United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 13-695
Issued: August 27, 2013

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 February 5, 2013 appellant, through her attorney, filed a timely appeal from an
October 19, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying modification of a loss of wage-earning capacity determination. 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 met her burden of proof to establish that modification of
an April 21, 2010 loss of wage-earning capacity determination is warranted.
FACTUAL HISTORY
On January 18, 2008 appellant, then a 42-year-old full-time transitional mail carrier,
sustained injury to her right shoulder when she fell down icy steps while delivering mail. OWCP
1

5 U.S.C. § 8101 et seq.

accepted her claim for right rotator cuff tear and authorized arthroscopic surgery on
September 24, 2008. Appellant stopped work on January 19, 2008.
On January 24, 2008 appellant came under the treatment of Dr. John T. Kroner, a Boardcertified orthopedic surgeon. On September 24, 2008 Dr. Kroner performed a right shoulder
arthroscopy with partial rotator cuff tear debridement and subacromial decompression. In
reports dated October 6, 2008 to March 12, 2009, he noted that appellant was making slow,
steady progress postoperatively and recommended physical therapy. Dr. Kroner noted
performing subacromial injections to improve range of motion and recommended a work
conditioning and hardening program. He returned appellant to full-time limited duty on
November 24, 2008. A January 29, 2008 magnetic resonance imaging (MRI) scan of the right
shoulder revealed a partial undersurface posterior supraspinatus tear with anterior supraspinatus
bursal-sided cuff fraying. In a May 8, 2009 report, Dr. Kroner advised that appellant had a 50pound maximum lift/push/pull restriction as well as restrictions on reaching or lifting over chest
height.
On April 21, 2009 OWCP referred appellant to vocational rehabilitation as the employing
establishment could not accomodate her restrictions. In a May 22, 2009 rehabilitation plan, the
counselor recommended a 90-day job placement plan and noted that appellant could perform
light sedentary work. A rehabilitation plan was prepared and approved by the rehabilitation
counselor with the objective of obtaining a job as a mortgage loan interviewer or a claims clerk I.
The counselor noted that appellant had a high school diploma, prior work and experience as a
loan originator and realtor; however, her loan originator license expired in 2006. Appellant was
taking college courses in pursuit of a Bachelor’s degree in business. The average annual salary
for a mortgage loan interviewer was $657.50 per week. The counselor stated that the jobs were
within appellant’s educational capabilities and were reasonably available in her commuting area.
The counselor attached job classification for the positions.
The rehabilitation counselor’s vocational evaluation and survey of the local labor market
revealed a wage-earning capacity of $657.50 per week for the position of mortgage loan
interviewer. OWCP advised appellant that, at the end of the rehabilitation program, whether
employed or not, it would reduce her monetary compensation. In a December 2, 2009 status
report, the rehabilitation counselor noted that appellant returned to work part time as an
accounting assistant at a restaurant earning $10.00 per hour, 20 hours per week. The counselor
noted that the job effort continued as the medical evidence supported appellant’s ability to work
full time. If a full-time position was not obtained, she would be rated on one of the identified
target jobs. In a February 2, 2010 status report, the rehabilitation counselor noted that appellant
was granted a 30-day extension from February 2 to March 2, 2010 to locate full-time work. In a
March 2, 2010 status report, the counselor advised that appellant was unsuccessful in obtaining
full-time work and the case was being closed.
On March 11, 2010 OWCP proposed to reduce monetary compensation finding that the
evidence established that appellant was partially disabled and had the capacity to earn wages as a
mortgage loan interviewer, DOT # 241.367.018, at the rate of $657.50 per week. It referenced
the rehabilitation counselor’s reports which determined that she was employable as a mortgage
loan interviewer. OWCP noted that the job constricted position was consistent with Dr. Kroner’s
physical restrictions.
2

Appellant submitted an April 8, 2010 letter and disagreed with the proposed reduction of
compensation. She contended that, although she had the capacity to earn wages as a mortgage
loan originator or interviewer, the position required a state license. Appellant held a valid real
estate license. She asserted that the majority of the positions were paid on a commission basis
and not on an hourly wage. Appellant’s rehabilitation counselor advised that she was only
eligible for hourly wage jobs. She requested that she be permitted to attend school full time to
obtain a degree. Appellant submitted pay stubs from the restaurant at which she worked part
time.
In an April 21, 2010 decision, OWCP reduced appellant’s compensation to reflect her
wage-earning capacity as a mortgage loan interviewer.
On September 29, 2010 appellant requested reconsideration. She contended that she had
not worked as a loan originator since 2006 and her license expired in December 2006. Appellant
had a real estate license but had not sold property in over two years. She reiterated that the
position was paid on a commission basis and her counselor advised that she was only eligible for
hourly wage jobs. Although OWCP determined that the position of a mortgage loan interviewer
was medically and vocationally suitable, but it was not obtainable without a valid state license.
Appellant again requested a return to school to obtain a degree or get a license. She submitted an
April 8, 2010 letter to OWCP, previously of record and pay stubs dated April 10 and 24, 2010.
A May 4, 2010 letter from appellant’s employer, noted that she was terminated that day for
failure to timely file a tax form with the state which resulted in the restaurant incurring a
financial penalty. Appellant submitted a June 29, 2010 letter to OWCP requesting that her
monthly pay be increased as she was terminated from her part-time job on May 4, 2010.
In a November 2, 2010 decision, OWCP denied appellant’s reconsideration request
finding that it was insufficient to warrant merit review of the prior decision.2 Appellant appealed
to the Board and, in a December 12, 2011 order remanding case, the Board set aside the
November 2, 2010 decision. The Board found that appellant’s September 29, 2010 request for
reconsideration was a request for modification of the April 21, 2010 wage-earning determination.
The Board directed OWCP to adjudicate appellant’s request for modification of the wageearning capacity determination.3
On February 13, 2012 OWCP advised appellant to submit medical evidence if she
believed she sustained a change in the nature and extent of her injury-related condition. It also
noted that, to the extent that appellant alleged the original wage-earning capacity determination
was erroneous, she should submit supporting argument or evidence. No additional information
was submitted.
In a decision dated March 27, 2012, OWCP denied modification of the April 21, 2012
wage-earning capacity determination.

2

On December 8, 2010 OWCP granted appellant a schedule award for three percent impairment of the right arm.
In a July 5, 2011decision, an OWCP hearing representative affirmed the schedule award decision.
3

Docket No. 11-591 (issued December 12, 2011).

