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

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

Docket No. 17-1653
Issued: January 29, 2018

Case Submitted on the Record

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

JURISDICTION
On July 24, 2017 appellant filed a timely appeal of a June 15, 2017 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
period December 24, 2016 to March 31, 2017 causally related to her accepted employment
conditions.
FACTUAL HISTORY
On September 23, 2013 appellant, then a 50-year-old rural carrier, filed a traumatic injury
claim (Form CA-1), alleging that, on August 30, 2013, she injured her left upper back and
1

5 U.S.C. § 8101 et seq.

experienced muscle spasms when pulling down mail from a shelf. OWCP accepted the claim for
thoracic sprain and left shoulder sprain. It later expanded the claim to include aggravation of
cervical degenerative disc disease at C5-6. Appellant stopped work on September 20, 2013 and
returned to limited-duty work on September 24, 2013. OWCP paid appropriate compensation on
the supplemental rolls beginning February 19, 2014. It developed this claim under OWCP
File No. xxxxxx326.
Appellant was initially treated by Dr. Robert M. Pickering, a Board-certified orthopedist,
from November 20 to December 17, 2013, for mid-back pain, burning, and left-sided rib pain.
She reported that on August 30, 2013 while at work lifting overhead she felt a sharp pain in the
upper back. Thoracic spine x-rays showed some mild disc space narrowing at two levels.
Dr. Pickering diagnosed thoracic radiculopathy and returned appellant to work light duty.
A November 10, 2014 functional capacity evaluation (FCE) revealed that she was capable of
returning to light-to-medium range work. Appellant submitted a duty status report (Form
CA-17) prepared by Dr. Patrick M. Curlee, a Board-certified orthopedist, on December 3, 2014,
who diagnosed cervical strain and sprain. Dr. Curlee released her to a light-duty position for
four hours a day.
On December 31, 2014 the employing establishment offered appellant a modified rural
carrier/lobby assistant position for four hours a day subject to restrictions, effective
December 3, 2014. On January 5, 2015 appellant accepted the position and returned to work. In
an August 13, 2015 letter, OWCP indicated that she had been employed as a modified rural
carrier for four hours per day, 20 hours per week effective December 13, 2014 with wages of
$625.14 a week. It advised that, effective December 13, 2014, her monetary compensation
would be reduced based upon actual earnings.2
In a work release note dated February 11, 2016, Dr. Jovie Bridgewater, a Board-certified
anesthesiologist, noted that appellant was treated for increased neck pain, shoulder pain, and
spasm and could not return to work.
On February 23, 2016 appellant filed a claim for compensation (Form CA-7) for total
disability due to a change or worsening of her accepted work-related conditions beginning
February 11, 2016. OWCP developed the claim as a recurrence of disability (Form CA-2a),
which it ultimately denied.3
In a work excuse form dated February 23, 2016, Dr. N. Craig Clark, a Board-certified
neurosurgeon, indicated that appellant was off work from February 23 to April 4, 2016. He
noted that she would be reevaluated after she completed physical therapy. In a return work slip
dated April 22, 2016, Dr. Clark indicated that appellant was unable to return to work until she
underwent an electromyogram (EMG) and had a follow-up visit.

2

This letter did not purport to be a formal loss of wage-earning capacity determination as no appeal rights were
attached to the correspondence.
3
In a July 11, 2016 decision, OWCP denied appellant’s claim for a recurrence of disability commencing
February 11, 2016 in OWCP File No. xxxxxx326.

2

In March 8 and April 4, 2016 reports, Dr. Curlee treated appellant for increased neck pain
extending to her shoulders bilaterally, interscapular region, and intermittent tingling in the
bilateral forearms, caused by work activities. He diagnosed cervical thoracic strain/sprain caused
by an August 2013 work injury, moderate C5-6 degenerative disc disease, C5-6 broad based disc
bulging, and persistent neck and shoulder myofascial pain. Dr. Curlee attributed appellant’s
increased symptoms to work activities. He returned her to work with restrictions on
February 22, 2016, but she was unable to finish the day due to increased neck and arm pain
caused by her work activities. Dr. Curlee kept her off work.
Appellant was treated by Dr. Clark on April 20, 2016, for neck and left shoulder pain,
and diffuse numbness in the left arm, index, long, and ring fingers. She reported working as a
rural mail carrier and in August 2013 while casing mail she reached to retrieve mail from the top
shelf and felt a “pop” in her neck. Appellant’s symptoms worsened and she sought medical
treatment and had three months of physical therapy. A FCE revealed that she could work four
hours a day. Dr. Clark noted that magnetic resonance imaging (MRI) scans performed in
February 2014 and April 2016 as unremarkable. He diagnosed chronic cervical strain, left
occipital neuralgia, left subacromial bursitis, and left carpal tunnel syndrome. Dr. Clark
recommended an EMG, left shoulder steroid injection, left occipital nerve block, and left wrist
splint. He noted that appellant was totally disabled.
On June 8, 2016 appellant, filed an occupational disease claim (Form CA-2), alleging that
she developed neck and back pain as a result of repetitively lifting, pushing, and pulling
packages in the performance of duty. She became aware of her condition and its relationship to
her federal employment on February 8, 2016. Appellant noted that she was unsure if she should
file a new claim or a recurrence of disability claim attributable to her earlier claim. OWCP
developed this claim under File No. xxxxxx660.4
On August 11, 2016 OWCP accepted appellant’s claim for aggravation of sprain of
ligaments of the cervical spine in File No. xxxxxx660.
On August 23, 2016 OWCP requested Dr. Clark advise whether appellant had residual
disability directly related to or caused by her work injury, when she would be able to return to
gainful employment in any capacity, when she would reach maximum medical improvement,
and what restrictions she had at this time.
On August 24, 2016 appellant filed claims for compensation (Forms CA-7), for leave
without pay for total disability for the period February 8 to 19, 2016; February 23 to April 22,
2016; and May 2 to August 19, 2016. The employing establishment noted that there was no
medical evidence received which supported disability. The employing establishment noted that
appellant had a modified job assignment under OWCP File No. xxxxxx326.
In a development letter dated August 31, 2016, OWCP requested that appellant submit
additional information to support her claim for compensation beginning February 8, 2016

4

OWCP administratively combined File Nos. xxxxxx326 and xxxxxx660, with the former serving as the master

file.

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including medical evidence establishing that her total disability was due to the accepted
condition for the period claimed.
Appellant submitted a March 31, 2016 report from Dr. Curlee, who treated her for neck
pain. Dr. Curlee noted that she had no relief after four physical therapy sessions and continued
to have pain extending into her shoulders bilaterally, interscapular region, and intermittent
tingling into the forearms. He diagnosed chronic cervical, thoracic strain/sprain caused by
work-related injury of August 2013, moderate C5-6 degenerative disc disease, C5-6 broad-based
disc bulging, and persistent neck and shoulder myofascial pain. Dr. Curlee returned appellant to
work for four hours a day on April 25, 2016 with restrictions on lifting over 20 pounds.
Appellant was treated by Dr. Bridgewater on June 9, 2016 for worsening neck pain
radiating into both shoulders, arms, fingers, and upper back. Dr. Bridgewater noted findings on
examination of neck pain, neck stiffness, back pain, and bilateral shoulder pain. He diagnosed
chronic pain, degeneration of lumbar and lumbosacral disc, degeneration of cervical disc, and
chronic pain of both shoulders.
Appellant submitted a June 24, 2016 report from Dr. Clark who noted that an EMG was
normal and MRI scans showed no evidence of significant neurocompression. Her major
complaint continued to be cervical and thoracic axial pain. Dr. Clark diagnosed chronic cervical
strain and left subacromial bursitis. He recommended a repeat FCE.
In a decision dated October 27, 2016, OWCP denied appellant’s claim for compensation
for total disability for the period of February 8 to 19, 2016; February 23 to April 22, 2016; May 2
to August 19, 2016; and June 7 to September 2, 2016. It advised that the evidence of record
failed to establish work-related disability during the periods claimed.5
Appellant was treated in the emergency room by Dr. Roderick A. Hart, a Board-certified
family practitioner, on October 8, 2016, for neck pain which she reported was chronic from a
work-related injury in February 2016. She noted that her pain became worse after physical
therapy. Dr. Hart noted findings of neck muscular tenderness and decreased range of motion
secondary to pain. He diagnosed cervicalgia, chronic pain, myalgia, and pain in the thoracic
spine.
Appellant submitted a work capacity evaluation (Form OWCP-5c) from Dr. Clark dated
October 26, 2016 who diagnosed sprain of the ligaments of the cervical spine. He noted that she
was able to perform her preinjury job without restrictions. Dr. Clark indicated that appellant
could work sedentary, light duty, and medium-duty work. He did not note any restrictions on
driving.
Appellant was treated by Dr. Bridgewater on November 1, 2016 for pain and burning in
the upper back, middle back, and shoulders. He diagnosed chronic pain, degeneration
5

