United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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)
)
)
)
)
)
)
)

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

Docket No. 17-0047
Issued: July 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 14, 2016 appellant filed a timely appeal from an April 19, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.3

1

Appellant timely requested oral argument before the Board. By order dated April 13, 2017, the Board exercised
its discretion and denied the request, finding that the issues could properly be adjudicated based on the evidence of
record. Order Denying Request for Oral Argument, Docket No. 17-0047 (issued April 13, 2017).
2
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its April 19, 2016 decision. The
Board’s review is limited to the evidence that was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish ratable permanent
impairment of the lungs.
FACTUAL HISTORY
On March 1, 1991 appellant, then a 34-year-old equipment specialist, filed an
occupational disease claim (Form CA-1) alleging an exacerbation of asthma from workplace
exposure to chemicals and welding fumes. He first became aware of his condition in 1982 and
realized that it was caused or aggravated by his employment on January 30, 1991. No work
stoppage was attributed to this case. OWCP initially denied the claim but, following a second
opinion examination on March 8, 1993, it accepted the claim for temporary aggravation of
asthma due to chemical exposure. It also found that the accepted condition had ceased on
January 30, 1991, due to the fact that appellant was no longer exposed to the aggravating
condition. OWCP subsequently closed and retired the claim to the Federal Records Center due
to lack of activity. There was no reported medical activity from 1993 until 2013.
On March 13, 2014 appellant requested that OWCP reopen his claim. On March 27,
2014 he filed a claim for a schedule award (Form CA-7).
In an August 19, 2014 letter, OWCP advised appellant of his previously accepted
condition, and instructed him to submit an impairment rating under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).4 He was afforded 30 days to submit the required medical evidence. OWCP
received a September 8, 2014 letter from appellant, but no additional medical evidence.
By decision dated September 23, 2014, OWCP denied the schedule award claim as there
had been no impairment rating provided in accordance with the A.M.A., Guides establishing any
permanent impairment due to his accepted condition.
On October 12, 2014 appellant requested an oral hearing before OWCP’s Branch of
Hearings and Review.
In an October 15, 2014 report, Dr. Plummer estimated a whole person impairment rating
for asthma as 15 to 20 percent. He indicated that appellant had reached maximum medical
improvement (MMI) on August 22, 2014. Dr. Plummer referred to Chapter 5, Table 5-9 and
Table 5-10 on page 104 of the A.M.A., Guides, and opined that appellant had class 2
impairment.5 In his October 15, 2014 letter, Dr. Plummer indicated that appellant’s pulmonary
function was good so long as he used his long-acting bronchodilators and short-acting rescue
inhaler as directed.

4

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

5

The tables to which Dr. Plummer referred appear in the 5th edition of the A.M.A., Guides (2001).

2

By decision dated March 25, 2015, the hearing representative found the case not in
posture for decision. Accordingly, she remanded the case to the district medical adviser (DMA)
for an impairment rating under the 6th edition of the A.M.A., Guides.
OWCP forwarded the case record, including Dr. Plummer’s October 15, 2014 report, to
Dr. Eric Puestow, a Board-certified internist and DMA, for review. In a March 31, 2015 report,
Dr. Puestow opined that the evidence on file was insufficient to calculate an impairment rating as
there were no current pulmonary function studies. He recommended a second opinion evaluation
with a pulmonary specialist.
In a May 4, 2015 report, Dr. Rodrigo F. Morales, a Board-certified pulmonologist and
OWCP referral physician, reviewed the medical record and a statement of accepted facts, which
indicated that appellant’s case had been accepted for aggravation of asthma due to chemical
exposure. He reviewed the May 4, 2015 pulmonary studies. Dr. Morales noted mildly reduced
FVC and FEV1 without obvious airflow obstruction, with significant response to bronchodilator
challenge.6 Dr. Morales noted that appellant had a history consistent with work-related asthma
and had been on therapy with a combination of an inhaled steroid and both long-acting and shortacting bronchodilators. He noted that the physical examination did not show objective evidence
of airway obstruction or excessive airway mucus production. Dr. Morales indicated that the
requirement of continuous therapy for appellant’s asthma symptoms suggested that he had not
reached MMI. Dr. Morales indicated that the post-bronchodilator FEV1 was 82 percent. Based
on the criteria under Table 5-5 of the A.M.A., Guides for rating asthma, he determined that a
finding of FEV1 of 82 percent of predicted placed appellant into class 0. Therefore, Dr. Morales
opined that appellant’s whole person permanent impairment rating for asthma was zero.
On June 8, 2015 OWCP forwarded Dr. Morales’ report and the pulmonary studies to
Dr. Puestow who reviewed the May 4, 2015 pulmonary function studies and indicated that
appellant had reached MMI on May 4, 2015, the date of the studies. Dr. Puestow noted that the
FVC was 79 percent and the FEV1 was 85 percent. Under Table 5-5, page 90 of the A.M.A.,
Guides, he concurred that the FEV1 was the key factor which, with FEV1 of greater than 80
percent, put appellant in class 0 or zero percent permanent impairment of the whole person.
By decision dated June 9, 2015, OWCP denied appellant’s schedule award claim, finding
the weight of the medical evidence rested with the opinion of the second opinion examiner,
Dr. Morales. It noted that the DMA, Dr. Puestow, also concluded that the evidence failed to
establish a permanent, measurable impairment for the accepted condition of asthma. OWCP
noted that Dr. Plummer had not provided an impairment rating based on pulmonary studies.
Appellant timely requested a hearing, which was held on February 17, 2016. He testified
regarding his employment history, that he continued to have respiratory problems, and that he
had been treated by Dr. Plummer for 30 years. Appellant argued that there was a conflict in
medical opinion between Dr. Plummer and Dr. Morales, the second opinion physician.

