guides, supra note 4 at 3, section 1.3, “ICF: A Contemporary Model of Disablement.”

14

Id. at 432-50.

15

Id. at 449.

16

Id. at 448-50.

17

Id. at 448.

18

Id.

19

Id. at 487-90.

20

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

21

20 C.F.R. § 10.321.

7

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.22
OWCP procedures further provide that, while an OWCP medical adviser may review the
opinion of a referee specialist in a schedule award case, the resolution of the conflict is the
specialist’s responsibility and not that of the medical adviser. The medical adviser should not
resolve the conflict of medical opinion or attempt to clarify or expand the opinion of the medical
referee. If clarification is necessary, a supplemental report should be obtained from the referee
specialist.23
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.24
The medical management application (MMA), which replaced the PDS, allows users to
access a database of Board-certified specialist physician, and is used by OWCP to schedule
referee examinations. The application contains an automatic, and strict rotational scheduling
feature to provide for consistent rotation among physicians and to record the information needed
to document the selection of the physician.25
The claims examiner is not able to determine which physician serves as the impartial
medical specialist. A medical scheduler inputs the claim number into the application, from
which the claimant’s home zip code is loaded. The scheduler chooses the type of examination to
be performed (second opinion or impartial referee) and the applicable medical specialty. The
next physician in the roster appears on the screen and remains until an appointment is scheduled
or the physician is bypassed. If the physician agrees to the appointment, the date and time are
entered into the application. Upon entry of the appointment information, the application prompts
the medical scheduler to prepare an ME023 appointment notification report for imaging into the
case file. Once an appointment with a medical referee is scheduled, the claimant and any
authorized representative are to be notified.26

22

V.G., 59 ECAB 635 (2008).

23

See Federal (FECA) Procedure Manual, Part 2, supra note 12 at Chapter 2.808.6(g)(1,2) (February 2013).

24

Raymond J. Brown, 52 ECAB 192 (2001).

25

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5
(May 2013); see also R.C., Docket No. 12-468 (issued October 25, 2012).
26

B.N., Docket No. 12-1394 (issued August 5, 2013).

8

If an appointment cannot be scheduled in a timely manner or cannot be scheduled for
some other reason such as a conflict or the physician is of the wrong specialty, the scheduler will
update the application with an appropriate bypass code. Upon the entering of a bypass code, the
MMA will select the next physician in the rotation.27
ANALYSIS
OWCP accepted appellant’s claim for lesion of the left ulnar nerve. In December 2007, it
referred him to Dr. Stark for a second opinion evaluation, and on January 10, 2008 Dr. Stark
found no pathology relating to the ulnar nerve of physical examination, including no weakness or
sensory deficit. Dr. Stark advised that appellant could return to work without restriction.
Appellant filed a schedule award claim on November 17, 2008 and submitted an August 5, 2008
report from Dr. Allon who found 48 percent permanent left arm impairment. OWCP found that
a medical conflict was created between Dr. Stark and Dr. Allon regarding appellant’s impairment
and condition and first referred him to Dr. Dalzell, and then to Dr. Fox for an impartial
evaluation. Following denial of the schedule award claim on June 22, 2010 based upon the
medical opinion of Dr. Fox, appellant submitted a December 23, 2009 report from Dr. Allon who
updated his August 2008 report now finding that appellant had six percent left arm impairment
due to ulnar nerve entrapment at the elbow and wrist pursuant to the sixth edition of the A.M.A.,
Guides.
On January 12, 2011 the hearing representative remanded the case for a supplemental
report from Dr. Fox, who recommended referral to a hand surgeon as he did not have a sixth
edition of the A.M.A., Guides. OWCP then referred appellant to Dr. Glenn for an impartial
evaluation. Dr. Glenn found no impairment. OWCP again denied appellant’s schedule award
claim on August 24, 2011. On November 21, 2011 it remanded the case for review by an OWCP
medical adviser, who concluded that appellant had no left arm impairment, and on January 17,
2012, OWCP again denied the schedule award claim.
On June 24, 2012 the hearing representative remanded the case for OWCP to obtain a
supplemental report from Dr. Glenn. In an August 23, 2012 report, he advised that appellant had
a one percent left arm impairment. On October 23, 2012 appellant was granted a schedule award
for one percent impairment of the left upper extremity.
On March 14, 2013 the hearing representative directed a new impartial evaluation
regarding appellant’s left arm impairment that was to include elbow range of motion
measurements. OWCP then referred appellant to Dr. Markellos who provided a comprehensive
report dated May 29, 2013 in which he found that appellant had no left arm impairment. On
October 28, 2013 it denied an additional schedule award based on the opinion of Dr. Markellos.
Appellant requested a hearing and submitted an April 18, 2014 report from Dr. Weiss
who maintained that that the physical examination findings from Dr. Allon in 2008 and his
analysis in 2009 established that appellant had six percent impairment of the left upper
extremity. On July 7, 2014 the hearing representative affirmed the October 28, 2013 decision.
27

Supra note 25.