On October 27, 2016 appellant requested an oral hearing before an OWCP hearing representative. A hearing
was held on June 15, 2017. At the time the present appeal was filed, OWCP’s hearing representative had not issued
a decision with respect to OWCP’s October 27, 2016 decision. Consequently, periods addressed in OWCP’s
October 27, 2016 decision are not before the Board on the present appeal. See 20 C.F.R. § 501.2(c).

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lumbar/lumbosacral disc, degeneration of cervical disc, and chronic pain in both shoulders.
Appellant indicated that her pain medication was controlling her pain and allowing her to
function daily, but she was unable to drive due to the sedative effects of the medication. She
requested a letter be written to her employing establishment stating that she was unable to drive
to work due to the side effects of her medication.
Appellant submitted a statement dated November 4, 2016 and indicated that she was
intimidated during her FCE and was in considerable pain. She requested that she be referred to
another facility for a FCE.6
A November 21, 2016 field nurse report noted that Dr. Clark earlier released appellant to
her regular job, but that appellant had not returned to work based on Dr. Bridgewater’s
recommendation. She noted appellant’s concern about her prescribed medication and driving.
The nurse noted a similar assessment on December 21, 2016.
On March 31, 2017 appellant filed a claim for compensation (Form CA-7), for total
disability for the period December 24, 2016 to March 31, 2017.
In an April 14, 2017 letter, OWCP requested that appellant submit additional information
to support her claim for compensation beginning December 24, 2016 to March 31, 2017
including medical evidence establishing that her total disability was due to the accepted
condition for the period claimed.
By decision dated June 15, 2017, OWCP denied appellant’s claim for compensation for
total disability for the period December 24, 2016 to March 31, 2017. It advised that the evidence
of record failed to establish work-related disability during the claimed period due to the accepted
conditions.
LEGAL PRECEDENT
Section 8102(a) of FECA7 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general, the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”8 This meaning, for brevity, is expressed as disability for work.9

6

Appellant filed claims for compensation (Form CA-7), for leave without pay for total disability for the period
August 22 to October 28, 2016; October 31 to November 11, 2016; November 28 to December 9, 2016; and
December 12 to 23, 2016. In letters dated January 3 and 11, 2017, OWCP requested that she submit additional
information to support her claims for compensation beginning November 28, 2016.
7

5 U.S.C. § 8102(a).

8

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
9

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

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For each period of disability claimed, the employee has the burden of proving that she
was disabled from work as a result of the accepted employment injury.10 Whether a particular
injury caused an employee to be disabled from employment and the duration of that disability are
medical issues which must be proved by the preponderance of the reliable, probative, and
substantial medical evidence.11
ANALYSIS
OWCP accepted appellant’s claim for thoracic strain and sprain of the left shoulder,
aggravation of cervical degenerative disc disease at C5-6, and aggravation of sprain of ligaments
of cervical spine. On March 31, 2017 appellant filed a claim for compensation, for leave without
pay for total disability for the period December 24, 2016 to March 31, 2017.12 The Board finds
that the medical evidence of record is insufficient to establish total disability for the period
December 24, 2016 to March 31, 2017 causally related to her accepted employment conditions.
The Board notes that appellant did not return to her regular work after OWCP received an
October 26, 2016 work capacity evaluation (Form OWCP-5c) from Dr. Clark advising that
appellant was able to perform her usual preinjury job without restrictions. Appellant continued
to file claims for total disability compensation and provided a November 1, 2016 report from
Dr. Bridgewater who diagnosed chronic pain, degeneration lumbar/lumbosacral disc,
degeneration of cervical disc, and chronic pain in both shoulders. She indicated that her pain
medication was controlling her pain and allowing her to function daily, but she was unable to
drive due to the sedative effects of the medication. Even though Dr. Bridgewater noted that
appellant was totally disabled from work, he did not specifically explain how any accepted
condition would cause disability beginning December 24, 2016 to March 31, 2017.13
Additionally, he attributed her disability at least partially to a lumbar and bilateral shoulder
condition. However, OWCP has not accepted that appellant developed a lumbar condition or a
bilateral shoulder condition as a result of her work duties.14 Dr. Bridgewater also has not
discussed how any prescribed medication for an accepted condition interfered with her ability to
drive.15 The Board notes that Dr. Clark did not list any restrictions on driving.
10

See William A. Archer, 55 ECAB 674 (2004).

11

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

12

Appellant continued to receive wage-loss compensation for partial disability under OWCP File No. xxxxxx326
until the filing of the present appeal.
13
See Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not containing rationale on causal relationship
are entitled to little probative value).
14

For conditions not accepted by OWCP as being employment related, it is the employee’s burden of proof to
provide rationalized medical evidence sufficient to establish causal relation, not OWCP’s burden to disprove such
relationship. Alice J. Tysinger, 51 ECAB 638 (2000).
15

See B.W., Docket No. 14-0372 (issued November 12, 2014) (physician did not address the medical condition
for which narcotic medication was prescribed and did not state any opinion that residuals of the accepted conditions
disabled appellant). The Board notes that there is also no indication in the record that other appropriate modes of
transportation were not available for commuting to work.

6

Other medical reports of record predate the claimed period of disability and do not
otherwise address how total disability beginning December 24, 2016 was due to the accepted
conditions. As noted, for each period of disability claimed, the employee has the burden of
proving that appellant was disabled for work as a result of the accepted employment injury.16
On April 14, 2017 OWCP requested that appellant submit medical evidence to support
her claim for compensation beginning December 24, 2016 to March 31, 2017. Appellant did not
submit responsive medical evidence addressing this particular period.
On appeal appellant asserts that she submitted sufficient medical evidence supporting
disability for the period claimed. The Board finds that she failed to submit rationalized medical
evidence establishing causal relationship between the specific period of claimed disability and
the accepted conditions.
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 failed to establish total disability for the period
beginning December 24, 2016 and March 31, 2017 causally related to the accepted employment
conditions.

16

Supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the June 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
ADMINISTRATIVE LAW JUDGES,
West Covina, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1671
Issued: November 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2007 appellant timely appealed the March 26, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied modification of the hearing
representative’s March 30, 2006 decision.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly suspended all wage-loss compensation
from December 28, 2004 to January 4, 2005 for failure to cooperate in vocational rehabilitation;
and (2) whether the Office properly reduced appellant’s wage-loss compensation effective
August 7, 2005 because of her failure to fully participate in vocational rehabilitation.

1

The hearing representative affirmed two Office decisions that reduced appellant’s compensation because of a
failure to participate in vocational rehabilitation.

