United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Franklin Square, NY, Employer
__________________________________________

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

Docket No. 16-1873
Issued: February 9, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 22, 2016 appellant filed a timely appeal from a September 13, 20161
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed between the last merit decision of OWCP dated January 7, 2016, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant abandoned her request for a telephone hearing before
OWCP’s Branch of Hearings and Review.
On appeal appellant explained that her absence from the hearing was due to a medical
problem.
1

Appellant stated that she was appealing an August 30, 2016 OWCP decision. The Board notes, however, that
the record does not contain an adverse final decision issued by OWCP on that date.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 14, 2014 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she fell and injured her right wrist at work on that date. She
stopped work on the date of injury, returned to work on February 19, 2014, and stopped work
again on February 24, 2014.
On March 26, 2014 OWCP accepted appellant’s claim for right wrist sprain. On June 4,
2014 it expanded the acceptance of the claim to include sprain of unspecified sites of the right
knee and right leg and paid wage-loss compensation beginning on that date.
On July 13, 2015 OWCP mailed appellant a Form EN1032 to include any earnings from
employment in the past 15 months and/or any monetary or in-kind compensation for
volunteering. The form was sent to appellant’s last known address. The letter accompanying the
form specifically advised that appellant’s benefits would be suspended if she failed to return the
form within 30 days pursuant to 20 C.F.R. § 10.528. Appellant did not return the form within
the time allotted.
In a January 7, 2016 decision, OWCP suspended appellant’s wage-loss compensation
benefits effective January 9, 2016 due to her failure to submit a completed Form EN1032.3 The
decision notified appellant that, if she completed and returned the Form EN1032, her benefits
would be restored, retroactive to the date of their suspension. The decision was sent to
appellant’s correct address.
On January 14, 2016 appellant requested a telephone hearing with an OWCP hearing
representative. The Chief of OWCP’s Branch of Hearings and Review wrote to appellant on
January 14, 2016 acknowledging receipt of the hearing request. The letter was mailed to her
correct address.
In a July 21, 2016 letter, an OWCP hearing representative notified appellant that a
telephone hearing would be held on August 30, 2016 at 2:00 p.m. Eastern Standard Time (EST).
Appellant was provided a toll-free number and passcode to use to appear at the scheduled
hearing. She was advised regarding the procedures for rescheduling a hearing. The hearing
notice was mailed to appellant’s address of record. Appellant did not appear at the hearing.
In a September 13, 2016 decision, the hearing representative found that appellant had
abandoned her hearing request, which had been scheduled for August 30, 2016. She noted that
appellant received written notification of the hearing 30 days in advance, but failed to appear.
The hearing representative further noted that nothing in the record established that appellant had
contacted the Branch of Hearings and Review either prior to or subsequent to the scheduled
hearing to explain her absence.

3

In the January 7, 2016 decision, OWCP noted that appellant had a change of address prior to the time of the
mailing of the Form EN1032. It indicated that, while it was not notified about such change, there was a forwarding
order in place and the Form EN1032 was not returned as undeliverable. Thus, OWCP presumed that appellant
received the form.

2

LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.4 Unless
otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.5 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.6
A hearing before the Branch of Hearings and Review can be considered abandoned only
under very limited circumstances.7 Chapter 2.1601.6(g) of OWCP’s procedures8 and section
10.622(f) of its regulations9 provide in relevant part that failure of the claimant to appear at the
scheduled hearing, failure to request a postponement, and failure to request in writing within 10
days after the date set for the hearing that another hearing be scheduled shall constitute
abandonment of the request for a hearing. Under these circumstances, the Branch of Hearings
and Review will issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the district office.10
ANALYSIS
On January 7, 2016 OWCP issued a final decision suspending appellant’s wage-loss
compensation benefits effective January 9, 2016 as she failed to complete and return a Form CA1032. OWCP’s Branch of Hearings and Review received a timely request for a telephone
hearing regarding the January 7, 2016 suspension decision, which it acknowledged by letter
dated January 14, 2016. Several months later, in a July 21, 2016 letter, the Branch of Hearings
and Review provided 30 days in advance written notice of the hearing, which was scheduled for
August 30, 2016 at 2:00 p.m., EST. OWCP mailed the July 21, 2016 notice to appellant’s
address of record, and it was not returned as undeliverable. Absent evidence to the contrary, a
notice mailed in the ordinary course of business is presumed to have been received by the
intended recipient.11 This presumption is commonly referred to as the mailbox rule.12 It arises
4

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5

20 C.F.R. § 10.617(b).

6

See also Michelle R. Littlejohn, 42 ECAB 463 (1991).

7

Claudia J. Whitten, 52 ECAB 483 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011).
9

20 C.F.R. § 10.622(f).

10

See supra note 8 at Chapter 2.1601.6(g).

11

Kenneth E. Harris, 54 ECAB 502, 505 (2003).

12

Id.

3

when the record reflects that the notice was properly addressed and duly mailed.13 The current
record is devoid of any evidence to rebut the presumption.
Appellant did not appear for the August 30, 2016 scheduled hearing, and there is no
indication that she requested postponement of the hearing.14 Moreover, she did not submit a
written request within the 10-day period following the scheduled hearing explaining her absence
and requesting that another hearing be scheduled.15 The regulations provide that where good
cause for failure to appear is shown, another hearing will be scheduled and conducted by
teleconference.16
The record establishes that the Branch of Hearings and Review provided at least 30-days
advance written notice of her scheduled hearing. As previously indicated, appellant did not
request postponement of the hearing, nor did she attend the August 30, 2016 scheduled hearing.
Lastly, she did not provide a written explanation for her absence within the 10-day period
following the previously scheduled hearing. Under the circumstances, the hearing representative
properly found that appellant abandoned her hearing request.
On appeal appellant explained that her absence from the hearing was due to a medical
problem. However, she did not provide such notification to OWCP within 10 days of the
scheduled hearing. All three requirements for abandonment are met and therefore the Board
finds that appellant abandoned her request for a telephone hearing.
CONCLUSION
The Board finds that appellant abandoned her request for a telephone hearing before
OWCP’s Branch of Hearings and Review.

13

Id.

14

See 20 C.F.R. § 10.622(c).

15

Id. at § 10.622(f).

16

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 9, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, GA, Employer
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__________________________________________ )
J.H., Appellant

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

Docket No. 06-2180
Issued: March 13, 2007

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 September 27, 2006 appellant filed a timely appeal from a June 23, 2006 schedule
award by the Office of Workers’ Compensation Programs for five percent impairment of the
right upper extremity and four percent impairment of the left upper extremity. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has more than a five percent impairment of his right upper
extremity and a four percent impairment of his left upper extremity, for which he received a
schedule award.
FACTUAL HISTORY
On July 18, 2005 appellant, then a 55-year-old pneudraulics system mechanic, filed an
occupational disease claim alleging that he developed bilateral epicondylitis in the performance
of duty. He did not stop work but began working light duty. The Office accepted his claim for
“lateral epicondylitis elbow region, bilateral” on September 9, 2005.