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On April 4, 2012 appellant requested a telephonic oral hearing which was held on
July 11, 2012. At the hearing, her attorney stated that the matter was a medical question. In a
July 2, 2012 treatment note, Dr. Kroner examined appellant’s right shoulder. He stated that
appellant related that OWCP asked her to have a reevaluation. Appellant reported that her
condition was basically status quo, but maybe a little worse than her last visit two years ago. On
examination, Dr. Kroner found full range of motion, positive impingement, some discomfort and
weakness with external rotation, no atrophy of the shoulder girdle with some tenderness over the
acromioclavicular joint. He opined that appellant’s condition was “status quo” and noted that
she had five percent impairment for residuals from her surgery. Dr. Kroner advised appellant to
return for additional treatment if she felt her symptoms worsened. Also submitted was July 6,
2012 work capacity evaluation from Dr. Kroner who noted that appellant reached maximum
medical improvement and could return to work with restrictions to avoid reaching above the
shoulder and pushing, pulling and lifting limited to 50 pounds.
In a decision dated October 19, 2012, an OWCP hearing representative affirmed the
decision dated March 27, 2012.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 OWCP’s procedure manual provides that, if a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss.6 In this instance
the claims examiner will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.7
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.8 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.9

4

D.M., 59 ECAB 164 (2007).

5

Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H. Merritt, 11 ECAB 64 (1959).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
7

Federal (FECA) Procedure Manual, supra note 6. See Harley Sims, Jr., 56 ECAB 320 (2005).

8

See D.M., supra note 4; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).
9

Id.; Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

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ANALYSIS
OWCP accepted that appellant sustained a right rotator cuff tear and authorized
arthroscopic surgery on September 24, 2008 as a result of the January 19, 2008 work injury. On
April 21, 2010 it found that appellant could perform the duties of a mortgage loan interviewer
and reduced her monetary compensation to reflect her wage-earning capacity. The question is
whether she established that the April 21, 2010 wage-earning capacity decision should be
modified. Appellant must establish either that the determination was erroneous or a change in
her condition that would render her unable to perform those duties.10 For a medical opinion to be
relevant on this issue, the physician must address the duties of the constructed position.11 The
medical evidence submitted by appellant does not establish that she is not capable of performing
the duties of the selected position.
Appellant did not allege she had been retrained or otherwise vocationally rehabilitated
and there is no evidence presented that shows that the original wage-earning capacity
determination was, in fact, erroneous. She has contended that the medical evidence established
that she was no longer able to work due to persistent problems with her right shoulder.
Appellant asserted that after surgery she returned to work part time but continued to have a
burning sensation in her right shoulder which prevented her from working full time. The Board
finds that the record does not contain adequate medical evidence establishing that her accepted
work-related right rotator cuff tear had materially changed such that it rendered her unable to
perform the mortgage loan interviewer duties.
Dr. Kroner’s July 2, 2012 treatment note found a full range of shoulder motion on
examination, positive impingement, some discomfort and weakness with external rotation with
tenderness over the acromioclavicular joint. He opined that appellant’s condition was “status
quo.” In a July 6, 2012 work capacity evaluation, Dr. Kroner noted that appellant had
restrictions on reaching above the shoulder and pushing, pulling and lifting limited to 50 pounds.
These restrictions were the same as set forth in his May 8, 2009 report which OWCP found were
consistent with the duties of the selected mortgage loan interviewer position. Dr. Kroner did not
specifically address appellant’s ability to perform the duties of the selected position but indicated
that her condition and restrictions remained the same. He did not support a material change in
the accepted condition shoulder, but maintained the same restrictions that were in place before
the April 21, 2010 wage-earning capacity determination. Therefore Dr. Kroner’s reports are
insufficient to meet appellant’s burden of proof.
The Board finds that there is no medical evidence to establish a change in appellant’s
employment-related condition such that a modification of OWCP’s wage-earning capacity
determination would be warranted. The evidence from Drs. Kroner does not establish that the
position of mortgage loan interviewer is outside her physical limitations. Appellant did not
establish a basis for modification of the wage-earning capacity by submitting evidence
establishing that she had been retrained or otherwise vocationally rehabilitated.
10

Phillip S. Deering, 47 ECAB 692 (1996).

11

Id.

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Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly denied modification of the established April 21,
2010 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 19, 2012 is affirmed.
Issued: August 27, 2013
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
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 13-693
Issued: September 16, 2013

Case Submitted on the Record

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

JURISDICTION
On February 5, 2013 appellant, through his attorney, filed a timely appeal from a
September 26, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
affirming the denial of his schedule award claim. 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 is entitled to a schedule award for left lower extremity
impairment related to his accepted spinal injury.
On appeal, counsel contends that the August 31, 2010 report from impartial medical
examiner, Dr. George P. Glenn, Jr., a Board-certified orthopedic surgeon, is insufficient to
establish a zero percent impairment rating of appellant’s left lower extremity.
1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 53-year-old sheet metal mechanic, sustained an
aggravation of degenerative disc disease at L3-4 as a result of a trip and fall in the performance
of duty on January 14, 2002. It authorized physical therapy. Appellant retired from the
employing establishment effective January 3, 2003.
OWCP referred appellant to Dr. Jatinkumar Gandhi, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine the nature and extent of his employmentrelated condition. In his September 24, 2002 report, Dr. Gandhi reviewed a statement of
accepted facts, appellant’s medical history and records and conducted a physical examination.
He diagnosed degenerative disc disease of the lumbar spine with disc herniation of L5-S1 and
spinal stenosis. Dr. Ghandi did not find any lower extremity neurologic deficits. He opined that
appellant was able to perform light-duty work with restrictions on bending and lifting no more
than 15 pounds. On October 9, 2002 Dr. Gandhi indicated that appellant had previous lower
back problems. He opined that the employment injury aggravated appellant’s preexisting back
problems regarding the L5-S1 herniated disc, noting that it could be a permanent aggravation.
On September 27, 2002 appellant underwent a functional capacity evaluation, which
showed that his level of ability was below sedentary.
Appellant submitted a May 20, 2004 report from Dr. Thomas P. McMahon, a Boardcertified internist, regarding his bilateral shoulder conditions. He also submitted x-ray and
magnetic resonance imaging (MRI) scan reports of the right shoulder dated December 1, 2005
and a November 9, 2005 electromyography (EMG) of the upper extremities in relation to
possible carpal tunnel syndrome.
On April 24, 2009 appellant, through his attorney, filed a claim for a schedule award and
submitted a February 19, 2009 report from Dr. Nicholas Diamond, an osteopathic family
practitioner, who reviewed his medical history and records and conducted a physical
examination. Dr. Diamond described weakness involving the musculature of the hip and found
that appellant had reached maximum medical improvement on February 19, 2009. Using the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides), he determined that appellant had a 55 percent
permanent impairment of the right upper extremity, a 53 percent permanent impairment of the
left upper extremity and a 26 percent impairment of the left lower extremity due to his federal
employment.
On June 7, 2010 Dr. Henry J. Magliato, an OWCP medical adviser, reviewed
Dr. Diamond’s February 19, 2009 report and concluded that his findings in the left lower
extremity seemed out of proportion to the accepted condition of aggravation of degenerative disc
disease in the lumbar spine. He explained that the bulging or protruding disc at L5-S1 would not
affect the femoral and the obturator and superior gluteal nerves, noting that at the most it would
affect part of the sciatic nerve distribution which was not included in Dr. Diamond’s
calculations.
OWCP found a conflict in medical opinion between Drs. Diamond, Gandhi and Magliato
and referred appellant to Dr. Glenn for an impartial medical examination. In his August 31,
2