9

Counsel has asserted that Dr. Markellos was improperly selected as an impartial
specialist. OWCP uses the MMA, as described above. This application replaced the PDS and
allows users to access a database of Board-certified specialist physicians and is used to schedule
examinations. The application contains an automatic and strict rotational scheduling feature to
provide for consistent rotation among physicians and to record the information needed to
document the selection of the physician.28
In the present case, the record contains an OWCP ME023 report documenting
Dr. Markellos’ selection under the MMA. Additionally, as required, the record contains a bypass
history report certifying that the MMA was used to schedule appellant’s appointment with
Dr. Markellos.
This report provides explanations for each physician bypassed until
Dr. Markellos was reached.29 This evidence, within the MMA system, indicates that all
physicians were appropriately bypassed until Dr. Markellos was selected. The Board finds that
OWCP provided sufficient documentation to establish that it properly utilized its MMA system
in selecting Dr. Markellos as the impartial medical examiner. By doing so, OWCP has met its
affirmative obligation to establish that it properly followed its selection procedures.30 Thus,
counsel’s argument is without merit.
In his May 29, 2013 report, Dr. Markellos noted his review of the factual and medical
record, and appellant’s description of his employment and medical history and physical
complaints. He fully described examination findings and diagnosed history of left ulnar nerve
entrapment neuropathy, status post ulnar nerve decompression and anterior submuscular
transposition, with excellent clinical result and no objective evidence of residual neuropathy,
weakness, or limited mobility. Dr. Markellos indicated that, in accordance with section 15.4 of
the A.M.A., Guides, for a diagnosis of entrapment neuropathy of the left arm, appellant’s clinical
history was consistent with mild, intermittent symptoms with tingling and no objective
restriction from current activities of daily living. He noted that appellant’s examination revealed
full unrestricted range of motion of the elbow, a well-healed surgical incision, two-point
discrimination in the normal range, and no objective clinical atrophy. Grip testing was variable,
inconsistent, and therefore unratable. Dr. Markellos advised that appellant’s clinical findings
were normal with no objective motor or sensory deficit, and with full left elbow range of motion.
He concluded that appellant had a class 0 rating for nerve entrapment, for zero percent left upper
extremity impairment, and indicated that maximum medical improvement was attained
approximately one year following surgery.
On September 5, 2013 Dr. Aprin, the OWCP medical adviser, reviewed the record,
including Dr. Markellos’ report. He determined that Dr. Markellos correctly applied the A.M.A.,
Guides as defined in section 15.4f and that appellant reached maximum medical improvement on
July 17, 2008.

28

Supra note 25; see also L.H., Docket No. 14-1060 (issued October 1, 2014).

29

Supra note 8.

30

See A.M., Docket No. 14-1275 (issued January 12, 2015).

10

The Board has carefully reviewed the opinion of Dr. Markellos and finds that it has
reliability, probative value, and convincing quality with respect to its conclusions regarding the
relevant issue in the present case.31 Dr. Markellos’ opinion is based on a proper factual and
medical history, which he thoroughly reviewed. He accurately summarized the relevant medical
evidence and provided medical rationale that appellant had a class 0 rating for ulnar nerve
entrapment, for a zero left upper extremity impairment. This finding is in accordance with
section 15.4f of the A.M.A., Guides.32 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.33
Dr. Markellos’ opinion is consequently entitled to special weight as the impairment medical
examiner.34 Appellant therefore did not meet his burden of proof to establish that he has
impairment of the left upper extremity greater than the one percent previously awarded.
On appeal counsel asserts that the referee physician’s report is vague, speculative, and
incomplete, that the Office erred in its factual basis for finding a conflict, and that the referee
was improperly selected under the PDS. The Board has previously found herein that the
independent medical report of Dr. Markellos was well reasoned and entitled to the special weight
as an independent medical examination. As has also been noted above, the findings of Dr. Stark
who performed a second opinion in which he found no physical abnormalities relating to
appellant’s ulnar nerve were sufficient to create a conflict with the attending physician,
Dr. Allon, who found ulnar nerve impairment and a resulting 48 percent permanent impairment
rating. Finally, the Board has previously found herein that OWCP properly selected the
independent medical examiner, Dr. Markellos, under the PDS system.
Appellant 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.
CONCLUSION
The Board finds that appellant did not establish a left upper extremity impairment greater
than one percent impairment for which he has received a schedule award.

31

See C.M., Docket No. 13-2107 (issued April 21, 2014).

32

Id.

33

Supra note 22.

34

Id.

11

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.35
Issued: March 10, 2016
Washington, DC

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

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

35

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member
of the Board effective November 16, 2015.

12