In an October 26, 2005 report, Dr. Thomas Flesher III, a Board-certified orthopedic
surgeon and appellant’s treating physician, noted limitations in appellant’s elbow flexion and
extension bilaterally. He advised that appellant’s elbow condition would not likely improve and
released appellant from his treatment.
On November 7, 2005 appellant claimed a schedule award.
In a January 3, 2006 report, Dr. John W. Ellis, a Board-certified family medicine
specialist, discussed appellant’s complaints of pain, decreased range of motion and loss of
strength in both arms. On examination of the right arm, he measured 120 degrees of flexion, -5
degrees of extension, 66 degrees of pronation and 70 degrees of supination. Dr. Ellis noted that
these measurements equated to two percent for flexion, one percent for extension, one percent
for pronation and zero percent for supination. On examination of the left arm, he measured 120
degrees of flexion, -5 degrees of extension, 60 degrees of pronation and 54 degrees of supination.
Dr. Ellis noted that these measurements equated to two percent for flexion, one percent for
extension, one percent for pronation and one percent for supination. He also noted results of grip
strength testing for each extremity. Dr. Ellis stated that appellant had 30 percent impairment in
both arms based on grip strength testing. He noted a calculation of “48.5-3/48.5 = .93 = 30” for
the right arm and “44.6-7/44.6 = .84 = 30” percent for the left arm. Dr. Ellis concluded that
appellant had a 30 percent permanent impairment to each arm based on decreased grip strength.
He stated that he applied the American Medical Association, Guides to the Evaluation of
Permanent Impairment1 in calculating appellant’s impairment. Dr. Ellis noted that appellant’s
date of maximum medical improvement was October 26, 2005.
In a February 9, 2006 report, an Office medical adviser advised that Dr. Ellis’s report was
not adequate for an impairment rating as he improperly relied on grip strength loss in calculating
impairment. The medical adviser recommended that appellant be referred to an appropriate
specialist for an impairment rating.
On March 7, 2006 the Office referred appellant to Dr. Michael Shawn Smith, a Boardcertified physiatrist, for a second opinion.
In an April 18, 2006 report, Dr. Smith examined appellant and offered an impairment
rating. On examination of the right elbow, he found 120 degrees of flexion, -5 degrees of
extension, 60 degrees of pronation and 60 degrees of supination. On examination of the left
elbow, Dr. Smith found 130 degrees of flexion, -10 degrees of extension, 60 degrees of pronation
and 60 degrees of supination. He also found that appellant had normal strength in his deltoids,
biceps, triceps, brachial radialis, supinator and pronators. Dr. Smith noted that appellant had
decreased grip strength bilaterally. He stated that he had applied the A.M.A., Guides, Figure 1637, to determine appellant’s impairment rating for loss of pronation and supination.2 Dr. Smith
applied the A.M.A., Guides to find that appellant had one percent upper extremity impairment
related to abnormal supination and one percent impairment related to abnormal pronation
bilaterally, for a total of two percent impairment for abnormal supination and pronation on each
1

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

2

A.M.A., Guides, 474, Figure 16-37.

2

elbow. He also found that appellant had two percent impairment for flexion and one percent
impairment for extension on the right upper extremity. Finally, appellant had one percent
impairment for flexion and one percent impairment for extension3 resulting in two percent
impairment for extension and flexion on the left upper extremity. Dr. Smith added the loss of
range of motion values to find that appellant had five percent upper extremity impairment on the
right side and four percent upper extremity impairment on the left side.
On May 15, 2006 an Office medical adviser reviewed Dr. Smith’s report and agreed that
appellant had five percent impairment for the right upper extremity and a four percent
impairment rating for the left upper extremity due to loss of range of motion, based on the
A.M.A., Guides, Figures 16-34 and 16-37, located on pages 471 and 474, respectively. The
medical adviser found that appellant’s date of maximum medical improvement was April 18,
2006, the date of Dr. Smith’s evaluation.
By decision dated June 23, 2006, the Office granted appellant a schedule award for five
percent impairment of the right upper extremity and four percent impairment of the left upper
extremity. The period of the award ran for 28.08 weeks from April 18 to June 10, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 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, the Act 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 regulation as the appropriate standard for evaluating schedule losses.6
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.7 Section 16.4 provides that in evaluating abnormal
motion both active and passive motion measurements are necessary to evaluate the joint motion
under the appropriate charts and these should be added to obtain the total motion impairment.8
Grip strength is used to evaluate power weaknesses related to the structures in the hand, wrist, or
forearm. The A.M.A., Guides do not encourage the use of grip strength as an impairment rating
3

The Board notes that Dr. Smith lists 11 percent impairment for 10 degrees of extension for the left arm. This
appears to be a typographical error; Figure 16-34 of the A.M.A., Guides provides that 10 degrees of extension
warrants one percent impairment.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See id.

7

A.M.A., Guides 433-521.

8

Id. at 451-52.

3

because strength measurements are functional tests influenced by subjective factors that are
difficult to control and the A.M.A., Guides is, for the most part, based on anatomic impairment.
Thus the A.M.A., Guides does not assign a large role to such measurements. Only in rare cases
should grip strength be used and only when it represents an impairing factor that has not been
otherwise considered adequately. The A.M.A., Guides states that, otherwise, the impairment
ratings based on objective anatomic findings take precedence.9
ANALYSIS
The Office accepted that appellant developed bilateral epicondylitis in the performance of
duty. In support of his schedule award request, appellant submitted a January 3, 2006
impairment evaluation from Dr. Ellis, who listed range of motion findings for each arm.
However, Dr. Ellis did not ultimately rate impairment based on lost motion. Instead, he found
that appellant had 30 percent impairment to both the right and left arms based on loss of grip
strength. Dr. Ellis did not attribute any impairment to pain or weakness due to peripheral nerve
system impairment.
As noted, the A.M.A., Guides do not encourage the use of loss of grip strength for an
impairment rating because strength measurements are functional tests influenced by subjective
factors that are difficult to control. The A.M.A., Guides indicate that only in rare cases should
grip strength be used and only when it represents an impairing factor that has not been otherwise
considered adequately. Furthermore, section 16.7d of the A.M.A., Guides indicate that for
conditions such as epicondylitis, impairment on the basis of weakness of grip strength should
only be considered where an individual has had a tendon rupture or has undergone surgery to
correct the condition and may have some permanent weakness of grip as a result of the tendon
rupture or the surgery.10 In this case, there is no evidence of tendon rupture or surgery to correct
appellant’s condition. The impairment rating provided by Dr. Ellis is of diminished probative
value.
Dr. Smith, an Office referral physician, examined appellant on April 18, 2006 and
provided an impairment rating based on loss of range of motion. On examination of the right
arm, Dr. Smith found that appellant had 120 degrees of flexion, -5 degrees of extension, 60
degrees of pronation and 60 degrees of supination. Accordingly, appellant had two percent
impairment for flexion,11 one percent impairment for extension,12 one percent impairment for
pronation13 and one percent impairment for supination,14 for a total of five percent impairment of
the right upper extremity. On examination of the left upper extremity, Dr. Smith found that
appellant had 130 degrees of flexion, -10 degrees of extension, 60 degrees of pronation and 60
9

Id. at 508; see Phillip H. Conte, 56 ECAB __ (Docket No. 04-1524, issued December 22, 2004).