2010 report, Dr. Glenn reviewed a statement of accepted facts, appellant’s medical history and
records and conducted a physical examination. The neurological examination revealed active
and asymmetrical patellar and Achilles’ reflexes. There were no areas of muscle fasciculation
and muscle strength testing proved perfectly normal throughout both lower extremities. He
noted appellant’s history of a fractured ankle treated surgically with immobilization. Dr. Glenn
indicated that appellant had problems referable to his low back prior to the slip and fall incident
of January 14, 2002 and his radiographic findings were consistent with preexisting multilevel
degenerative disc disease. He found no evidence of any residual neurological deficits involving
either lower extremity. Specifically, Dr. Glenn could not substantiate the weakness involving the
musculature of the hip as described by Dr. Diamond on February 19, 2009 and noted that
Dr. Ghandi did not find any lower extremity neurologic deficits in his September 24, 2002
report. Based on the sixth edition of the A.M.A., Guides, he concluded that appellant did not
have any permanent impairment to the lower extremities causally related to the January 14, 2002
employment injury.
In a December 17, 2010 supplemental report, Dr. Glenn stated that in all categories of the
regional grid appellant would be placed in Class 0, which equates to zero percent permanent
impairment of the left lower extremity. Utilizing Table 16-52 on page 515 of the A.M.A.,
Guides, he stated that appellant’s functional history would indicate severe problems and be a
grade modifier 3, however, the physical examination and clinical findings were basically normal
or grade modifier 0 and did not substantiate the functional history. Citing to page 516, Dr. Glenn
indicated that, if the grade for functional history differed by two or more grades from that
defined by physical examination or clinical studies, the functional history should be assumed to
be unreliable and excluded from the grading process. Under Table 16-73 and Table 16-8,4 he
opined that appellant fell within grade modifier 0 for no consistent findings and, consequently,
had no lower extremity impairment.
On June 6, 2011 OWCP’s medical adviser, Dr. Andrew A. Merola, reviewed the medical
evidence of record with special reference to Dr. Glenn’s August 31, 2010 report. He concurred
with Dr. Glenn’s opinion that appellant had zero percent permanent impairment to the left lower
extremity and indicated that the date of maximum medical improvement was August 31, 2010,
the date of Dr. Glenn’s examination.
By decision dated April 23, 2012, OWCP denied appellant’s schedule award claim on the
basis that the medical evidence did not establish a ratable impairment of a scheduled member.
On April 30, 2012 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative, which was held on August 13, 2012.

2

Table 16-5, page 515 of the sixth edition of the A.M.A., Guides is entitled Adjustment Grid: Summary.

3

Table 16-7, page 517 of the sixth edition of the A.M.A., Guides is entitled Physical Examination Adjustment -Lower Extremities.
4

Table 16-8, pages 519-520 of the sixth edition of the A.M.A., Guides is entitled Clinical Studies Adjustment -Lower Extremities.

3

By decision dated September 26, 2012, OWCP’s hearing representative affirmed the
April 23, 2012 decision denying appellant’s claim for a schedule award.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim, including that she sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.5
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.9 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.10 A schedule award is not
payable under section 8107 of FECA for an impairment of the whole person.11
A schedule award is not payable for a member, function or organ of the body not
specified in FECA or in the implementing regulations.12 As neither FECA nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.13 However, as FECA makes provision for the
5

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.

9

FECA Bulletin No. 09-03 (issued March 15, 2009).

10

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(3) (September 1995). This portion of OWCP procedure provides that the
impairment rating of a given scheduled member should include any preexisting permanent impairment of the same
member or function.
11

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

12

See Tania R. Keka, 55 ECAB 354 (2004).

13

See id. FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

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extremities, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originates in the spine, if the medical
evidence establishes impairment as a result of the employment injury.14
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. 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.15
ANALYSIS
The Board finds that the medical evidence fails to establish that appellant sustained any
permanent impairment to a scheduled member of the body. OWCP accepted appellant’s claim
for aggravation of degenerative disc disease at L3-4. Although appellant may not receive a
schedule award for permanent impairment to his back,16 he may be entitled to a schedule award
for any permanent impairment to his left lower extremity, provided the medical evidence
establishes such impairment.17 However, the medical evidence of record does not establish that
he sustained permanent impairment to the left lower extremity due to the accepted spinal injury.
The Board finds that OWCP properly relied on a June 6, 2011 report from Dr. Merola, an
OWCP medical adviser who, based on the clinical findings of the impartial medical specialist
Dr. Glenn, concluded that appellant had no permanent impairment of a scheduled member under
the sixth edition of the A.M.A., Guides. Dr. Merola properly reviewed the medical record and
found no basis for rating impairment to a scheduled member of the body.18 He reviewed an
August 31 and December 17, 2010 assessment of Dr. Glenn, a Board-certified orthopedic
surgeon serving as an impartial medical specialist. Dr. Merola noted that Dr. Glenn found no
evidence of any residual neurological deficits involving either lower extremity and concluded
that based on the sixth edition of the A.M.A., Guides appellant had no permanent impairment to
the left lower extremity causally related to the January 14, 2002 employment injury. OWCP’s
medical adviser properly concluded that there was no medical evidence of impairment to the left
lower extremity resulting from the accepted spinal injury and, therefore, there was no ratable
14

See George E. Williams, 44 ECAB 530 (1993). In 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by the schedule
regardless of whether the cause of the impairment originated in a scheduled or nonscheduled member.
15

See Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

16

5 U.S.C. § 8101(19); James E. Mills, 43 ECAB 215 (1991).

17

See George E. Williams, supra note 14.

18

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.5(c) (September 1995); Richard R. LeMay, 56 ECAB 341 (2006).