FACTUAL HISTORY
Appellant, a 68-year-old legal technician, has two accepted claims. On or about
December 1, 2001 she sustained an employment-related cervicobrachial strain (File No.
xxxxxxx691). Appellant sustained another work-related injury on August 9, 2002, when she
stumbled and fell while arising from her desk. She stopped work following the August 9, 2002
injury. The Office initially accepted appellant’s August 9, 2002 traumatic injury for right ankle
sprain and right ankle contusion, but later expanded the claim to include lumbar sprain (File No.
xxxxxx349).2 Appellant also sustained a consequential injury on September 13, 2002 when she
fell at home, fracturing the third toe on her left foot. The Office placed her on the periodic
compensation roll.
A conflict arose concerning appellant’s ability to return to work. Therefore, the Office
referred her to Dr. David Wren, Jr., a Board-certified orthopedic surgeon, for an impartial
medical evaluation. In a report dated June 4, 2004, Dr. Wren found that appellant’s right ankle
sprain, lumbar sprain and third left toe fracture had resolved. However, there was evidence of
right ankle tenosynovitis and traumatic severe osteoarthritis, which he believed was aggravated
by the August 9, 2002 employment injury. Dr. Wren also diagnosed cervical disc disorder with
spondylosis, cervical radiculitis and right shoulder impingement and capsulitis. Additionally, he
believed that appellant’s cervicobrachial had not yet resolved. With respect to appellant’s
lumbar spine, Dr. Wren diagnosed multilevel disc bulging, degeneration and facet joint arthritis.
He also noted L5 and S1 nerve root radiculopathy. According to Dr. Wren, appellant’s current
back, neck, right shoulder and bilateral arm and hand problems were exacerbated by the
August 9, 2002 employment injury.
Dr. Wren advised that appellant could not perform the full duties of her date-of-injury
position. However, appellant was capable of performing modified duties.3 Dr. Wren
recommended a workplace accommodation that would permit the use of a four-wheel walker and
a motorized scooter.4 He also noted that, if the scooter did not fit appellant’s workstation, then
she should be able to transfer to an ergonomic chair. Dr. Wren recommended that appellant
begin working four hours a day, three days per week. After three to four weeks, he proposed
increasing appellant’s work week to five days, while continuing a four-hour workday. Dr. Wren
indicated that these time limitations should remain in effect for another four to six weeks, at
which point appellant would be reevaluated by her treating physician to ascertain whether her
workday could be increased beyond four hours.

2

Appellant previously fractured her right ankle in 1995, which required surgical intervention. She also had a
prior history of lumbar degenerative disc disease.
3

Dr. Wren submitted a June 21, 2004 work capacity evaluation (Form OWCP-5c) outlining appellant’s numerous
and varied physical limitations.
4

Appellant utilized a four-wheel walker at the time of her June 4, 2004 examination. The Office authorized both
a four-wheel walker and a motorized scooter in October 2002. However, appellant had been without a motorized
scooter since June 2003 when she returned it to the medical supply company because it was in need of repair. Since
that time appellant and her treating physician tried unsuccessfully to gain authorization from the Office for a
replacement scooter.

2

In August 2004, the Office advised the employing establishment of Dr. Wren’s recent
findings. It also assigned a field nurse on August 23, 2004. On September 2, 2004 the
employing establishment offered appellant a modified job as a legal assistant in accordance with
Dr. Wren’s findings. The job offer included worksite accommodations for a four-wheel walker
and a motorized scooter. Appellant declined the offer on September 14, 2004. By letter dated
September 30, 2004, the Office informed appellant that it considered the September 2, 2004 parttime, modified legal assistant job offer suitable, and advised appellant that she had 30 days to
accept the position or provide a written explanation for her refusal.5
Since being assigned the case on August 23, 2004, the field nurse had not met or spoken
directly with appellant. But she had spoken with appellant’s husband. On September 30, 2004
the Office advised appellant to contact the assigned field nurse so that arrangements could be
made to obtain a motorized scooter. It explained that the scooter would not be authorized until
appellant met with the nurse and occupational therapist at a medical supply company. According
to the Office, this proposed meeting was necessary to “determine the basic, unadorned motorized
scooter meeting [appellant’s] particular needs.” It instructed appellant to contact the field nurse
within 10 days otherwise her inaction might be construed as a failure to cooperate in the
rehabilitation process.
On October 9, 2004 appellant’s husband telephoned the field nurse and also wrote her a
letter on his wife’s behalf. The letter advised of an upcoming appointment with appellant’s
treating physician. It also noted that appellant’s walker had recently been stolen and, therefore,
she would need another walker and a cane before she could attend a meeting at the medical
supply store.
On November 16, 2004 appellant sent a fax to the field nurse regarding an appointment
appellant scheduled with a medical supply vendor (MedSolutions) for noon on Thursday,
November 18, 2004. Appellant indicated that she found a vendor with four-wheel motor
scooters and walkers. She further noted that the vendor was able to attach a hitch to the car to
carry the motor scooter. Appellant asked the field nurse to meet her and her husband at the
vendor’s Brentwood, CA location. In a brief reply, also sent via fax, the field nurse stated she
was unable to meet appellant because she had “20 other appointments.”6
On November 23, 2004 the Office advised appellant that she had not complied with the
instructions given her on September 30, 2004. It further noted that appellant’s actions were
construed as a refusal to cooperate with nurse intervention, and by association, the vocational
rehabilitation efforts of the Office. Appellant was given 10 days to telephone the field nurse.7
The Office further noted that the field nurse would arrange a date and time to meet with the
5

Because of a technical error, the Office reissued the suitability determination on October 19, 2004.

6

In a follow-up letter dated November 24, 2004, the field nurse stated that appellant’s November 16, 2004
request did not provide sufficient time to coordinate a meeting among three individuals. The field nurse also
indicated that the Brentwood, CA facility was a two-hour drive from her San Francisco office and, therefore, she
would have to set aside a five-hour block in her schedule to assist with the purchase of the motorized scooter. No
further mention was made of the “20 other appointments.”
7

The claims examiner specifically noted that the call was not to be made by appellant’s husband.

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occupational therapist at a medical supply company enrolled in the program. Appellant was also
told that because she was “not working and ... [was] receiving compensation, [she] must be
available to meet at the earliest convenience of the field nurse and occupational therapist.” The
Office warned appellant that, if she did not comply within the designated time frame, the
rehabilitation efforts would end and her compensation would be reduced accordingly.
On November 26, 2004 appellant spoke with the field nurse via telephone. On
November 29, 2004 appellant, her husband and the field nurse met in a restaurant parking lot in
San Pablo, CA. The field nurse interviewed appellant in the back seat of an automobile because
of appellant’s difficulty ambulating. On December 2, 2004 the field nurse contacted appellant to
schedule a meeting with MedSolutions for December 13, 2004. She followed up their
conversation with a letter confirming the December 13, 2004 appointment.
Appellant fell at home on December 4, 2004, and according to her husband, she was
heavily medicated and not coherent enough to meet with the field nurse. Appellant’s husband
went to MedSolutions on Saturday, December 11, 2004, where he learned from a store
representative that a meeting had been scheduled for Monday, December 13, 2004. Because he
was unavailable that Monday, appellant’s husband cancelled the December 13, 2004
appointment and tentatively rescheduled for either Saturday, December 18, 2004 or Monday,
December 20, 2004. Appellant’s husband explained that his attendance and input was necessary
because the mobile home park where he and his wife resided had numerous restrictions regarding
exterior modifications to the property that might impact the selection of particular equipment.
The field nurse advised the Office that she was unavailable for either of the two
December 2004 dates proposed by appellant’s husband. She then left it to MedSolutions to
schedule a meeting with appellant. After several failed attempts, the vendor reached appellant’s
husband by telephone on December 16, 2004. At that time he advised the vendor that his wife
would not be available on either December 18 or 20, 2004. On December 21, 2004 appellant’s
husband called MedSolutions and advised that he was having difficulty reaching the assigned
occupational therapist. The vendor’s representative indicated that the occupational therapist’s
participation was unnecessary.8 Appellant’s husband asked if it was possible to meet on
January 10, 11 or 12, 2005. The vendor was amenable to meeting with appellant on those dates.
The time allotted for nursing services (120 days) expired and the field nurse issued a
closure report on December 27, 2004.
On December 28, 2004 the Office reduced appellant’s wage-loss compensation to zero
because of her refusal to cooperate with “nurse services.” Compensation was reduced to zero
because, as the Office explained, it was not in a position “to determine what would have been
[appellant’s] wage-earning capacity had [she] in fact undergone the rehabilitation effort.”
Appellant met with the medical supply vendor at her home on January 5, 2005. The
MedSolutions representative took measurements of appellant’s home and submitted a quote to
the Office on January 18, 2005. With only slight modification, the Office approved the items

8

The record indicates that the occupational therapist was unavailable until January 10, 2005.