10

See A.M.A., Guides 507.

11

Id. at 472, Figure 16-34.

12

Id.

13

Id. at 474 Figure 16-37.

14

Id.

4

degrees of supination. Accordingly, appellant had one percent impairment for extension,15 one
percent impairment for flexion,16 one percent impairment for pronation17 and one percent
impairment for supination,18 for a total of four percent impairment of the left upper extremity.
The Board finds that Dr. Smith’s impairment ratings comport with Figures 16-34 and 16-37 in
the A.M.A., Guides.19 Dr. Smith found no other basis on which to attribute impairment under
the A.M.A., Guides.
The Office medical adviser reviewed Dr. Smith’s impairment evaluation on
May 15, 2006. The medical adviser concurred with Dr. Smith’s impairment rating based on loss
of range of motion, confirming the evaluation with the A.M.A., Guides, Figures 16-34 and 1637, as noted above. Consequently, the weight of the medical evidence establishes that, pursuant
to the A.M.A., Guides, appellant has no more than five percent impairment for the right upper
extremity and four percent impairment for the left upper extremity.
On appeal, appellant contends that the Office should have accepted Dr. Ellis’s 30 percent
impairment rating. However, Dr. Ellis’ impairment rating was based on decreased grip strength,
a method of impairment evaluation that is qualified for use under the A.M.A., Guides. Appellant
also asserts that he has a greater impairment due to pain. The Board notes, however, that
Dr. Smith conducted his evaluation in accordance with the A.M.A., Guides and did not provide
an impairment rating for pain. Similarly, Dr. Ellis did not provide any rating for pain under the
A.M.A., Guides.
CONCLUSION
The Board finds that appellant has no more than a five percent impairment rating for his
right upper extremity and a four percent impairment rating for his left upper extremity.

15

Id. at 472, Figure 16-34.

16

Id.

17

Id. at 474, Figure 16-37.

18

Id.

19

Dr. Smith’s range of motion findings are also similar to range of motion findings provided by Dr. Ellis.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2006 is affirmed.
Issued: March 13, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Park, GA, Employer
_________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 22-0309
Issued: January 27, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On December 28, 2021, appellant, through counsel, filed a timely appeal from a December
21, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards assigned Docket No. 22-0309.
In a letter dated and received January 18, 2022, counsel requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 22-0309 is dismissed.
Issued: January 27, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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SOCIAL SECURITY ADMINISTRATION,
)
Burlington, NC, Employer
)
___________________________________________ )
C.B., Appellant

Appearances:

Docket No. 08-988
Issued: October 3, 2008

Case Submitted on the Record

Edward L. Daniel, Esq., for the appellant
Office of Solicitor, for the Director

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

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 16, 2008, which affirmed the denial of his
traumatic injury claim. 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 appellant has met his burden of proof in establishing that he
sustained an aggravation of left-sided disc herniation at C5-6 and C6-7 on July 12, 2004.
FACTUAL HISTORY
On July 3, 2007 appellant, then a 42-year-old claims representative, filed a traumatic
injury claim alleging that on July 12, 2004, while he was interviewing a claimant and typing on a
keyboard, he turned his neck and felt a pop followed by pain and numbness. He claimed an
aggravation of a left-sided disc herniation at C5-6 and C6-7. Appellant stopped work on July 12,
2004 and returned on July 23, 2004. Brian Walker, his supervisor, noted that appellant informed

management of his condition and inability to continue working on July 12, 2004 but that
management did not interpret his condition as an injury and no reports were filed. Rather,
Mr. Walker noted that management treated the situation as one where appellant became ill on the
job and needed to go home. The supervisor stated that appellant did not notify management of
his interpretation of the July 12, 2004 event as an injury until July 3, 2007.1
By letter dated July 18, 2007, the Office asked appellant to submit additional information
including a comprehensive medical report from his treating physician which included a reasoned
explanation as to how the specific work incident identified by appellant contributed to his
claimed injury. It also requested that appellant address why he delayed in filing his claim. No
additional evidence was received.
In a decision dated August 24, 2007, the Office denied appellant’s claim as the evidence
was not sufficient to establish that the incident occurred as alleged.
On December 7, 2007 appellant requested reconsideration. He noted that on July 12,
2004, while working at his station, he experienced a severe onset of pain in his neck.
Appellant’s manager took him to his physician for treatment and he was subsequently admitted
to the hospital where he was treated for several days.
The record reveals that, on July 1, 2004, appellant was treated by Dr. Chris N.
Christakos, a Board-certified family practitioner, in follow-up for an onset of neck pain and
numbness in his left upper extremity. He reported that his symptoms began after using his
computer. Dr. Christakos noted an essentially normal physical examination. He diagnosed
blood pressure discrepancy in the upper extremities, possible vascular abnormality and left upper
extremity paresthesia. Dr. Christakos stated that it was unclear whether the etiology of
appellant’s condition was vascular or neurologic. A July 8, 2004 magnetic resonance imaging
(MRI) scan of the cervical spine revealed a small left posterolateral disc protrusion at C6-7 and a
disc bulge at C5-6 with degenerative facet change. On July 12, 2004 appellant was admitted to
the hospital by Dr. William O. Bell, a Board-certified neurologist, with a four to six-week history
of pain in the neck, left arm and shoulder. He reported experiencing recurrent neck and left
upper extremity symptoms since the beginning of July 2004. Dr. Bell noted findings of a
positive Spurling’s sign on the left, decreased sensation in the left C7 distribution and decreased
reflexes and diagnosed left C7 radiculopathy secondary to ruptured disc at C6-7. On July 14,
2004 Dr. Bell advised that appellant was discharged after treatment of a ruptured disc at C6-7
and degenerative disc disease at C5-6. Appellant had a six-week history of neck and left arm
symptoms prior to his admission. Dr. Bell stated that pain medication and steroids had resolved
appellant’s problems. On August 26, 2004 he noted improvement in appellant’s condition with
no evidence of numbness in the C7 distribution or cervical radiculopathy.
On October 4, 2007 appellant was treated by Dr. John W. Ellis, a Board-certified family
practitioner, for work-related injuries to the neck and arms occurring on July 12, 2004 and
November 14, 2005. He noted appellant’s history of a 1986 back injury following “a jump” that
1

The record indicates that appellant has filed claims for separate injuries occurring on July 11, 2005, file number
06-214341 and November 14, 2005, file number 06-216318. These other claims are not before the Board on the
present appeal.