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impairment of a scheduled member under the sixth edition of the A.M.A., Guides. In his
December 17, 2010 reports, Dr. Glenn stated that in all categories of the regional grid appellant
would be placed in class 0, which equates to zero percent permanent impairment of the left lower
extremity. Utilizing Table 16-5 on page 515 of the A.M.A., Guides, he stated that appellant’s
functional history would indicate severe problems and be a grade modifier 3, however, the
physical examination and clinical findings were basically normal or grade modifier 0 and did not
substantiate the functional history. Citing to page 516, Dr. Glenn indicated that, if the grade for
functional history differed by two or more grades from that defined by physical examination or
clinical studies, the functional history should be assumed to be unreliable and excluded from the
grading process. Under Table 16-7, on page 517, and Table 16-8, on pages 519-20, of the
A.M.A., Guides he opined that appellant fell within grade modifier 0 for no consistent findings
and, consequently, had no lower extremity impairment. As Dr. Glenn was selected as the
impartial medical specialist to resolve the issue of extent and degree of any employment-related
impairment, his report constitutes the special weight of the medical evidence.
Appellant submitted a May 20, 2004 report from Dr. McMahon regarding his bilateral
shoulder conditions, x-ray and MRI scan reports dated December 1, 2005 and a November 9,
2005 EMG of the upper extremities in relation to possible carpal tunnel syndrome. OWCP has
not accepted an upper extremity condition in this case. Thus, the Board finds that this medical
evidence is irrelevant and insufficient to meet appellant’s burden of proof to establish a schedule
award claim.
Appellant did not submit sufficient medical evidence to establish that he sustained a
permanent impairment to a specified member, organ or function of the body listed in FECA or its
implementing regulations. As he has not established any ratable left lower extremity impairment
related to his accepted spinal injury, the Board finds that appellant did not meet his burden of
proof to establish entitlement to a schedule award.
On appeal, counsel contends that the August 31, 2010 report from Dr. Glenn is
insufficient to establish a zero percent impairment rating of appellant’s left lower extremity. For
the reasons stated above, the Board finds that the attorney’s arguments are not substantiated.
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 is not entitled to a schedule award for left lower extremity
impairment related to his accepted spinal injury.

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ORDER
IT IS HEREBY ORDERED THAT the September 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEW YORK REGIONAL OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 19-1824
Issued: April 3, 2020

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 August 23, 2019 appellant filed a timely appeal from a February 25, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated February 22, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 25, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 24, 2017 appellant, then a 41-year-old veterans’ service representative, filed a
traumatic injury claim (Form CA-1) alleging that on January 18, 2017 he injured his neck and
tailbone when he attempted to sit down and his chair slipped and he fell hitting the base of his
“tailbone/back” while in the performance of duty. On the reverse side of the claim form the
employing establishment noted that he stopped work on January 18, 2017 and resumed work on
January 25, 2017.
Appellant was treated at an employing establishment facility on January 19, 2017 and was
held off work for two days. A January 23, 2017 follow-up note containing an illegible signature
indicated that appellant’s diagnosis was mild cervical spine degenerative disc disease after a fall.
February 2, 2017 urgent care notes signed by Dr. Herman Chiu, Board-certified in internal
medicine, indicated that appellant fell at work and presented with back pain, neck pain, right leg
weakness, and intermittent loss of bowel sphincter function. Appellant related that he had a prior
back injury from military service, a herniated disc, and a hemangioma near his spine. Dr. Chui
conducted a physical examination and diagnosed lumbago, muscles spasms, and neuropathy.
February 6, 2017 urgent care notes signed by Dr. Faika Khan, an osteopath Board-certified
in family medicine, indicated that appellant had a history of a herniated disc and back pain due to
a prior injury. Dr. Khan conducted a physical examination and diagnosed neuropathy, muscle
spasms, and lumbago.
A February 15, 2017 medical report from Dr. Eial Faierman, a Board-certified orthopedic
surgeon, indicated that appellant presented with pain in his right hip radiating into his groin and
bilateral upper and lower radiculopathy. Dr. Faierman reviewed appellant’s history of injury and
noted that he injured his lower back in 2006. Appellant related that his recent workplace injury
exacerbated his prior lower back injury. Dr. Faierman conducted a physical examination and
diagnosed cervical and lumbar spine strains. He opined that, if appellant’s medical history was
accurate, there was a causal relationship between appellant’s complaints and his most recent injury.
In an April 13, 2017 development letter, OWCP indicated that when appellant’s claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work and,
based on these criteria and because the employing establishment did not controvert continuation
of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It explained that it reopened the claim for consideration because the
medical bills exceeded $1,500.00. OWCP related that additional evidence was required in support
of appellant’s claim for benefits. It requested additional factual and medical evidence and attached
a questionnaire for his completion. OWCP afforded appellant 30 days for a response.

2

Numerous diagnostic studies dating from February 17, 2015 to May 30, 2017 were
submitted to the record.
January 19, 2017 emergency room records by Dr. Shujun Xia, Board-certified in
emergency medicine, indicated that appellant fell at work and complained of back pain.
Appellant’s history of lumbosacral radiculopathy was listed, a physical examination was
conducted, and he was diagnosed with back pain. January 26, 2017 emergency room records
signed by Dr. Xia indicated that he conducted a physical examination and diagnosed persistent
lower back pain, which he noted that appellant started experiencing after his workplace fall.
An April 13, 2017 medical report from Dr. Faierman indicated that appellant complained
of neck and back pain. Dr. Faierman reviewed appellant’s recent magnetic resonance imaging
(MRI) scans of the thoracic and cervical spines and electromyograms (EMGs), and nerve
conduction velocity (NCV) studies, conducted a physical examination, and diagnosed a cervical
spine strain, C5-6 disc herniation, C3-4 and C6-7 disc bulges, a lumbar spine strain/degenerative
changes, and a T6-7 disc herniation.
An April 27, 2017 medical report by Dr. Ralph Napolitano, a chiropractor, indicated that
appellant presented with neck and back pain. Dr. Napolitano noted that appellant’s computerized
tomography (CT) scan and x-rays were positive for subluxation and disc herniation. He noted that
on January 24, 2017 appellant returned to work and reinjured himself when lifting up a box.
Dr. Napolitano conducted a physical examination and diagnosed segmental and somatic
dysfunction of the cervical, thoracic, and lumbar regions. He opined that appellant’s January 18,
2017 workplace fall caused the subluxation in his cervical and thoracic spine and aggravated his
preexisting lumbar spine injury.
On May 10, 2017 appellant signed OWCP’s questionnaire’s statement of certification and
provided answers to its questions.
By decision dated June 22, 2017, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record failed to establish a causal relationship between his diagnosed
conditions and the accepted January 18, 2017 employment incident. It concluded that the
requirements had not been met to establish an injury or condition causally related to the accepted
employment incident.
OWCP continued to receive medical evidence. A May 30, 2017 medical report by Dr. Tim
Canty, Board-certified in pain medicine, indicated that appellant presented with neck and back
pain, which started after his work injury. A physical examination was conducted by Dr. Canty
who diagnosed displacement of cervical intervertebral disc, cervical radiculitis, thoracic spine
pain, thoracic spine sprain, thoracic spine strain, thoracic or lumbosacral neuritis or radiculitis, and
myalgia. Appellant continued to follow up with Dr. Canty who continued to diagnose
displacement of cervical intervertebral disc, cervical radiculitis, thoracic spine pain, thoracic spine
sprain, thoracic spine strain, thoracic or lumbosacral neuritis or radiculitis, and myalgia.
A June 12, 2017 medical report by Dr. Faierman indicated that appellant presented with
back pain with lower extremity radiculopathy and neck pain with right extremity radiculopathy.
Dr. Faierman repeated the same diagnoses as in his previous report. Appellant continued to follow