4

appellant selected. On January 21, 2005 the Office informed MedSolutions of its authorization
of a four-wheel motorized scooter, rolling walker, scooter lift and vehicle hitch.
The Office reinstated appellant’s monetary compensation retroactive to January 5, 2005.
Because of a disagreement between appellant’s husband and the vendor regarding
equipment delivery and installation services, MedSolutions advised the Office on February 22,
2005 that it was cancelling appellant’s order.9 On March 10, 2005 the Office advised appellant
that it had to find a new equipment vendor.
On April 1, 2005 the Office assigned a rehabilitation counselor to the case. The
counselor’s specific mandate was to “coordinate the assessment and purchase” of a four-wheel
walker, motorized scooter and ergonomic chair. The walker was designated as appellant’s
property and the motorized scooter and ergonomic chair were designated as property of the
employing establishment and were to remain at appellant’s worksite. The Office advised
appellant on May 2, 2005 that the motorized scooter would remain at the workplace, and
therefore, housing and vehicle modifications were no longer necessary. However, the fourwheel walker would be available for use both at home and at work.
On May 9, 2005 the employing establishment extended another job offer to appellant. It
was the same part-time, modified legal assistant position appellant received on
September 2, 2004. The offer did not specify a start date, however, appellant was instructed to
respond by May 23, 2005. Appellant signed and accepted the position on May 10, 2005, but
waited another 10 days before mailing her acceptance to the employing establishment.
On May 23, 2005 the rehabilitation counselor wrote appellant asking that she contact her
immediately to schedule a mutually convenient appointment time. She noted appellant’s recent
acceptance of the job offer and explained that she had been unable to contact appellant.10 The
counselor’s stated objective for the meeting was to “verify necessary equipment properties[,]
coordinate a worksite evaluation, and ... ensure a smooth transition back to work.”
On May 26, 2005 the Office authorized the rehabilitation counselor to select the
equipment she deemed most appropriate. Over the next two-week period the rehabilitation
counselor selected and arranged delivery for a motorized scooter, ergonomic chair and fourwheel walker. The first two items were scheduled for delivery at the employing establishment.
However, the four-wheel walker was to be shipped to appellant’s street address in San Pablo,
CA, which the rehabilitation counselor obtained from the employing establishment. But
unbeknownst to both the employing establishment and the rehabilitation counselor, appellant had
sold her mobile home in San Pablo, CA on or about May 22, 2005.

9

Appellant’s husband was under the impression that modifications would be made to their mobile home to
accommodate the motorized scooter. However, these particular services were not part of the quote MedSolutions
forwarded to the Office in January 2005.
10

Appellant’s telephone had been disconnected. The May 23, 2005 letter was mailed to appellant’s P.O. Box in
San Pablo, CA.

5

On June 15, 2005 the rehabilitation counselor wrote to appellant at the San Pablo, CA
street address obtained from the employing establishment. She advised appellant that the
necessary equipment had been selected based on height and weight information obtained from
Dr. Wren’s June 2004 report. The counselor also noted that the motorized scooter and
ergonomic chair were being delivered to the worksite and the four-wheel walker was to be
delivered to the San Pablo, CA street address. In closing, the counselor remarked that the
rehabilitation process would operate much more smoothly with appellant’s voluntary
participation, but it would nonetheless continue to advance without appellant’s direct input.
After an unsuccessful attempt to deliver the four-wheel walker, the Office learned on
June 17, 2005 that appellant no longer resided at the mobile home park in San Pablo, CA.
Appellant was reportedly touring the country with her husband in their fifth-wheel trailer.
The motorized scooter and the four-wheel walker were delivered to the employing
establishment in late-June 2005. The ergonomic chair arrived approximately one month later.
The Office wrote appellant on June 20, 2005 regarding her lack of cooperation with the
rehabilitation counselor. It specifically noted that appellant had not responded to either the
May 23 or June 15, 2005 letters from the rehabilitation counselor. The Office was further noted
that the rehabilitation counselor had been unable to reach appellant by telephone as her number
had been disconnected. Appellant was warned that her compensation could be reduced for
failure to participate in vocational rehabilitation. She was given 30 days within which to contact
both the claims examiner and the rehabilitation counselor.
Appellant contacted the Office on several occasions in July 2005 regarding her medical
insurance coverage and she provided a telephone number where she could be reached. However,
she did not contact the rehabilitation counselor.
Appellant also contacted the employing establishment on July 29, 2005 concerning her
return to work. That same day the employing establishment sent appellant a letter advising her
that all the necessary equipment was in place and that she should report for duty on
August 8, 2005.
On August 2, 2005 the Office reduced appellant’s compensation for her refusal to
participate in vocational rehabilitation. It noted that appellant had not responded to its June 20,
2005 letter and she had not demonstrated good cause for her failure to comply. Appellant’s
compensation was reduced based on her earning potential as a part-time, modified legal assistant.
The reduction was effective close of business on August 6, 2005.11
Appellant called the Office on August 5, 2005 inquiring about whether the rehabilitation
counselor could meet her at her dentist’s office on August 9, 2005. She also advised the Office
that she would not be reporting to work because she did not have transportation. On August 8,
2005 the claims examiner attempted to reach appellant at the telephone number she had
provided, but was unsuccessful. The Office then sent appellant a letter advising her to contact
11

The Office made a slight computation error regarding appellant’s new compensation rate. Accordingly, an
amended decision was issued on August 5, 2005.

6

the rehabilitation counselor. It also indicated that the rehabilitation counselor was available to
arrange transportation to work.
Appellant did not report to work on August 8, 2005 because of an alleged abscessed tooth
she planned on having extracted on August 9, 2005. The employing establishment extended
appellant’s report date until August 10, 2005. Upon her return to work appellant was expected to
provide the employing establishment medical documentation for her absence on August 8
and 9, 2005. Appellant did not report to work on August 10, 2005. She relocated to
Albuquerque, NM and advised the Office of her new mailing address several months later. The
Office instructed the rehabilitation counselor to close the case effective February 9, 2006.
Appellant requested a review of the written record regarding the December 28, 2004 and
August 5, 2005 decisions. By decision dated March 30, 2006, the Office hearing representative
affirmed both decisions.
On December 26, 2006 appellant requested reconsideration. Her representative argued
that the services provided by the field nurse and rehabilitation counselor did not constitute
vocational rehabilitation. Counsel specifically noted that the rehabilitation counselor’s April 1,
2005 assignment was limited to coordinating the assessment and purchase of a four-wheel
walker, motorized scooter and ergonomic chair. He argued that these particular services were
not traditional vocational rehabilitation services as identified under the applicable regulations.
Appellant subsequently participated in an Office directed medical examination. In a
February 12, 2007 report, Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and
Office referral physician, found that all of appellant’s accepted conditions had resolved.12
By decision dated March 26, 2007, the Office denied modification of the hearing
representative’s decision. In response to appellant’s argument that she had not received
vocational rehabilitation services, the Office explained that there was no “need for [appellant] to
undergo vocational testing, training, development of a placement plan (sic) as a suitable position
was offered ... and accepted....” The Office also found Dr. Swartz’s February 12, 2007 directed
examination probative evidence of appellant’s current medical condition.
LEGAL PRECEDENT
If an employee without good cause fails or refuses to apply for, undergo, participate in, or
continue to participate in a vocational rehabilitation effort when so directed, the Office will act as
follows:
“(a) Where a suitable job has been identified, [the Office] will reduce the
employee’s future monetary compensation based on the amount which would
likely have been his or her wage-earning capacity had he or she undergone
vocational rehabilitation. [The Office] will determine this amount in accordance
with the job identified through the vocational rehabilitation planning process,
12

The Office relied upon Dr. Swartz’s opinion as a basis for terminating all compensation and medical benefits as
of May 11, 2007. This decision, however, was reversed by the Branch of Hearings & Review on February 20, 2008.