2

caused back and left leg pain that continued intermittently. Dr. Ellis reported that appellant
underwent left carpal tunnel and left cubital tunnel surgery in 1989 and, in 1998, had a whiplash
injury in his neck and right carpal and cubital tunnel syndromes due to a motor vehicle accident.
Appellant reported that in May and June 30, 2004, while sitting at his computer at home, he
experienced a stabbing pain in his neck down his left arm. On July 12, 2004 while at his
terminal at work, he experienced a sudden, severe pain in his neck down his left arm into his
hands. Appellant indicated that his manager transported him to Dr. Bell’s office and he was
subsequently admitted to the hospital and underwent intravenous steroid injections and pain
medication. He reported a similar incident occurring at work on November 14, 2005, while
sitting at his desk typing, he experienced a sudden onset of pain in his neck which radiated down
both arms. Dr. Bell opined that appellant’s injuries were caused by performing repetitive data
entry at work and sitting in a nonergonomic position. He noted that appellant conducted three to
six interviews per day using a straight keyboard and was required to keep his wrists flexed due to
preexisting nerve impingement. Dr. Bell noted that the onset of neck and arm pain on July 12,
2004 and November 14, 2005 occurred while appellant was working on a straight keyboard and
conducting interviews that caused repetitive strains of the upper back, shoulders and neck and
ultimately a micro tear of the discs and left C6, C7 and C8 nerve root impairment. He opined
that the “injury and impairment arose out of an in the course of appellant’s employment and was
causally connected with the above described accident.” Dr. Ellis advised that appellant was not
disabled due to his neck injuries in Office file numbers 06-2191692 or 06-216318, rather, he was
disabled due to his back injury in Office file number 06-214341, involving a July 11, 2005 injury
claim.
In a decision dated January 16, 2008, the Office denied appellant’s claim on the grounds
that the medical evidence was not sufficient to establish that his condition was caused by the
July 12, 2004 accident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained 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
upon a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office 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

2

Id.

3

Gary J. Watling, 52 ECAB 357 (2001).

3

actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7
ANALYSIS
Appellant alleged that he sustained a cervical injury on July 12, 2004 when he twisted his
neck while interviewing a claimant and typing on a keyboard. His supervisor verified that
appellant informed him of the incident that day when he stopped work. The Board finds that the
evidence supports that appellant turned his neck as alleged on July 12, 2004.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant sustained an aggravation of his preexisting left sided disc herniation at C5-6 and C6-7
causally related to the July 12, 2004 incident. On July 18, 2007 the Office advised appellant of
the medical evidence needed to establish his claim. Appellant did not submit a rationalized
medical report from an attending physician addressing how the July 12, 2004 incident caused or
aggravated his claimed condition.
Appellant was treated on July 1, 2004 by Dr. Christakos for an onset of neck pain and
numbness in his left upper extremity. He reported that his symptoms began after using a
computer for a period of time. However, this predates the date of the claimed July 12, 2004
traumatic incident and the physician did not otherwise address how particular factors of
appellant’s employment caused or aggravated his preexisting cervical condition. On July 12,
2004 Dr. Bell noted that appellant presented with a four to six-week history of neck and left arm
pain. He diagnosed ruptured disc at C6-7 and left C7 radiculopathy. However, Dr. Bell did not
note a history of appellant turning his neck at work on July 12, 2004 nor did he explain how
4

Michael E. Smith, 50 ECAB 313 (1999).

5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

4

appellant’s employment activities caused or aggravated the diagnosed medical condition.8 His
contemporaneous reports note that appellant had a preexisting degenerative condition that was
the cause of his symptoms. Therefore, this report is insufficient to meet appellant’s burden of
proof.
Appellant also submitted an October 4, 2007 report from Dr. Ellis, who treated him for
neck and arm injuries which occurred at work on July 12, 2004 and November 14, 2005. He
obtained a history, on July 12, 2004, while working at his terminal, appellant experienced a
sudden, severe pain in his neck down his left arm into his hands. Dr. Ellis opined that
appellant’s injuries were caused by performing repetitive data entry work and sitting in a
nonergonomic position. He noted that appellant conducted three to six interviews per day at
work using a straight keyboard and was required to keep his wrists flexed due to preexisting
nerve impingement injury, which placed increased stress on his neck, upper back and shoulders
and caused a micro tear and degeneration at C6, C7 and C8. The Board finds that, although
Dr. Ellis generally supported causal relationship, he did not adequately explain his opinion
regarding the causal relationship between appellant’s neck condition and the July 12, 2004
incident.9 Dr. Ellis did not explain the process by which sitting at a desk and typing on a
keyboard would cause the diagnosed condition and why such condition would not be due to
nonwork factors or to appellant’s preexisting history of back and neck conditions. His opinion
also indicates that any condition caused by work occurred over a period of time which would be
an occupational disease and not a traumatic injury.10 Dr. Ellis did not render a specific opinion
explaining how the traumatic event on July 12, 2004, when appellant turned his neck while
typing on a keyboard, caused or aggravated a particular condition. He also noted a history of a
November 14, 2005 incident at work. He concluded his report by indicating that appellant’s
disability was not related to the claim that is before the Board, file number 06-2191692, but was
due to a July 11, 2005 injury in file number 06-2145341, a claim that is not before the Board.
Therefore, Dr. Ellis’ opinion is insufficient to meet appellant’s burden of proof.
The remainder of the medical evidence, including an MRI scan of the cervical spine, fails
to provide any opinion on the causal relationship between the July 12, 2004 incident and his
diagnosed condition. The evidence is not sufficient to establish appellant’s claim.11
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
the belief that his condition was caused, precipitated or aggravated by his employment sufficient
to establish causal relationship.12 Causal relationship must be established by rationalized
8

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
9

See Jimmie H. Duckett, supra note 7.

10

See 20 C.F.R. § 10.5(q), (ee) (lists the definitions for occupational disease and traumatic injury).

11

See A.D., supra note 8.

12

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

5

medical opinion evidence. Appellant failed to submit such evidence and the Office therefore
properly denied his claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a traumatic injury on July 12, 2004.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2008 and August 24, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 3, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket No. 16-0445
Issued: May 20, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 21, 2015 appellant filed a timely appeal from July 2, 2015 merit decisions
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to modify a February 5, 2007
wage-earning capacity determination; and (2) whether OWCP properly reduced appellant’s
compensation benefits to zero.
1