3

up with Dr. Faierman regarding his neck and back pain, and Dr. Faierman continued to diagnose
appellant with the same diagnoses of a cervical spine strain/C5-6 disc herniation, C3-4 and C6-7
disc bulges, a lumbar spine strain/degenerative changes, and T6-7 disc herniation.
A June 26, 2017 “ancillary medical report” by Dr. Richard DeNise, a Board-certified
radiologist, diagnosed segmental and somatic dysfunction of the cervical and lumbar regions after
interpreting various ultrasounds.
On October 3, 2017 appellant requested reconsideration. By decision dated February 22,
2018, OWCP denied modification of its June 22, 2017 decision.
On February 19, 2019 appellant requested reconsideration. By decision dated February 25,
2019, OWCP denied his reconsideration request.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application. 3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 4
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 7

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3); see also B.W., Docket No. 18-1259 (issued January 25, 2019).

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
6

Id. at § 10.608(a); see also A.P., Docket No. 19-0224 (issued July 11, 2019).

7

Id. at § 10.608(b); A.G., Docket No. 19-0113 (issued July 12, 2019).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his timely reconsideration request, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, nor did he advance a new and relevant argument not
previously considered. Accordingly, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
Appellant failed to submit any evidence in support of his request for reconsideration.
Therefore, OWCP was not required to open his claim for reconsideration of the merits in
accordance with the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
As appellant’s request for reconsideration did not meet any of the three requirements
enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied his
request for reconsideration without reopening the case for review on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

5

ORDER
IT IS HEREBY ORDERED THAT the February 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 3, 2020
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
GENERAL SERVICES ADMINISTRATION,
JACOB K. JAVITS FEDERAL BUILDING,
New York, NY, Employer
__________________________________________

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

Docket No. 11-2065
Issued: May 7, 2012

Case Submitted on the Record

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

JURISDICTION
On September 13, 2011 appellant filed a timely appeal from a March 22, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). She also filed a timely
appeal from an August 17, 2011 decision finding that she abandoned her request for a hearing.
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.
ISSUES
The issues are: (1) whether appellant met her burden to establish that she is entitled to
wage-loss compensation for the period June 17, 2009 to May 10, 2010; and (2) whether appellant
abandoned her request for an oral hearing, which was scheduled for August 2, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 17, 2009 appellant, then a 40-year-old contracting officer, injured her right foot
when she slipped on a wet floor in the performance of duty. She filed a Form CA-1 for traumatic
injury and continuation of pay (COP) on that day. In a January 27, 2010 report, Dr. John L.
Zboinski, a podiatrist, examined appellant and observed pain, antalgic gait, edema and point
tenderness to the third and fourth metatarsals and toes. He pointed out that these findings
remained consistent since July 13, 2009. Dr. Zboinski diagnosed right foot sprain/strain and
possible ligamentous disruption and attributed the condition to the June 17, 2009 employment
incident. His previous August 19 and December 16, 2009 notes advised that appellant was not
disabled and resumed full-time work. A November 30, 2009 note from Dr. Moris B. Girgis, a
Board-certified family practitioner, released her to work effective December 3, 2009.2 By
decision dated April 30, 2010, OWCP accepted appellant’s traumatic injury claim for right foot
sprain.3
On May 10, 2010 appellant filed a Form CA-7 claim for intermittent disability
compensation for the period June 17, 2009 to May 10, 2010. She specified in an appended Form
CA-7a time analysis form that she claimed compensation for 20 hours of leave without pay
(LWOP) taken on June 26 and 29 and November 17, 2009.4
In a May 5, 2010 note, Dr. Zboinski related that appellant continued to exhibit right foot
symptoms. He assessed that she was partially disabled and limited to light duty. A July 7, 2010
magnetic resonance imaging (MRI) scan obtained by Dr. Vidya Malhotra, a Board-certified
diagnostic radiologist, showed mild degenerative changes of the first metatarsophalangeal and
interphalangeal joints and Morton’s neuroma affecting the third interspace. Subsequent followup notes from Dr. Zboinski dated July 14, August 25, October 13 and November 24, 2010,
determined that appellant was not disabled.
OWCP informed appellant in a January 28, 2011 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a rationalized medical report from a
qualified physician explaining how her accepted right foot condition led to her intermittent
disability from June 17, 2009 to May 10, 2010.5 Appellant submitted a copy of Dr. Zboinski’s
November 24, 2010 note.

2

The case record indicates that appellant requested leave for June 22, 26 and 29, July 2 and November 17, 2009
due to her right foot condition. Each absence was approved by the employing establishment.
3

OWCP originally denied the claim by decision dated December 28, 2009. Its hearing representative reversed
this decision on April 20, 2010.
4

The case record contains several leave requests pertaining to a left knee condition sustained on
November 28, 2009. This condition was not accepted by OWCP and is not presently before the Board.
5

OWCP also advised appellant in an October 26, 2010 letter that her June 26, 2009 work stoppage suggested the
possibility of a recurrence of disability and that she should consider filing a Form CA-2a. It did not receive this
form.