7

which includes meetings with [the Office] nurse and the employer. The reduction
will remain in effect until such time as the employee acts in good faith to comply
with the direction of the [the Office].
“(b) Where a suitable job has not been identified, because the failure or refusal
occurred in the early but necessary stages of a vocational rehabilitation effort,
(that is, meetings with the [Office] nurse, interviews, testing counseling,
functional capacity evaluations, and work evaluations), [the Office] cannot
determine what would have been the employee’s wage-earning capacity.
“(c) Under the circumstance identified in paragraph (b) of this section, in the
absence of evidence to the contrary, [the Office] will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity, and [the Office] will reduce the employee’s monetary
compensation accordingly (that is, to zero). The reduction will remain in effect
until such time as the employee acts in good faith to comply with the direction of
[the Office].”13
ANALYSIS
The Office suspended all monetary compensation during the period December 28, 2004
to January 4, 2005 on the basis that appellant had not fully cooperated with the field nurse who
had been assigned to assist in the procurement of certain medical equipment. Assuming
arguendo that the field nurse’s limited involvement in the procurement of a four-wheel walker
and motorized scooter constituted “vocational rehabilitation” services, appellant’s purported lack
of cooperation should not have resulted in the suspension of all monetary compensation. The
Office reduced appellant’s compensation to zero on the premise that it could not determine what
would have been appellant’s wage-earning capacity had she fully cooperated with the field nurse.
This assertion by the Office lacks support in the record.
When the Office terminated appellant’s compensation in December 2004, appellant had
already received a part-time, limited-duty job offer from the employing establishment, which
included pertinent salary information. Moreover, the Office advised appellant on September 30,
2004 that the offered position was suitable. The field nurse’s services were engaged to assist in
obtaining a four-wheel walker and motorized scooter so that appellant could return to work as a
part-time, limited-duty legal assistant, initially working 12 hours per week.14 The Board finds
there was ample information in the record for the Office to determine appellant’s wage-earning
capacity as a part-time, limited-duty legal assistant. Consequently, the Office’s decision to
13

20 C.F.R. § 10.519 (2008); see 5 U.S.C. § 8113(b) (2000).

14

It is noteworthy that neither the field nurse nor occupational therapist participated in any direct meetings with
appellant and the medical supply company involving the selection of the four-wheel walker and motorized scooter.
In fact, the field nurse essentially abrogated her responsibilities effective December 13, 2004 when she asked the
medical equipment vendor to contact appellant to arrange a meeting. This meeting between appellant and the
vendor ultimately took place on January 5, 2005 and did not include a representative from the Office. In retrospect,
there appears to have been no legitimate basis for postponing the meeting appellant had originally scheduled with
the same vendor for November 18, 2004.

8

suspend all compensation during the period December 28, 2004 to January 4, 2005 is reversed as
it contravenes 20 C.F.R. § 10.519(a).
Appellant questioned whether the field nurse and rehabilitation counselor actually
provided “vocational rehabilitation” services. Both individuals were essentially involved in the
procurement of medical and/or office equipment. When the Office assigned a rehabilitation
counselor in April 2005, she received a fairly limited mandate. The Office specifically instructed
the rehabilitation counselor to “coordinate the assessment and purchase” of a four-wheel walker,
motorized scooter and ergonomic chair. By the time a rehabilitation counselor received her
assignment on April 1, 2005, a “suitable” position had already been identified and an appropriate
four-wheel walker and motorized scooter had been selected and payment authorized. The only
task not previously addressed was the acquisition of an ergonomic office chair. Other than the
rehabilitation counselor’s specific mandate to obtain certain office and medical equipment, the
Office did not have in place a formal vocational rehabilitation program.
While appellant was perhaps less than cooperative, the Office was not at the time
engaged in what one traditionally considers vocational rehabilitation services. The applicable
regulation provides:
“(a) [The Office] may, in its discretion, provide vocational rehabilitation services
as authorized by 5 U.S.C. [§] 8104. These services include assistance from
registered nurses working under the direction of [the Office]. Among other
things, these nurses visit the worksite, ensure that the duties of the position do not
exceed the medical limitations as represented by the weight of medical evidence
established by [the Office], and address any problems the employee may have in
adjusting to the work setting. The nurses do not evaluate medical evidence; [the
Office] claims staff perform this function.
“(b) Vocational rehabilitation services may also include vocational evaluation,
testing, training, and placement services with either the original employer or a
new employer, when the injured employee cannot return to the job held at the
time of injury. These services also include functional capacity evaluations, which
help to tailor individual rehabilitation programs to employees’ physical
reconditioning and behavioral modification needs, and help employees to meet
the demands of current or potential jobs.”15
In a broad, general sense, the Office was involved in an effort to return appellant to work
with her former employer. However, every effort of this type does not necessarily involve
initiating formal vocational rehabilitation services. Facilitating the purchase of certain office and
medical equipment was an ancillary step in the process of returning appellant to work. It was not

15

20 C.F.R. § 10.518 (2008).

9

vocational rehabilitation.16 The mere fact that the Office assigned a nurse, occupational therapist
and rehabilitation counselor to aid in the equipment acquisition process does not mean appellant
received “vocational rehabilitation” services. Appellant obtained similar medical equipment in
October 2002 without much fanfare or direct involvement from the Office, other than its
authorizing payment.
The purchase of standard, noncustomized medical and office equipment is not what one
generally considers vocational or medical rehabilitation services. Therefore, appellant’s
purported noncooperation does not justify a reduction or termination of monetary compensation.
By the time the Office issued its August 2, 2005 decision reducing appellant’s compensation, the
four-wheel walker, motorized scooter and ergonomic chair were already in place at the
employing establishment. All that remained for appellant to do was report for work on August 8,
2005, as directed by the employing establishment.17 The Board finds that the Office improperly
reduced appellant’s monetary compensation effective August 7, 2005 based on failure to
cooperate with vocational rehabilitation efforts.
CONCLUSION
The Office improperly suspended all wage-loss compensation from December 28, 2004
to June 4, 2005. The Board also finds that the Office improperly reduced appellant’s wage-loss
compensation effective August 7, 2005.

16

According to the Office procedural manual, the various stages and services in the vocational rehabilitation
process include: (1) initial interview to discuss available services and the claimant’s attempts to return to work;
(2) efforts to place the claimant with his or her previous employer; (3) medical rehabilitation services such as
physical, occupational, and speech therapy, orthotics, prosthetics and psychiatric counseling; (4) job search guidance
and counseling; (5) vocational testing and work evaluations; (6) vocational training when a return to the previous
employer is not feasible; (7) placement with a new employer; and (8) follow-up services after reemployment.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services, Chapter
2.813.6 (December 1993).
17

While appellant did not report to work on or after August 8, 2005, this fact is not particularly relevant with
respect to the current issue before the Board. The Office did not terminate compensation for failure to accept an
offer of suitable work. See 5 U.S.C. § 8106(c); 20 C.F.R. § 10.517.