The appeal was postmarked December 21, 2015 and received by the Board on January 11, 2016. If the use of
date of delivery would result in a loss of appeal rights, the postmark date is used to determine timeliness. 20 C.F.R.
§ 501.3(f)(1). Since the postmark date is within 180 days of the July 2, 2015 OWCP decision, the appeal is timely
filed. 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has previously been before the Board. Appellant filed an occupational disease
claim (Form CA-2) dated May 21, 1997 alleging that she sustained bilateral carpal tunnel
syndrome as a result of her federal employment as a claims examiner. OWCP accepted the
claim for bilateral carpal tunnel syndrome. Appellant also has a February 1990 claim accepted
for cervical strain. She worked intermittently and then stopped working in December 2000 and
received compensation for wage loss. By decision dated October 21, 2003, OWCP terminated
appellant’s compensation effective November 1, 2003, finding that she refused an offer of
suitable work. The Board reversed the October 21, 2003 decision, finding the evidence did not
establish the offered position of modified claims examiner was medically suitable.3
Appellant returned to work at the employing establishment on July 12, 2005 at 15 hours
per week. As of July 12, 2005, she began receiving partial compensation. By decision dated
January 17, 2007, the Board set aside an August 18, 2005 OWCP decision with respect to the
compensation payable for partial disability.4 The Board indicated that OWCP had not made
proper findings as to the date of injury.
On December 22, 2005 the employing establishment offered appellant a position as a
front desk receptionist. The organizational title was contact representative, and the position was
a GS5, Step 10 position with wages of $36,919.00 annually. Appellant returned to work as a
front desk receptionist on April 3, 2006. By decision dated June 7, 2006, OWCP found that
appellant’s actual earnings of $733.15 per week in the receptionist position fairly and reasonably
represented her wage-earning capacity.
Appellant filed a claim for a recurrence of disability (Form CA-2a) commencing
June 21, 2006. OWCP accepted the claim for a recurrence of disability on August 15, 2006, and
then rescinded that acceptance by decision dated September 14, 2006. By decision dated
February 2, 2007, it determined that appellant was not entitled to compensation based on a
July 12, 2005 pay rate, as this was neither a date of injury nor a date of recurrence of disability.
In a decision dated October 11, 2007, the Board affirmed the June 7, 2006 wage-earning capacity
decision and the February 2, 2007 pay rate OWCP decisions.5
By decision dated February 5, 2007, OWCP again found that the front desk receptionist
position, with earnings of $733.15 per week, represented appellant’s wage-earning capacity. It
reduced appellant’s compensation based on her wage-earning capacity. The calculations used a
pay rate date for compensation purposes of December 12, 2000, when appellant stopped
working.
Appellant filed another claim for a recurrence of disability commencing October 5, 2007.
By decision dated March 17, 2008, OWCP denied modification of the February 5, 2007 wage3

Docket No. 04-0341 (issued November 12, 2004).

4

Docket No. 06-0129 (issued January 17, 2007).

5

Docket No. 07-0938 and No. 07-1493 (issued October 11, 2007).

2

earning capacity determination. The Board affirmed the March 17, 2008 OWCP decision on
December 8, 2008.6 The Board found appellant had not established modification of the loss of
wage-earning capacity based on December 12, 2000 date-of-injury pay rate. As to error in the
February 5, 2007 decision, appellant again had argued that OWCP should have used a pay rate
from July 2005, when she returned to part-time work. The Board noted this was not appropriate
under 5 U.S.C. § 8101(2), and OWCP had properly used a date of December 12, 2000 as a date
of recurrence of disability.
On September 17, 2010 appellant submitted a CA-7 (claim for compensation) for wage
loss from April 2, 2006.7 By decision dated October 27, 2010, OWCP handled the claim as a
request for modification of loss of wage-earning earning capacity and found the evidence
insufficient to warrant modification of the February 5, 2007 wage-earning capacity
determination. An OWCP hearing representative affirmed the October 27, 2010 OWCP decision
in a decision dated May 16, 2011. The hearing representative found there was no medical
evidence of a material change in appellant’s condition, nor was there evidence to support
appellant’s argument that the receptionist job was inappropriate for a wage-earning capacity
determination.
The Board affirmed the hearing representative’s decision on March 15, 2012.8 The
Board found no error in the February 5, 2007 wage-earning capacity determination, noting the
front desk receptionist position was not makeshift or otherwise inappropriate for a wage-earning
capacity determination.
In a report dated April 24, 2014, Dr. Olayinka Ogunro, a Board-certified orthopedic
surgeon, provided results on examination. He opined that appellant could return to a claims
examiner position with four hours of keyboarding and four hours using a voice-activated system.
On January 9, 2015 the employing establishment offered appellant a full-time position as
a claims examiner, with four hours of assisted, voice-activated equipment. The position was a
GS-9, Step 10 position with annual wages of $66,508.00 ($1,279.00 per week), and was
available January 25, 2015.9 Appellant accepted the job offer. The employing establishment
indicated on April 9, 2015 that appellant had been successfully working as a claims examiner.
OWCP requested that the employing establishment provide information regarding the
current salary for a front desk receptionist (GS-5, Step 10). The employing establishment
indicated in a May 12, 2015 e-mail that a GS-5, Step 10 was currently paid $43,899.00 annually
($844.21 per week). With respect to the date-of-injury position, the employing establishment

6

Docket No. 08-1975 (issued December 8, 2008).

7

Appellant was still working at the employing establishment. She submitted a “desk audit evaluation summary”
for the contact representative position, which reflected that as of October 1, 2009 she had been moved from the front
desk location.
8

Docket No. 11-1639 (issued March 15, 2012).

9

The record contains a similar job offer dated January 5, 2015, which reports the wages as $65,850.00.

3

indicated that appellant was a GS-7, Step 8 at the time of the injury, and the current salary was
$51,583.00 annually ($991.98 per week).
By letter dated May 21, 2015, OWCP advised appellant it proposed to modify the
February 5, 2007 wage-earning capacity determination. It found she had been vocationally
rehabilitated and had returned to a new job earning at least 25 percent more than the current
salary for the earlier loss of wage-earning capacity and more than the current salary of her dateof-injury position.
On June 23, 2015 appellant submitted a statement dated June 16, 2015, asserting that she
had not performed the duties of a contact representative. She alleged that she had been
performing makeshift duties according to a desk audit. Appellant resubmitted a copy of a July 7,
2010 desk audit of her work duties.
By decision dated July 2, 2015, OWCP modified the February 5, 2007 wage-earning
capacity determination finding that the current full-time position of claims examiner reflected her
current wage-earning capacity. It found appellant had been employed in a new job, with
additional training, earning at least 25 percent more than the earlier wage-earning position and
more than her date-of-injury position.
In a separate decision dated July 2, 2015, OWCP found the earnings from the present
claims examiner position fairly and reasonably represented appellant’s wage-earning capacity. It
found her current earnings exceeded the current pay rate for the date-of-injury position, and she
therefore had no loss of wage-earning capacity.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.10 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.11
With respect to modification of wage-earning capacity, OWCP’s procedure manual
provides:
“Vocationally Rehabilitated. It may be appropriate to modify the loss of wageearning capacity rating on the grounds that the claimant has been vocationally
rehabilitated if the claimant is employed in a new job (a job different from the job
for which he or she was rated) obtained with additional training which pays at
least 25 percent more than the current pay of the job for which the claimant was
rated.

10

Sue A. Sedgwick, 45 ECAB 211 (1993).

11

Id.