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By decision dated March 22, 2011, OWCP denied appellant’s compensation claim,
finding that the medical evidence did not sufficiently establish an intermittent disability.6
On April 18, 2011 appellant requested an oral hearing. She submitted a March 28, 2011
letter from Dr. Zboinski opining that she needed custom-molded orthotics to provide
biomechanical support, alleviate pain and increase her physical function.
In a June 15, 2011 notice, OWCP’s Branch of Hearings and Review scheduled an
August 2, 2011 oral hearing for 2:00 p.m. at 201 Varick Street, Room 740, New York, NY
10014. OWCP’s hearing representative advised appellant that postponement of the hearing
would only be permitted upon receipt of documentation showing her nonelective hospitalization
or that the death of a spouse, parent or child prevented her attendance. The notice was mailed to
her address of record.
On August 17, 2011 OWCP’s hearing representative found that appellant failed to appear
at the scheduled hearing, did not contact OWCP prior or subsequent to the hearing to explain her
failure to appear and therefore abandoned her request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee has the burden of establishing that he or she was disabled for work as a
result of the accepted employment injury. Whether a particular injury causes an employee to
become disabled for work and the duration of that disability are medical issues that must be
proved by a preponderance of reliable, probative and substantial medical opinion evidence.7
Such medical evidence must include findings on examination and the physician’s opinion,
supported by medical rationale, showing how the injury caused the employee disability for his or
her particular work.8
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.9 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.10

6

OWCP noted that the June 26 and 29, 2009 dates referenced in appellant’s CA-7a form were within the 45-day
COP period.
7

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

8

Dean E. Pierce, 40 ECAB 1249 (1989).

9

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

10

Jefferson, supra note 7.

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ANALYSIS -- ISSUE 1
OWCP accepted appellant’s traumatic injury claim for right foot sprain arising from the
June 17, 2009 employment incident. Thereafter, appellant claimed wage-loss compensation for
intermittent disability, asserting that she incurred 20 hours of LWOP for June 26 and 29 and
November 17, 2009 and submitted medical evidence.
The Board finds that appellant did not establish her entitlement to wage-loss
compensation because the medical evidence did not sufficiently demonstrate that she was
intermittently disabled due to her accepted condition. In a May 5, 2010 treatment note,
Dr. Zboinski found her to be partially disabled and recommended light-duty work. However,
while he identified partial disability, he did not present any medical rationale setting forth the
pathophysiological mechanism by which appellant’s right foot sprain rendered her unable to
perform her regular employment.11 Moreover, Dr. Zboinski did not specify the dates of
disability.12
Dr. Girgis’ November 30, 2009 note advising that appellant could return to work on
December 3, 2009, Dr. Malhotra’s July 7, 2010 MRI scan report and Dr. Zboinski’s March 28,
2011 letter in favor of orthotics were of limited probative value because none offered an opinion
as to whether the accepted right foot sprain caused disability on any of the specific claimed
dates.13 Finally, Dr. Zboinski’s remaining notes from August 19, 2009 to November 24, 2010,
did not support appellant’s claim because they indicated that she was not disabled. In the
absence of rationalized medical opinion evidence, appellant failed to meet her burden of proof to
establish that she had disability causally related to the accepted injury on any of the claimed
dates.
LEGAL PRECEDENT -- ISSUE 2
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.14 Unless
otherwise directed in writing by the claims examiner, OWCP’s 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.15 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.16

11

Emma R. Bowman, Docket No. 94-2431 (issued September 13, 1996); Arita M. Cruz, Docket No. 94-1694
(issued June 11, 1996).
12

M.F., Docket No. 08-1927 (issued April 16, 2009).

13

Tracy A. Thorsen, Docket No. 93-1232 (issued July 21, 1994).

14

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

15

20 C.F.R. § 10.617(b).

16

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

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The legal authority governing abandonment of hearings rests with OWCP’s procedure
manual, which provides that a hearing can be considered abandoned only under very limited
circumstances.17 All three of the following conditions must be present: (1) the claimant has not
requested a postponement; (2) the claimant has failed to appear at a scheduled hearing; and
(3) the claimant has failed to provide any notification for such failure within 10 days of the
scheduled date of the hearing. Under these circumstances, OWCP’s hearing representative will
issue a formal decision finding that the claimant has abandoned his or her request for a hearing.18
ANALYSIS -- ISSUE 2
The case record shows that OWCP’s Branch of Hearings and Review scheduled an oral
hearing at a particular time and place on August 2, 2011. Written notice was properly addressed
and duty mailed to appellant on June 15, 2011.19 Appellant did not request postponement and
failed to appear at the appointed time, date and location. After 10 days elapsed, OWCP did not
receive any notification from her explaining her failure to appear. Therefore, under these
circumstances, the Board finds that appellant abandoned her request for a hearing.
Appellant contends on appeal that she provided notification for her failure to appear to
OWCP on August 22, 2011. As noted, such notification must be received within 10 days of the
scheduled hearing. Because 20 days elapsed from August 2 to 22, 2011, OWCP properly found
that appellant abandoned her request for an oral hearing.
The Board points out that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.20 However, appellant may submit
new evidence or argument as part of a formal written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant did not establish her entitlement to wage-loss
compensation. Furthermore, the Board finds that OWCP properly determined that she
abandoned her request for an oral hearing.

17

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

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
19

See Newton D. Lashmett, 45 ECAB 181 (1993) (mailbox rule).

20

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the August 17 and March 22, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 7, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 07-1000
Issued: August 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 2, 2006 appellant, through counsel, filed a timely appeal from decisions of the
Office of Workers’ Compensation Programs dated October 2, 2006 and January 12, 2007,
finding that she did not sustain an injury in the performance of duty on June 3, 2005. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury in the performance of duty on June 3, 2005.
FACTUAL HISTORY
On June 21, 2005 appellant, then a 60-year-old clerk, filed a traumatic injury claim
alleging that on June 3, 2005 she twisted her right ankle and hurt her foot when she slipped on a
piece of peanut brittle which was on the floor. The employing establishment noted that she first
sought medical treatment on June 28, 2005.

In duty status reports dated June 28 and July 29, 2005, Dr. Victor Arena, a podiatrist,
noted the history of injury and reported swelling and mild right foot pain.
On December 19, 2005 the Office notified appellant that the evidence submitted was
insufficient to establish her claim and advised her to provide additional documentation, including
a firm diagnosis and a physician’s opinion as to how her injury resulted in the diagnosed
condition.
In a January 17, 2006 report, Dr. Arena and Dr. Gerard Furst, a podiatrist, reported that
appellant was first seen on June 28, 2004 for a mildly swollen ankle. The podiatrists diagnosed a
“chip fracture, dislocation of the accessory bone or a moderate sprain of the foot” based upon an
x-ray obtained that day. A subsequent examination on July 29, 2005 revealed “a palpable
ganglion cyst” which had not been present at the prior examination. They noted that they were
unable “to determine whether the accessory bone was dislodged or that there was a chip facture”
as the x-ray taken on July 29, 2005 revealed “no noted bone healing.” However, the podiatrists
stated that they could not “rule out that the ganglion cyst was either caused by or aggravated by
the trauma.”
By decision dated February 6, 2006, the Office found that appellant had established that
the June 3, 2005 work incident occurred, i.e., that she slipped and fell on a piece of candy.
However, the Office denied appellant’s claim finding that she failed to provide a rationalized
medical report to support a causal relationship between the accepted event and a diagnosed
condition.
In a January 3, 20061 duty status report, Dr. Arena noted the history of injury and
diagnosed possible chip in the foot and tendinitis.
In a letter dated July 13, 2006, appellant’s counsel requested reconsideration and argued
that the January 17, 2006 report by Dr. Furst was sufficient to support appellant’s claim.
By decision dated October 2, 2006, the Office denied modification of the February 6,
2006 decision.2
In a letter dated October 2006, appellant’s counsel requested reconsideration and
submitted a September 22, 2006 report by Dr. Richard J. D’Agostino, a treating Board-certified
orthopedic surgeon, who noted that appellant twisted her ankle when she slipped and fell on a
piece of candy at work on June 3, 2005. A physical examination revealed swelling on the right
foot along the dorsal midfoot area and full range of ankle motion. Dr. D’Agostino noted, “a
palpable bony prominence in the midfoot area as well, which is mildly tender.” He stated that
“the injuries described above appear to be acute-on-chronic condition, all consistent with the
injury of June 3, 2005.”
In a December 12, 2006 progress note, Dr. D’Agostino referred to a left knee injury.
1