10

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 7, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0401
Issued: August 28, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 15, 20172 appellant, through counsel, filed a timely appeal from a June 19,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
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.
2

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. One hundred and eighty
days from June 19, 2017, the date of OWCP’s decision, was Saturday, December 16, 2017. In computing a time
period, the date of the event from which the designated period of time begins to run shall not be included while the
last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday. 20 C.F.R.
§ 501.2(f)(2). See also John B. Montoya, 43 ECAB 1148 (1992). The time period was thus extended to the following
business day, Monday, December 18, 2017. Since December 19, 2017, the date the appeal was received by the Clerk
of the Appellate Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the U.S. Postal Service postmark is December 15, 2017, which renders the appeal timely filed. See
20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 11, 2013 as her accepted injuries had ceased
without residuals.
FACTUAL HISTORY
On January 13, 2012 appellant, then a 44-year-old medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on January 6, 2012, while at work, she slipped
and fell when walking through the double doors of the geriatric ward, landing on her buttocks.
She alleged that this incident caused a lumbar sprain and left knee contusion. Appellant stopped
work at the time of injury.
Appellant was first examined by Dr. David L. Wagman, a chiropractor, who had previously
treated appellant on December 15, 2011 for low back pain of unspecified etiology. In an undated
report, Dr. Wagman diagnosed acute soft tissue damage to the “middle and lower aspect of the
back as well as left knee.” In a January 20, 2012 narrative report, he noted that spinal x-rays were
obtained on January 7, 2012. On examination Dr. Wagman found multiple thoracolumbar
subluxations and fixations. He diagnosed acute thoracic and lumbar strain/sprains, possible
sciatica, and a left knee contusion.
Dr. Richard S. Glick, an attending osteopathic physician Board-certified in obstetrics and
gynecology, provided chart notes dated from February 6 to 24, 2012. He noted a history of a
November 7, 2011 back injury that had resolved prior to the claimed January 6, 2012 employment
incident. Dr. Glick diagnosed a lumbar strain and left knee contusion.
In a report dated February 13, 2012, Dr. Glick noted that appellant had returned to work
prior to the claimed January 6, 2012 employment incident from several prior injuries. On
examination he found limited lumbar motion and lumbar paraspinal tenderness. Dr. Glick
diagnosed an acute lumbar strain and sprain “with injury to myoligamentous structures
superimposed on previous back problems,” and a history of a post-traumatic left knee sprain and
contusion. He held appellant off work indefinitely. Dr. Glick prescribed physical therapy.4 He
submitted periodic progress reports.
OWCP accepted the claim for a lumbar sprain and left knee contusion. It paid appellant
wage-loss compensation benefits on the supplemental rolls commencing February 21, 2012.

3

5 U.S.C. § 8101 et seq.

4

Appellant participated in physical therapy treatments from May through November 2012.

2

An April 17, 2012 lumbar magnetic resonance imaging (MRI) scan showed disc
degeneration with a broad-based disc herniation at L3-4, mild facet joint overgrowth at L4-5 and
L5-S1, and possible impingement of the left L4 and L5 nerve roots.
In a report dated April 18, 2012, Dr. Amelia L.A. Tabuena, an attending physiatrist,
diagnosed an unresolved severe lumbar sprain and strain. She obtained electromyography (EMG)
and nerve conduction velocity (NCV) studies on May 8, 2012, which demonstrated multilevel
lumbar radiculopathy with bilateral nerve root involvement at L4 and on the left at L5.
Dr. Tabuena submitted periodic reports holding appellant off work due to an unresolved severe
lumbar sprain and strain, aggravation of lumbar degenerative joint disease, herniated L4 and L5
discs, and bilateral radiculopathy.
On May 24, 2012 OWCP obtained a second opinion from Dr. Robert Allen Smith, a Boardcertified orthopedic surgeon, who opined that the accepted lumbar sprain and left knee contusion
had ceased without residuals. Dr. Smith noted that OWCP had not accepted the herniated lumbar
discs which were the most prominent features of appellant’s clinical presentation. He returned
appellant to full-duty work.
In a report dated June 13, 2012, Dr. Glenn Miller, an attending Board-certified
anesthesiologist specializing in pain management, diagnosed a herniated nucleus pulposus at L34 with left-sided lumbar radiculopathy. He prescribed medication and recommended epidural
steroid injections.5
On December 14, 2012 OWCP notified appellant of its proposed termination of her wageloss compensation and medical benefits, based on Dr. Smith’s opinion as the weight of the medical
evidence. It afforded her 30 days to submit additional evidence or argument.
In response, appellant submitted a January 8, 2013 narrative report from Dr. Glick
following his review of the medical record. Dr. Glick contended that objective medical evidence
clearly established that the accepted lumbar injuries remained active and disabling. He noted that
although appellant had sustained a prior lumbar injury on November 7, 2011, contemporaneous
imaging studies were within normal limits, and she had returned to full duty prior to the January 6,
2012 slip and fall.6 Dr. Glick opined in an April 22, 2013 report that appellant remained disabled
from work.
Appellant also provided a February 11, 2013 narrative report from Dr. Tabuena, who noted
that a December 27, 2012 functional capacity evaluation demonstrated a sedentary demand level
below the physical requirements of appellant’s date-of-injury position. Dr. Tabuena diagnosed an
unresolved severe lumbosacral sprain and strain with myoligamentous injury, a herniated L3-4
disc with lumbar nerve root involvement at L4 and L5, bilateral L4 radiculopathy, and an
unresolved severe left knee contusion. She attributed these diagnoses to the accepted January 6,
2012 employment injury.

5

Appellant underwent a series of approved epidural injections from June 2012 to April 2013.

6

Dr. Glick retired from medical practice on April 1, 2013.

3

OWCP determined that there was a conflict of medical opinion between Dr. Smith, for the
government, and Dr. Glick, for appellant, regarding whether the accepted injuries had resolved.
To resolve the conflict, it selected Dr. Stuart Trager, a Board-certified orthopedic surgeon, as
impartial medical specialist. OWCP provided a copy of the medical evidence of record and a
statement of accepted facts (SOAF). The SOAF noted that under File No. xxxxxx632, appellant
sustained an accepted lumbosacral sprain on December 21, 2011.
Dr. Trager reviewed the medical record and submitted a May 1, 2013 report. He
commented that, according to the SOAF, an “additional date of injury of December 21, 2011 for a
lumbosacral sprain is noted.” Appellant related that while working at the [employing
establishment nursing home in 2001 and 2002 she had pulled a muscle on her back. She was out
for six months and had x-rays, but could not recall that lumbar spine MRI scan had been completed.
Appellant also described a bus door closing on her in “October 2011” after which her back was “a
little sore.” On examination Dr. Trager noted limited lumbar motion in all planes, subjective
tenderness of the spinal midline and left buttock, some pulling in the left thigh on supine straight
leg raising test, and a full range of left knee motion without crepitus. He commented that appellant
“apparently has an established history of back injury, which occurred in approximately 2001 or
2002 and was not noted by multiple other providers, and according to [appellant] caused her to be
out of work for approximately six months.” Dr. Trager opined that because appellant had
degenerative changes in the lumbar spine and a “history of prior low back injury,” it was not
possible to ascertain with medical certainty that her ongoing complaints were related to the
accepted lumbar strain/sprain “rather than to the progression of her underlying degenerative
condition.”
By decision dated June 11, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day, finding that the medical evidence of record established
that the accepted injuries had ceased without residuals. It accorded Dr. Trager’s opinion the
special weight of the medical evidence.
Appellant submitted chart notes dated from June 17 to August 15, 2013 from Dr. Miller,
finding her condition unchanged.
On June 19, 2013 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review. At the hearing, held January 5, 2015, counsel
contended that Dr. Trager found that the accepted injuries had resolved because he assumed
wrongly that appellant sustained herniated lumbar discs in a prior injury although
contemporaneous imaging studies were within normal limits.
By decision dated February 23, 2015, OWCP’s hearing representative affirmed the
June 11, 2013 OWCP decision. The hearing representative found that Dr. Trager’s opinion was
based on an accurate factual and medical history and was sufficiently well rationalized to represent
the special weight of the medical evidence.
On February 23, 2016 appellant, through counsel, requested reconsideration. He
contended that Dr. Trager misstated appellant’s history of injury. Counsel submitted February 9,
2001 and June 7, 2002 lumbar MRI scan reports which noted normal studies with no evidence of
disc herniation.