4

(1) If there is evidence of increased earnings as outlined above, and these
earnings have continued for at least 60 days, the claims examiner should:
(a) Determine the duration, exact pay, duties and responsibilities of
the current job.
(b) Determine whether the claimant underwent training or
vocational preparation to earn the current salary.
(c) Assess whether the actual job differs significantly in duties,
responsibilities, or technical expertise from the job at which the
claimant was rated.”
ANALYSIS -- ISSUE 1
In the present case, OWCP issued a February 5, 2007 wage-earning capacity
determination based on the position of desk receptionist/contact representative. It has
determined that appellant was vocationally rehabilitated and modified the wage-earning capacity
determination effective July 2, 2015. The Board finds OWCP met its burden of proof to modify
the wage-earning capacity determination.
The position of claims examiner clearly represented a new job from the desk
receptionist/contact representative position that was the basis for the February 5, 2007 wageearning capacity determination. The job differed significantly in duties and responsibilities. In
addition, appellant clearly underwent retraining as the position required different duties and
extensive use of voice-activated equipment for half of the workday. The employing
establishment indicated that appellant had worked more than 60 days and was successfully
performing the duties of the claims examiner position.
The claims examiner position also paid at least 25 percent more than the contact
representative position. The current wages for the desk receptionist/contact representative
position, a GS-5 Step 10 position, was $43,898.92 per year (or $844.21 per week). The claims
examiner position was a GS-9, Step 10 position, with wages of $66,508.00 per year, or $1,279.00
per week.
The Board accordingly finds OWCP properly found appellant was vocationally
rehabilitated. Appellant was employed in a different job from that job on which the wageearning capacity was originally determined, with significantly different duties and
responsibilities, she was retrained in the position as to working with voice-activated equipment
and had greater than 25 percent increased earnings. OWCP met its burden of proof to modify the
wage-earning capacity determination.
Appellant may request modification of a wage-earning capacity determination supported
by new evidence or argument, at any time before OWCP.

5

LEGAL PRECEDENT -- ISSUE 2
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.12
OWCP procedures indicate that a formal decision cannot be issued until the injured
employee has completed 60 days of employment.13 OWCP’s procedure manual provides
guidelines for determining wage-earning capacity based on actual earnings:
“(1) Type of Appointment. To determine whether the injured employee’s work
fairly and reasonable represents his/her [wage-earning capacity], the [claims
examiner] should consider whether the kind of appointment and tour of duty are
at least equivalent to those of the job held on the [date of injury]. If they are not,
the [claims examiner] should not consider the work representative of the injured
employee’s [wage-earning capacity] unless one of the exceptions noted in subparagraphs (a) or (b) below apply.
(a) Temporary or Casual Employment. Reemployment of a temporary or
casual worker in another temporary or casual position is proper, as long as
it will last at least 90 days.
(b) Part-Time Positions.
(i) A part-time position may form the basis for a [wage-earning
capacity] if the employee was a part-time worker at the time of
injury.
(ii) A part-time position may form the basis for a [wage-earning
capacity] for an employee who was a full-time employee on the
[date of injury] if his/her stable, established work restrictions limit
him/her to part-time work. This policy change is consistent with
the statutory purpose of 5 U.S.C. § 8115 which anticipates [loss of
wage-earning capacity] determinations for partial disability based
on actual earnings where those earnings fairly and reasonably
represent the injured employee’s [wage-earning capacity].”14
It is well established that a position that is considered an odd lot or makeshift position
designed for a claimant’s particular needs is not appropriate for a wage-earning capacity
12

Dennis E. Maddy, 47 ECAB 259 (1995).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity
Based on Actual Earnings, Chapter 2.815.5 (June 2013).
14

Id. at Chapter 2.815.5(c) (June 2013).

6

determination.15 The Board has discussed several factors that may support a finding the offered
position was makeshift in nature. These factors include: (1) the position did not have an official
title or formal position description; (2) there were strict limitations, such as five-pound lifting
and no casing of mail, which indicated that the claimant would not be able to secure a position in
the community at large with such limited duties; (3) the claimant did not perform any meaningful
tasks in the position, and (4) the job appeared to be temporary in nature.16
In addition to a job that is odd lot or makeshift, OWCP procedures identify other
instances where reemployment may not be the basis for a wage-earning capacity: an injured
employee who has been released to full-time work is working less than full-time hours; a job
represents permanent seasonal employment in an area where year-round employment is available
(unless the employee was a career seasonal or temporary employee when injured; and a job that
is temporary where the employee’s job when injured was permanent.17
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,18 has been codified at 20 C.F.R. § 10.403. OWCP
first calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s earnings by the current pay rate for the date-of-injury position.19
ANALYSIS -- ISSUE 2
As previously noted, appellant returned to work as a claims examiner. As of July 2,
2015, she had been working in the position for at least 60 days. The claims examiner position
was a permanent, full-time position with no evidence that it was makeshift or otherwise
inappropriate for a wage-earning capacity determination.
To properly determine the loss of wage-earning capacity, OWCP applies the Shadrick
formula. As noted above, the employee’s current earnings are divided by current pay rate for the
date-of-injury job, and the wage-earning capacity in terms of percentage is calculated.20 In this
case the current earnings were $1,279.00 per week, while the current pay rate for the date-ofinjury job was $991.98 per week. Since current earnings exceed the current date-of-injury job
pay rate, appellant has a 100 percent wage-earning capacity, or zero percent loss of wage-earning
capacity.
Based on the evidence of record, the Board finds OWCP properly reduced appellant’s
compensation to zero.
15

See A.J., Docket No. 10-619 (issued June 29, 2010).

16

Id.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity
Based on Actual Earnings, Chapter 2.815.5(c)(2) (June 2013).
18

5 ECAB 376 (1953).

19

20 C.F.R. § 10.403(d).

20

Id.

7

CONCLUSION
The Board finds that OWCP properly modified the February 5, 2007 wage-earning
capacity. The Board further finds that OWCP properly reduced appellant’s compensation
benefits to zero.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 2, 2015 are affirmed.
Issued: May 20, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 12-746
Issued: May 1, 2012

Case Submitted on the Record

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

JURISDICTION
On February 10, 2011 appellant filed a timely appeal from an August 29, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $3,927.25 for the period May 17 to July 2, 2011; and (2) whether
she was at fault in the creation of the overpayment, and thus, not entitled to waiver of the
overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 1, 2008 appellant, then a 45-year-old clerk, filed an occupational disease
claim for bilateral carpal tunnel syndrome as a result of nine years of keying, holding and boxing
mail. OWCP accepted her claim for bilateral carpal tunnel syndrome. In its December 18, 2008
letter accepting the claim, it advised appellant that she was expected to return to work as soon as
she was able and to notify OWCP once she returned to work. It further informed her that she
was only entitled to compensation if she was unable to work due to her accepted condition and
that she should immediately return any compensation checks received which included payment
for a period during which she returned to work. Appellant received wage-loss compensation for
disability.
On June 23, 2011 OWCP was informed that appellant returned to work full duty on
May 17, 2011. Appellant continued to receive compensation by direct deposit of $2,339.64 for
the periods May 8 to June 4, 2011 and June 5 to July 2, 2011.
On July 21, 2011 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $3,927.25 because she returned to work on
May 17, 2011 but received disability compensation until July 2, 2011. Appellant was found at
fault in creating the overpayment, as she knew or should have known that she was not entitled to
receive compensation for a period after her return to work. The overpayment worksheet stated
that she was paid $2,339.64 for the 28-day period June 5 to July 2, 2011 or $83.558571 a day.
Appellant received the same net amount $2,339.64 for the 28-day period prior to June 5, 2011.
OWCP multiplied the daily rate of $83.558571 by 47, the number of days appellant worked, to
total an overpayment of $3,927.25. OWCP informed appellant that she had 30 days to request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing
on the issues of fault and a possible waiver.
Appellant requested that OWCP make a decision based on the written evidence. She
submitted an overpayment recovery questionnaire, which reported a monthly income of
$2,100.00 and indicated that she had two dependants. Appellant reported $10.00 cash on hand,
$45.00 in her checking account and a savings account balance of $100.22, totaling $155.22. She
listed monthly expenses as $650.00 for rent, $300.00 for food, $200.00 for clothing, $765.00 for
utilities, $475.00 for car payments, $60.00 for personal expenses, $89.00 for a credit union loan,
and $200.00 for a Texas car title loan, totaling $2,739.00. Appellant contended that she was not
at fault in the overpayment because she did not get a payment for six to seven weeks after she
was on workers’ compensation and she submitted all the necessary paperwork before she
returned to work. She submitted earnings and leave statements indicating that she received
$1,488.47 every pay period and various statements and receipts.2