The podiatrist noted the year “2005” on the form, which appears to be a typographical error.

2

The Office noted that appellant had a claim pending in case number 022502232 for a traumatic injury on
May 17, 2005 when she tripped while walking.

2

By decision dated January 12, 2007, the Office denied modification of the October 2,
2006 decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 The phrase sustained while in the performance of duty is regarded as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.5
An employee seeking benefits under the Act 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 the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8
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 that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported

3

5 U.S.C. § 8101 et seq.

4

5 U.S.C. § 8102(a).

5

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
6

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

7

See Paul Foster, 56 ECAB ___ (Docket No. 04-1943, issued December 21, 2004); see also Katherine J. Friday,
47 ECAB 591 (1996).
8

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

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by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Office accepted that appellant slipped and fell while in the performance of her duties
on June 3, 2005. The Board finds, however, that appellant has not met her burden to establish a
causal relationship between the accepted employment event and appellant’s diagnosed
conditions. Drs. Arena and Furst diagnosed a chip fracture on June 28, 2005 and then diagnosed
a palpable ganglion cyst based upon an examination the following day. On January 3, 2006
Dr. Arena noted a possible chip fracture and tendinitis. Dr. D’Agostino diagnosed a swelling or
palpable bony prominence on the right foot. While Drs. Arena, Furst and D’Agostino provided
various diagnoses, their reports are devoid of any explanation as to how the diagnosed conditions
were caused or contributed to by the accepted June 3, 2005 employment event of slipping and
falling. The medical evidence of record lacks a firm medical diagnosis of appellant’s right foot
condition. Moreover, there is rationalized medical opinion by a treating physician explaining
how the accepted employment incident was competent to have caused any of the listed
diagnoses. Appellant has not established fact of injury.
The Board finds that appellant has not established that she sustained a right foot injury
causally related to the employment incident of June 3, 2005.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on June 3, 2005 as alleged.

9

John W. Montoya, 54 ECAB 306 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 2, 2006 and January 12, 2007 are affirmed.
Issued: August 10, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN J. PERSHING VA MEDICAL CENTER,
Poplar Bluff, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0008
Issued: March 4, 2022

Case Submitted on the Record

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

On October 2, 2019 appellant filed a timely appeal from a May 16, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-0008.
On January 17, 2019 appellant, then a 47-year-old medical technologist, filed a traumatic
injury claim (Form CA-1) alleging that on January 14, 2019 he had difficulty breathing and
experienced swelling of the brain and body when he was exposed to mold at work while in the
performance of duty. He stopped work on the date of the claimed injury. In support of his claim,
appellant submitted medical evidence. OWCP assigned this claim OWCP File No. xxxxxx215.
Following development of the evidence, OWCP, by decision dated March 1, 2019, denied
appellant’s traumatic injury claim on the factual component because the evidence of record did
not support that the January 14, 2019 exposure occurred as alleged. It concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA. Additionally, OWCP
noted that appellant had filed a prior occupational disease claim (Form CA-2) in OWCP File No.
xxxxxx158 for an injury caused by workplace mold exposure, which would be addressed in a
separate decision. It noted that the alleged employment-related mold exposure in the claim in

OWCP File No. xxxxxx158 and the current claim in OWCP File No. xxxxxx215 occurred over a
period much longer than one shift
On March 19, 2019 appellant requested reconsideration and submitted additional evidence.
He contended that he submitted test results, photographs, and witness statements that were
sufficient to establish that he was exposed to mold at work, as well as medical evidence sufficient
to establish that he had an asthmatic reaction after being exposed to mold.
By decision dated May 16, 2019, under OWCP File No. xxxxxx215, OWCP denied
modification of its March 1, 2019 decision. It again referenced appellant’s claim for mold
exposure under OWCP File No. xxxxx158.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. OWCP’s procedures provide that cases should be administratively combined when
a new injury is reported for an employee who previously filed a claim for a similar injury and
further indicates that the cases should be administratively combined as soon as the need to do so
becomes apparent. 1 The record reflects that appellant filed an occupational disease claim in
OWCP File No. xxxxxx158 and, thereafter, filed the current traumatic injury claim for the same
condition. As both claims involve an asthmatic reaction to the exposure of mold, the claims must
be administratively combined for a full and fair adjudication of appellant’s present claim. This
will allow OWCP to consider all relevant claim files and accompanying evide nce in developing
appellant’s current traumatic injury claim.
The case shall therefore be remanded for OWCP to administratively combine OWCP File
Nos. xxxxxx215 and xxxxxx158. Following this and other such further development as deemed
necessary, it shall issue a de novo decision.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000);
see R.R., Docket No. 20-0911 (issued October 30, 2020); T.M., Docket Nos. 09-1090 and 09-2226 (issued
March 8, 2010).