4

By decision dated March 22, 2016, OWCP denied modification, finding that the additional
evidence submitted was insufficient to outweigh Dr. Trager’s opinion or to cast doubt on its
correctness.
On March 22, 2017 appellant, through counsel, requested reconsideration. Counsel
contended that Dr. Trager based his opinion on assumptions rather than a thorough review of the
evidence of record. He submitted additional reports from Dr. Tabuena dated from April 16 to
June 10, 2016, finding appellant’s condition unchanged. A June 10, 2016 EMG/NCV study
demonstrated chronic bilateral L4 radiculopathy, chronic left-sided L5 radiculopathy, and ongoing
denervation in the L4 and L5 innervated muscles in the left lower extremity.
By decision dated June 19, 2017, OWCP denied modification, finding that Dr. Trager’s
opinion remained controlling, as it was thorough and based on all relevant evidence.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.8
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.10 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.11
Section 8123(a) of FECA provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third physician
shall be appointed to make an examination to resolve the conflict.12 When there are opposing
medical reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.13
In situations where there are opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the

7

Bernadine P. Taylor, 54 ECAB 342 (2003).

8

Id.

9

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

10

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

11

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

12

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

13

Delphia Y. Jackson, 55 ECAB 373 (2004).

5

opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.14
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits.
Dr. Smith, a Board-certified orthopedic surgeon acting as a second opinion physician on
behalf of OWCP, opined, in a May 24, 2012 report, that appellant’s accepted lumbar sprain and
left knee contusion had ceased without residuals. Dr. Glick, an attending Board-certified
obstetrician, submitted reports from February 6, 2012 to January 8, 2013, finding that the accepted
injuries continued to be active and disabling. Dr. Tabuena, an attending physiatrist, submitted
reports from April 18, 2012 to February 11, 2013, in which she opined that appellant remained
disabled for work due to the accepted January 6, 2012 work injuries. She also opined that the
accepted employment injury caused or aggravated a severe lumbosacral strain and herniated L3-4
and L4-5 discs.
OWCP referred appellant to Dr. Trager to resolve the conflict of medical opinion between
Dr. Glick, for appellant, and Dr. Smith, for the government. It based its decision to terminate
appellant’s medical benefits on Dr. Trager’s May 1, 2013 report. The Board finds, however, that
OWCP’s termination of appellant’s medical benefits effective June 11, 2013 must be reversed
because Dr. Trager’s medical opinion is of insufficient probative quality to carry the special weight
of the medical evidence as an impartial medical examiner.
In his May 1, 2013 report, Dr. Trager reviewed appellant’s history of injury and treatment,
and the SOAF. However, the SOAF contains a typographical error.15
The Board finds that Dr. Trager provided insufficient medical rationale for his conclusions
that the accepted injuries had ceased without residuals. Dr. Trager performed a full physical
examination and found no evidence of muscle spasm, weakness, or isolated reflex abnormalities.
However, these physical findings, combined with his acknowledgment of the findings of
abnormalities on testing fail to explain the etiology of the ongoing midline low back pain and
difficulties with activity. Dr. Trager opined that because appellant had a history of lumbar injuries
prior to the accepted January 6, 2012 employment injury, he could not ascertain whether her
ongoing condition remained occupationally related. He opined that he “did not believe it is
possible to include any degree of medical certainty that ongoing complaints are related to the
sprain/strain, which is the accepted injury rather than to the progression of her underlying
degenerative condition.” Dr. Trager’s medical opinion therefore is found to be vague and
incomplete and is insufficient to support termination of wage-loss compensation and medical
benefits.

14

Anna M. Delaney, 53 ECAB 384 (2002).

15
The Board notes that the SOAF does incorrectly state the prior date of injury was December 21, 2011, however,
Dr. Trager’s report noted that the prior injury in OWCP File No. xxxxxx632 was a decade earlier.

6

In determining the probative value of an impartial medical examiner’s report, the Board
considers such factors as the opportunity for and thoroughness of examination performed by the
physician, the accuracy and completeness of the physician’s knowledge of the facts and medical
history, the care of analysis manifested, and the medical rationale expressed by the physician on
the issues addressed to him or her by OWCP.16 Dr. Trager’s opinion and his reasoning is vague
and incomplete in nature.17 It is therefore of greatly reduced probative quality18 and is thus of
insufficient weight to resolve the conflict of medical opinion between Dr. Glick, for appellant, and
Dr. Smith for the government. When an impartial medical examiner fails to provide medical
reasoning to support his or her conclusory statements about a claimant’s condition, it is insufficient
to resolve a conflict in the medical evidence.19
Because Dr. Trager’s report lacks dispositive probative value, the Board finds that OWCP
erred in relying on his opinion as the basis to terminate wage-loss compensation and medical
benefits for the accepted injuries. The Board finds that OWCP has not met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits effective June 11, 2013.20
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective June 11, 2013.

16

James T. Johnson, 39 ECAB 1252, 1256 (1988).

17
See C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7,
2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
18

See Steven S. Saleh, 55 ECAB 169 (2003).

19

See A.R., Docket No. 12-0443 (issued October 9, 2012); see also P.F., Docket No. 13-0728 (issued September 9,
2014); T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report consisting solely of conclusory
statements without supporting rationale is of little probative value).
20

Curtis Hall, 45 ECAB 316 (1994).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 19, 2017 is reversed.
Issued: August 28, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
RESERVES, Fort McCoy, WI, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0763
Issued: March 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 18, 2015 appellant, through counsel, filed a timely appeal from
December 16, 2014 and February 9, 2015 merit decisions 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.2
ISSUES
The issues are: (1) whether OWCP properly reduced appellant’s compensation to zero
based on its determination that his actual wages as a limited-duty tools and parts attendant,
effective October 7, 2014, fairly and reasonably represented his wage-earning capacity; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 9, 2015 OWCP decision and on appeal, appellant
submitted new evidence. The Board, however, is precluded from reviewing evidence which was not before OWCP
at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

(2) whether appellant established that modification of the loss of wage-earning capacity (LWEC)
determination was warranted.
On appeal counsel contends that the LWEC decision should be set aside because it was
based on a position that was not bona fide and, therefore, not suitable for an LWEC
determination. He argues that although the tools and parts attendant position was a classified
position it cannot be used to determine an LWEC because the lifting requirement was modified
from 40 pounds to conform to appellant’s physical restrictions of 10 pounds.
FACTUAL HISTORY
OWCP accepted that on January 14, 2014 appellant, a 50-year-old full-time heavy mobile
equipment repairer, sustained a closed fracture of the left metacarpal bone while removing a
fender in the performance of duty.
In an August 11, 2014 report, Dr. Mark Brenner, an orthopedic surgeon and appellant’s
attending physician, determined that appellant had reached maximum medical improvement and
provided the following permanent restrictions: no lifting with the left hand of objects greater
than 10 pounds.
On October 6, 2014 the employing establishment offered appellant a permanent, limitedduty position with a full-time schedule of eight hours per day, five days a week. The position
was titled a tools and parts attendant. The duties included receiving, storing, identifying, and
issuing tools, parts, and equipment used by shop personnel. The physical requirements did not
require lifting over 10 pounds with the left hand. Appellant accepted the job offer on October 7,
2014, which was to be effective October 19, 2014. The Notification of Personnel Action form
(SF-50) from the Office of Personnel Management also indicated that the position had an
effective date of October 19, 2014.
By decision dated December 16, 2014, OWCP reduced appellant’s compensation to zero
based on its determination that his actual wages as a limited-duty tools and parts attendant which
appellant accepted on October 7, 2014, fairly and reasonably represented his wage-earning
capacity.
On January 6, 2015 appellant, through counsel, requested reconsideration.3
By decision dated February 9, 2015, OWCP denied modification of its December 16,
2014 wage-earning capacity determination.
LEGAL PRECEDENT -- ISSUE 1
Under section 8115(a) of FECA, 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,
3

On February 4, 2015 appellant, through counsel, requested a schedule award. By decision dated March 26,
2015, OWCP granted appellant a schedule award for one percent permanent impairment of the left hand.