2

Appellant provided a receipt of $48.00 for gas and indicated that she filled up on gas four times a month. She
also submitted a monthly payment slip of $30.78 and $122.15 for a Gerber Life Insurance policy and utility
payments of $26.34 for gas, $437.67 for electricity, and $98.77 for water and sewage. Appellant also had a
statement from Neches Federal Credit Union indicating she had a balance of $166.91 and had taken out a new loan
for $500.00.

2

In an August 29, 2011 memorandum of an August 26, 2011 telephone conference,
appellant was advised to submit further income evidence, copies of her actual bills and a lease
for her rent. She contended that she should be granted a waiver because it was not her fault that
the employing establishment did not notify OWCP immediately when she returned to work.
Appellant also stated that her hours were going to be cut since other postal offices around her
area were closing. When asked if she could pay $50.00 a month, she replied that she could but it
would create a hardship.
In a decision dated August 29, 2011, OWCP finalized the overpayment of $3,927.25. It
found that appellant was at fault in the creation of the overpayment because she accepted
payments which she knew or reasonably should have known to be incorrect. OWCP pointed out
that during the August 26, 2011 conference call she agreed to pay $50.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, she
may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.4 OWCP’s regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents her from earning the wages earned before the work-related injury.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $3,927.25. The record reflects that she returned to work full duty on May 17,
2011 at her regular salary. As noted, FECA and OWCP regulations provide that a claimant may
not receive wage-loss compensation while simultaneously receiving salary or other type of pay
from the United States.6 Computer printouts and overpayment worksheets of record establish
that appellant received compensation in the amount of $3,927.25 for the period May 17 to July 2,
2011 even though she returned to work on May 17, 2011. This resulted in an overpayment of
$3,927.25. Appellant received $2,339.64 every 28 days, during the relevant period, which when
divided by 28, resulted in a daily rate of $83.558571. This daily rate was multiplied by 47 days,
to determine the $3,927.25 amount of overpayment. The Board will affirm the fact and amount
of overpayment in compensation of $3,927.25.

3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

6

5 U.S.C. § 8116(a).

3

LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that an overpayment must be recovered unless
incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or be against equity and good conscience.7 No
waiver of payment is possible if appellant is not without fault in helping to create the
overpayment.8
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have known to
be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.9
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The

7

Id. at § 8129(b).

8

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

9

20 C.F.R. § 10.433(a).

4

degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that she is being overpaid.10
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or reasonably should have known to be incorrect. In cases
where a claimant receives compensation through direct deposit, however, OWCP must establish
that at the time a claimant received the direct deposit in question she knew or should have known
that the payment was incorrect.11 The Board has held that an employee who receives payments
from OWCP in the form of a direct deposit might not be at fault the first time an incorrect
payment is deposited into her account since the acceptance of the overpayment, at the time of
receipt of the direct deposit, lacks the requisite knowledge.12 OWCP’s regulations, effective
August 29, 2011, place claimants on notice that good faith and exercise of a high degree of care
in regard to receipt of benefits require review of electronic bank statements. This regulation does
not diminish the effect of the Board’s previous decisions, as in Tammy Craven,13 that the deposit
of compensation into appellant’ bank account marks the moment that claimant gains control of
the funds from the U.S. Treasury and the overpayment was created. As explained in Craven,
because fault in defined by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that a claimant may not be at
fault for accepting the first incorrect payment because the requisite knowledge is lacking at the
time of deposit. In this case, appellant received two payments electronically for periods ending
10

Id. 20 C.F.R. § 10.433(a) (August 29, 2011) provides as follows:
(a) OWCP may consider waiving an overpayment only if the individual to whom it was made was
not at fault in accepting or creating the overpayment. Each recipient of compensation benefits is
responsible for taking all reasonable measures to ensure that payments he or she receives from
OWCP are proper. The recipient must show good faith and exercise a high degree of care in
regard to receipt of their benefits. Such care includes reporting events which may affect
entitlement to or the amount of benefits, including reviewing their accounts and related statements
(including electronic statements and records from their financial institutions involving EFT
payments). A recipient who has done any of the following will be found to be at fault with respect
to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or
(2) Failed to provide information which he or she knew or should have known to be
material; or
(3) Accepted a payment which the recipient knew or should have known to be incorrect.
(This provision applies only to the overpaid individual.)

11

J.H., Docket No. 11-114 (issued July 18, 2011); R.C., Docket No. 10-2113 (issued July 6, 2011); C.S., Docket
No. 10-926 (issued March 16, 2011).
12

Tammy Craven, 57 ECAB 689 (2006); see also George A. Hirsch, 47 ECAB 520 (1996).

13

Id.

5

June 4 and July 2, 2011. Although appellant accepted the overpayment in this case by gaining
control of the funds deposited into her account, OWCP has not shown that she knew or should
have known at the time of the first electronic deposit of June 4, 2011 that the payment was
incorrect. It has not presented sufficient evidence to establish that she accepted a payment which
she knew or should have known to be incorrect. The Board finds that OWCP improperly
determined that appellant was at fault in the creation of the June 4, 2011 overpayment. The
Board will set aside OWCP’s August 29, 2011 decision on the issues of fault and recovery with
respect to the first June 4, 2011 electronic payment and remand the case for consideration of
waiver based on appellant’s current financial circumstances.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $3,927.25 for
the period May 17 to July 2, 2011 because she received wage-loss compensation after she
returned to work at her regular salary on May 17, 2011. The Board finds that OWCP improperly
found that appellant was at fault in the creation of the overpayment for the first June 4, 2011
electronic payment and will remand the case for consideration of whether waiver of the recovery
of the overpayment is warranted.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside, in part. The case is
remanded for further action consistent with this decision.
Issued: May 1, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Arlington, VA, Employer
)
__________________________________________ )
S.N., Appellant

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

Docket No. 21-0258
Issued: October 19, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 11, 2020 appellant filed a timely appeal from an October 28, 2020 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 binaural hearing
loss causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On January 14, 2020 appellant, then a 55-year-old federal marshal, filed an occupational
disease claim (Form CA-2) alleging that he developed hearing loss due to factors of his federal
employment, including exposure to prolonged excessive noise levels during firearm use as a
1