2

IT IS HEREBY ORDERED THAT the May 16, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 4, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Newport, RI,
Employer
__________________________________________

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

Docket No. 14-362
Issued: May 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 5, 2013 appellant, through her attorney, filed a timely appeal from the
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
back injury on March 14, 2013 while in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 14, 2013 appellant, then a 45-year-old store associate, filed a traumatic injury
claim (Form CA-1) alleging a back injury as a result of lifting a bag of dog food weighing 40 or
50 pounds at 3:00 p.m. that date.
In an undated medical report, Laureen J. Martin, a registered nurse practitioner, stated
that appellant was seen in the office on March 15, 2013 and reevaluated on March 26, 2013.
Appellant was diagnosed as having an acute lumbar strain with radiculitis. She was excused
from work from March 15 to April 8, 2013. Ms. Martin concluded that appellant could return to
work on April 9, 2013 with no physical restrictions.
In a March 15, 2013 note, Dr. William D. Levin, a Board-certified family practitioner,
diagnosed low back with right sciatica. He advised that appellant’s prognosis was good.
By letter dated March 28, 2013, the employing establishment controverted appellant’s
claim. Appellant filed her claim on the same day that she told Diane Saez, her supervisor, that
she would obtain a medical note putting her off work if Ms. Saez did not address her comment
concerning an employee. She requested a Form CA-1 from Kim Prashaw, a secretary, between
1:30 p.m. and 2:00 p.m. on March 14, 2013 which was prior to the time of her injury. An
accompanying journal report listed appellant’s sales transactions between 1:30 p.m. and 3:00
p.m. on March 14, 2013 and noted that no dog food was purchased during this period.
On March 28, 2013 OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested additional factual and medical evidence. OWCP
also requested that the employing establishment submit any medical evidence regarding
treatment appellant received at its medical facility.
In an April 9, 2013 statement, appellant described the incident of March 14, 2013. On
March 13, 2013 she told Ms. Saez that something needed to be done immediately regarding
problems the employees had with another employee. Appellant denied stating that she was
going to get a doctor’s note. Her injury occurred the day after and not on the same day as her
conversation with Ms. Saez. Appellant injured her back while helping a customer with a bag of
dog food that had fallen from the bottom of the customer’s cart. After her injury she asked
Ms. Prashaw for a Form CA-1.
In an April 9, 2013 report, Ms. Martin stated that appellant’s condition had worsened and
she was being sent to a specialist for further evaluation. Appellant was medically excused
through April 23, 2013 due to her back condition.
In an October 18, 2011 report, Dr. John R. Caldarelli, a Board-certified radiologist,
advised that a magnetic resonance imaging (MRI) scan of the lumbar spine showed signs of
degenerative disc disease and mild endplate spondylosis and mild central disc protrusion at the
L4-5 and L5-S1 disc levels. There were no signs of focal marrow edema.
By letter dated April 11, 2013, the employing establishment controverted appellant’s
claim for continuation of pay for the period April 9 to 23, 2013. It contended that the medical
evidence was insufficient to establish that she was disabled for work.
2

In a May 2, 2013 decision, OWCP accepted that the March 14, 2013 incident occurred as
alleged. It denied appellant’s claim, however, finding that she failed to submit sufficient medical
evidence to establish that she sustained a back injury causally related to the accepted
employment incident.
On May 10, 2013 appellant requested a review of the written record by an OWCP hearing
representative.
A May 10, 2013 report Dr. Sumit K. Das, a Board-certified neurosurgeon, stated that
appellant should remain out of work through June 17, 2013. Appellant had low back pain that
radiated through her right leg. Dr. Das advised that her symptoms occurred while picking up a
heavy bag at work on March 14, 2013. An MRI scan of the lumbar spine was significant for
degenerative changes with a disc herniation and an annular tear at two levels in the lumbar spine.
Dr. Das concluded that the MRI scan findings and appellant’s symptoms were consistent with a
heavy lifting injury on March 14, 2013.
In a March 20, 2013 memorandum, Ms. Saez noted that her conversation with appellant
regarding a co-employee occurred on March 13, 2013. As she was leaving work, Ms. Prashaw
informed her about appellant’s injury. Ms. Saez questioned why appellant did not report her
injury to a manager. On March 15, 2013 she was informed by Ms. Prashaw that appellant had
submitted a doctor’s note placing her off work for 10 days. Ms. Saez related that the employees
who worked with appellant on the date-of-injury stated that she did not tell them about her injury
nor did they witness any injury.
In a March 26, 2013 memorandum, Ms. Prashaw stated that she gave appellant a
Form CA-1 between 1:30 p.m. and 2:00 p.m. on March 14, 2013 for her back injury sustained on
that date. At 2:30 p.m. on the same day, she informed Ms. Saez about appellant’s injury and her
plan to see a doctor on March 15, 2013 to be taken off work.
In a September 9, 2013 decision, an OWCP hearing representative affirmed the
May 2, 2013 decision. He found that appellant failed to submit rationalized medical evidence to
establish that she sustained a back injury causally related to the March 14, 2013 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
2

Id. at §§ 8101-8193.

3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
OWCP accepted that on March 14, 2013 appellant lifted a bag of dog food at work in the
performance of duty. It found that the medical evidence failed to establish that she sustained a
back injury as a result of the accepted incident. The Board finds that appellant failed to provide
sufficient medical evidence demonstrating that she sustained a back condition causally related to
the March 14, 2013 employment incident.
The May 10, 2013 report from Dr. Das stated that lumbar MRI scan findings of
degenerative changes with a disc herniation and an annular tear at two levels. Dr. Das related
appellant’s low back pain that radiated through her right leg was caused by the March 14, 2013
employment incident. The report consists of one paragraph without any discussion of appellant’s
history of back pain.10 Moreover, Dr. Das did not provide sufficient medical rationale explaining
how the accepted employment incident caused the diagnosed conditions. His opinion is
speculative stating that appellant’s symptoms were consistent with a heavy lifting injury. The
Board has held that a medical opinion not fortified by medical rationale is of diminished
probative value.11 The Board finds that Dr. Das’ report does not establish appellant’s claim.
Dr. Levin’s March 15, 2013 note diagnosed low back with right sciatica. He did not
provide a medical opinion addressing whether appellant’s diagnosed back condition was caused
5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

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

10

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 8, 2008).

11

F.T., Docket No. 09-919 (issued December 7, 2009); Elizabeth H. Kramm, 57 ECAB 117, 124 (2005);
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

by the March 14, 2013 employment lifting incident.12 The Board finds that Dr. Levin’s report is
insufficient to meet appellant’s burden of proof.
Similarly, Dr. Caldarelli’s October 18, 2011 diagnostic test results are insufficient to
establish appellant’s claim. He did not provide a medical opinion addressing how her diagnosed
lumbar conditions were caused by the accepted employment lifting incident.13 The Board finds,
therefore, that Dr. Caldarelli’s report is insufficient to establish her claim.
As the reports from Ms. Martin, a nurse, were not cosigned by a physician, they have no
probative medical value to establish that appellant sustained a back injury as a result of the
March 14, 2013 employment incident. A nurse practitioner is not a physician as defined under
FECA.14
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a back injury causally related to the accepted March 14, 2013
employment incident. Appellant did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a back injury on March 14, 2013 while in the performance of duty.

12

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
13

Id.+63

14

See 5 U.S.C. § 8101(2); A.A., Docket No. 13-1425 (issued September 25, 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2014
Washington, DC

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

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

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

6