2

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.4
OWCP procedures state that, after a claimant has been working for 60 days, it will make
a determination as to whether actual earnings fairly and reasonably represent wage-earning
capacity.5 The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,6 has been codified at section 10.403 of OWCP
regulations. 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.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation to zero.
By decision dated December 16, 2014, OWCP reduced appellant’s compensation to zero,
finding that his actual earnings as a limited-duty tools and parts attendant fairly and reasonably
represented his wage-earning capacity. The Board finds that OWCP’s December 16, 2014 wageearning capacity decision was erroneous. OWCP procedures provide that a wage-earning
capacity determination should not be made until the injured employee has completed 60 days of
employment.8 The record establishes that on October 6, 2014 the employing establishment
offered appellant a full-time, limited-duty position as a tools and parts attendant with restrictions
of no lifting over 10 pounds with the left hand. Appellant accepted the job offer on
October 7, 2014. However, the position was not effective until October 19, 2014. The
Notification of Personnel Action form (SF-50) from the Office of Personnel Management further
establishes that the limited-duty position had an effective date of October 19, 2014. There is no
evidence in the record supporting that appellant worked in the position offered by the employing
establishment for more than 60 days prior to OWCP’s December 16, 2014 decision.9
Consequently, OWCP failed to establish that appellant performed the job for at least 60 days
prior to its wage-earning capacity determination.
The Board, therefore, finds that OWCP failed to follow its established procedures as it
did not show that appellant performed the limited-duty tools and parts attendant position
4

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

5

See L.J., Docket No. 14-0970 (issued August 21, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.815.5 (June 2013) and Chapter 2.814.7(c)
(October 2009).
6

5 ECAB 376 (1953).

7

20 C.F.R. § 10.403(d).

8

See supra note 6.

9

See W.D., Docket No. 11-0157 (issued September 8, 2011) (the Board reversed OWCP’s decision as there was
no evidence in the record supporting that the employee worked in any position offered by the employing
establishment for more than 60 days prior to its October 11, 1995 LWEC determination).

3

consistently for 60 days.10 Thus, OWCP failed to meet its burden to reduce appellant’s
compensation to zero and its December 16, 2014 wage-earning capacity determination will be
reversed.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation to zero based
on its determination that his actual wages as a limited-duty tools and parts attendant fairly and
reasonably represented his wage-earning capacity.11
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 28, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

See L.M., Docket No. 10-0949 (issued December 1, 2010).

11

In view of the Board’s decision, the issue regarding modification of the LWEC determination is moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, Douglasville, PA,
Employer
__________________________________________

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

Docket No. 07-1506
Issued: October 24, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 14, 2007 appellant filed a timely appeal from the Branch of Hearings and
Review’s merit decision dated March 14, 2007 which affirmed the Office of Workers’
Compensation Programs’ November 8, 2006 decision which denied her occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty
FACTUAL HISTORY
On September 12, 2006 appellant, then a 46-year-old rural carrier associate, filed an
occupational disease claim alleging that she sustained a left shoulder injury as the result of lifting
and pulling trays of mail in the performance of duty. She stated that she first became aware of
her condition on March 28, 2006.

Appellant submitted medical evidence in support of her claim. In an August 30, 2006
evaluation statement, Dr. John Donahue, an orthopedic surgeon, diagnosed left shoulder
impingement and possible rotator cuff tear. The Office received a September 29, 2006
authorization request from Dr. Donahue for left shoulder arthroscopic surgery in which he
diagnosed left shoulder impingement, degenerative joint disease and possible rotator cuff tear.
An authorization request form was received for shoulder arthroscopy with the diagnosis of
adhesive capsulitis of shoulder and complete rupture of rotator cuff. The Office also received a
description of the rural carrier position.
On October 5, 2006 the Office informed appellant that additional medical and factual
information was needed to determine whether she was eligible for benefits. Appellant responded
in an October 10, 2006 note. Additional documents were received by the Office including an
October 9, 2006 surgery authorization request and visit notes from March 28 through August 30,
2006 from Dr. Donahue. An April 17, 2006 magnetic resonance imaging (MRI) scan report of
the left humerus revealed a normal examination. An April 12, 2006 MRI scan of the left
shoulder revealed partial tendinopathy of the anterior supraspinatus consistent with tendinitis and
premature osteoarthritis of the glenohumeral joint space. The Office also received an
October 11, 2006 statement from the employing establishment agreeing with appellant’s factual
statements. In an October 17, 2006 note, Dr. Donahue diagnosed left shoulder bursitis and
impingement and stated that appellant would be off work from October 6, 2006 until after
surgery.
On November 8, 2006 the Office denied appellant’s claim on the grounds that the
medical evidence did not establish that her left shoulder condition was causally related to
appellant’s accepted job duties.
On November 13, 2006 appellant requested review of the written record. The Office
received an October 24, 2006 operative report from Dr. Donahue who performed manipulation,
arthroscopic shaving, removal of loose bodies and subacromial decompression for the left
shoulder.
On March 14, 2007 the Branch of Hearings and Review affirmed the Office’s prior
decision which denied appellant’s claim on the grounds that there was no evidence of a causal
relation between appellant’s employment duties and her shoulder condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and 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.1
1

Anthony P. Silva, 55 ECAB 179 (2003).

2

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed, or stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.2
While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty.3
ANALYSIS
Appellant alleged that her left shoulder condition was causally related to factors of her
federal employment as of March 28, 2006. The Board finds that she has submitted insufficient
medical evidence to establish that her left shoulder condition was caused or aggravated by her
federal employment.
The medical evidence established that appellant was diagnosed with left shoulder
impingement and tendinitis. The factual evidence established that she lifted and pulled trays of
mail in the course of her employment. The case turns on whether the evidence establishes that
appellant’s left shoulder impingement is causally related to her lifting and pulling of mail trays.
The evidence generally required to establish causal relationship is rationalized medical opinion
evidence. The medical opinion must be based on a complete factual and medical background
with an accurate history of the claimant’s employment injury and must explain from a medical
perspective how the current condition is related to the injury.4
The evidence does not contain a medical opinion on causal relationship. In an August 30,
2006 evaluation note, Dr. Donahue did not offer an opinion on causal relationship. In a
September 29, 2006 authorization request, he did not opine about the cause of appellant’s
condition. In March 28 through August 30, 2006 visit notes, Dr. Donahue did not describe
appellant’s employment activities nor did he conclude that her job duties caused her condition.
In an October 17, 2006 work excuse note, he did not mention appellant’s work duties nor did he
offer an opinion on causal relationship. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of diminished probative value on the issue of
causal relationship.5 The medical evidence lacks the requisite medical opinion on causal
relation.

2

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

3

Morris Scanlon, 11 ECAB 384, 385 (1960).

4

Joan R. Donovan, 54 ECAB 615 (2003).

5

Conrad Hightower, 54 ECAB 796 (2003).

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The medical opinion needed to establish an occupational disease claim must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 No such opinion has been submitted. As such appellant has failed to submit
medical evidence to establish causal relationship and, therefore, has failed to discharge her
burden of proof to establish that she sustained a condition due to factors of her federal
employment.
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained an occupational
disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2007 and November 8, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6

Donald W. Wenzel, 56 ECAB ___ (Docket No. 05-146, issued March 17, 2005).

4