5 U.S.C. § 8101 et seq.

firearms instructor, and amplified earpieces used in both ears. He indicated that he first became
aware of his condition on October 29, 2019 and first realized that his condition was caused or
aggravated by his federal employment on November 8, 2019. Appellant did not stop work.
In an undated statement, appellant noted that he worked for the employing establishment
as a firearms instructor beginning May 11, 2001. He indicated that he was exposed to occupational
noise while participating in prolonged sessions to train employees on multiple weapon systems
and was exposed to live gun fire and explosions in practical training environments. These
exposures occurred five times per year for 32 hours per week or more, and the frequency had
increased since 2001. Appellant alleged that he was also required to use amplified ear pieces in
both ears to allow for radio communication with other detail members, which resulted in exposure
to intermittent excessive noise levels for periods in excess of 12 hours per day for 45 days at a
time. He contended that he was also exposed to jet engine noise during protective details.
Appellant also confirmed that he did not have a history of any disease, illness, surgery, or trauma
to his ears which would cause or contribute to his hearing loss.
In support of his claim, appellant provided an October 25, 2019 audiometric testing report
from Christine Stokiosa, an audiologist, and an audiogram summary report detailing the results of
hearing tests he underwent with the employing establishment between March 24, 1998 and
October 29, 2019.
In a February 6, 2020 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence necessary and provided a
questionnaire for his completion. In a separate letter of even date, OWCP requested that the
employing establishment address the accuracy of appellant’s allegations and describe his
workplace exposure to hazardous noise. It afforded both parties 30 days to submit the necessary
information.
In a March 11, 2020 response to the hearing loss questionnaire, appellant indicated that he
was a deputy marshal for the employing establishment from June 26, 1988 through May 11, 2001,
during which time he was exposed to noise from firearms six hours per day, three days per year.
From May 11, 2001 and ongoing, he worked as a firearms instructor, and was exposed to noise
from firearms 32 hours per week, five times per year. In connection with each position, appellant
was provided with earmuffs or plugs. He also asserted that he does not engage in any hobbies
outside work that involve loud noise.
In a March 12, 2020 report, Harriet B. Jacobster, Au.D., an audiologist, noted that appellant
related that he was exposed to occupational noise from guns, shotguns, rifles, jet engines, and
radios. She diagnosed sensorineural hearing loss and tinnitus and opined that these conditions
were directly related to noise exposure and acoustic trauma experienced in the course of his
employment. Dr. Jacobster explained that appellant’s exposure to firearms, which can have
decibel (dB) levels as high as 165 dB, can damage the delicate structures of the inner ear over time
causing noise-induced hearing loss. She noted that his audiograms since March 24, 1998
demonstrated a progression of findings consistent with bilateral noise-induced hearing loss.
Dr. Jacobster further explained that her examination on March 10, 2020 was also consistent with
bilateral elevated hearing thresholds consistent with excessive noise exposure.

2

On September 1, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for a second opinion examination with Dr. Stephen Freifeld, a Board-certified
otolaryngologist, in order to determine whether appellant’s work-related noise exposure was
sufficient to have caused hearing loss, and if so, the extent and degree of his hearing loss. In a
report dated September 23, 2020, Dr. Freifeld noted his review of the SOAF, performed an
audiological evaluation, and completed OWCP’s evaluation questionnaire. He discussed
appellant’s medical records including prior audiograms, and reported that his physical examination
revealed normal ear canals and tympanic membranes. Dr. Freifeld reviewed an audiogram
performed that day, which demonstrated at 500, 1,000, 2,000, and 3,000 Hertz losses of 15, 25,
25, and 45 dBs in the left ear, respectively, and 15, 20, 25, and 30 dBs in the right, respectively.
He diagnosed bilateral sensorineural hearing loss and mild subjective bilateral tinnitus, which he
concluded was more likely due to the effects of presbycusis rather than due to any occupational
noise exposure. Dr. Freifeld noted that appellant’s exposures were intermittent in nature, and
therefore much less damaging than chronic noise. He further indicated that appellant’s exposures
were made less intense by the use of appropriate ear protection. Dr. Freifeld noted that appellant
reported ringing in his ears at times, which suggested that the hearing protection was not fully
effective. However, that, if that were the case, he reported that it went away shortly thereafter
which was indicative of a temporary threshold shift which would not directly impact his overall
hearing. Dr. Freifeld explained that the configuration of hearing loss on the audiograms was not
consistent with the type of hearing loss that occurs from chronic environmental noise exposure.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),2 he found that appellant had zero percent monaural
hearing loss on the right and 3.8 percent monaural hearing loss on the left.
By decision dated October 28, 2020, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish that his diagnosed binaural
hearing loss was causally related to the accepted workplace noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 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 re lated to the

2

A.M.A., Guides (6 th ed. 2009).

3

Supra note 1.

4

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

3

employment injury. 5 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. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 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 specific employment factors identified by the employee. 9
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that he developed binaural hearing loss due to noise exposure during the
course of his federal employment. He noted that he was exposed to hazardous noise from firearms,
explosives, jet engine noise, and amplified earpieces.
In a September 23, 2020 second opinion report, Dr. Freifeld diagnosed bilateral
sensorineural hearing loss and mild subjective bilateral tinnitus, but concluded the conditions were
more likely due to the effects of presbycusis rather than due to any occupational noise exposure.
In support of this conclusion, he explained that appellant’s exposures were intermittent in nature
and therefore much less damaging than chronic noise. Dr. Freifeld opined that the exposures were
made less intense by the use of appropriate ear protection , but acknowledged that appellant
reported ringing in his ears at times, which suggested that the hearing protection was not fully
effective. He opined that, if that were the case, he reported that it went away shortly thereafter
which was indicative of a temporary threshold shift which would not directly impact his overall
hearing.

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345, 352 (1989).

4

In a development letter dated February 6, 2020, OWCP requested that the employing
establishment address the accuracy of appellant’s allegations and describe his workplace exposure
to hazardous noise. It specifically requested that the employing establishment provide detailed
information, including dB level and frequency for each jobsite, the period of exposure including
hours per day and days per week, and the type of ear protection provided . The employing
establishment, however, did not respond to OWCP’s February 6, 2020 development letter.
The Board finds that OWCP must further develop the factual aspect of this record. The
record reflects that the information regarding the frequency, duration, and dB level of appellant’s
exposures to hazardous noise is incomplete and at times inconsistent. Accordingly, OWCP must
develop this factual aspect of the case before a full and fair determination can be made regarding
causal relationship. 10
It is well established that, proceedings under FECA are not adversarial in nature and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other government source. 11
OWCP has an obligation to see that justice is done. 12
On remand it should obtain noise exposure data from the employing establishment and
provide this information to Dr. Freifeld for a supplemental report.13 Following this and other such
development deemed necessary, OWCP shall issue a de novo decision in the case.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

See J.V., Docket No. 17-0973 (issued July 19, 2018).

11

See D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff,
8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).
12

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4, 2.800.7,
2.800.8, and 2.800.10 (June 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6