6

FVC refers to forced vital capacity and FEV1 refers to forced expiratory volume.

3

OWCP received an August 26, 2015 pulmonary function study, as well as an August 26,
2015 report from Dr. Plummer. Dr. Plummer found the pulmonary tests reflected FEV1 was 71
percent of predicted. He found appellant doing quite well.
In a September 4, 2015 report, Dr. Plummer indicated that he reviewed the reports of
Dr. Morales and Dr. Puestow. He noted that both physicians had found a class 0 impairment
rating, based on FEV1 after bronchodilator value of 82 percent of predicted (not the 85 percent as
noted by Dr. Puestow) that the predicted values used in Dr. Morales pulmonary function lab
were identical to those from his lab, and that, under the A.M.A., Guides, Dr. Morales’ postbronchodilator FEV1 placed appellant in a class 0 disability category. Dr. Plummer indicated,
however, that appellant was on chronic therapy. Therefore, Dr. Plummer believed that because
of the chronic inhaled steroid/long acting bronchodilator therapy, plus his symptomatology of
intermittent wheezing he should be placed into a class 1 disability classification.
OWCP also received a March 31, 2016 pulmonary function study.
In an April 19, 2016 decision, the hearing representative affirmed the June 9, 2015
decision. She found that the weight of the medical evidence was afforded to Dr. Morales’
second opinion report that appellant had zero percent permanent impairment, which the medical
adviser had concurred.
LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations set forth the
number of weeks of compensation to be paid for the permanent loss of use of specified members,
functions and organs of the body.7 FECA, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.8 Effective May 1, 2009, schedule awards are determined
in accordance with the sixth edition of the A.M.A., Guides (2009).9
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.10 The list of scheduled members includes
the eye, arm, hand, fingers, leg, foot and toes.11 Additionally, FECA specifically provides for

7

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404.

8

Id. at § 10.404.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
10

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

11

5 U.S.C. § 8107(c).

4

compensation for loss of hearing and loss of vision.12 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina, and skin.13 Neither FECA
nor the regulations provide for the payment of a schedule award for the permanent loss of use of
the back or the body as a whole.14 Compensation for total loss of use of a single lung is 156
weeks.15
Although FECA does not specifically provide for compensation for whole person
impairment, the measurement of lung function warrants special consideration. Table 5-5,
Asthma, A.M.A., Guides (6th ed. 2009), provides whole person impairment ratings based on a
designated class (0 to 4) of impairment. Class 0 is used for any maximum FEV1 percentage
predicted greater than 80 percent. Class 1 is used for FEV1 percentage predicted from 70 to 80
percent. The FECA Procedure Manual provides that lung impairment should be evaluated in
accordance with the A.M.A., Guides insofar as possible. It further provides that schedule awards
are based on the loss of use of both lungs, and the percentage for the particular class of whole
person respiratory impairment will be multiplied by 312 weeks (twice the award for loss of
function of one lung) to obtain the number of weeks payable.16
ANALYSIS
In March 1993, OWCP accepted appellant’s occupational disease claim for temporary
aggravation of asthma due to chemical exposure. In March 2014, appellant requested a schedule
award, which OWCP denied. The Board finds that appellant has not established a permanent
impairment for schedule award purposes.
In his October 15, 2014 report, Dr. Plummer indicated that appellant had reached MMI
on August 22, 2014. He opined that appellant had a class 2 impairment rating for asthma with
previous exposure to chemicals and airway irritants which he estimated was 15 to 20 percent
whole person permanent impairment. While he indicated appellant’s impairment was calculated
under Table 5-9 and Table 5-10, Dr. Plummer used the fifth edition of the A.M.A., Guides.
OWCP, however, currently uses the sixth edition of the A.M.A., Guides to calculate schedule
awards.17 A medical opinion, based on an inappropriate edition of the A.M.A., Guides, is of
diminished probative value in determining the extent of permanent impairment.18
12

Id.

13

5 U.S.C. § 8107(c)(22); 20 C.F.R. § 10.404(b).

14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

15

20 C.F.R. § 10.404(b).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(c)(1); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.4d(1)(c).
17

See supra note 8.

18

See P.O., Docket No. 15-1631 (issued June 2, 2016); Fritz A. Klein, 53 ECAB 642 (2002).

5

In his September 4, 2015 letter, Dr. Plummer indicated that appellant could plead that he
should be placed in the class 1 disability category because of the fact he was on chronic therapy
with his inhaled corticosteroid and long-acting bronchodilator plus his symptomatology. He also
indicated that appellant’s FEV1 without bronchodilator would place appellant into the class 1
disability category. However, Dr. Plummer has not provided a basis for his enhanced rating, and
has agreed with Dr. Morales’ finding of FEV1 as predicted at 82 percent. The FEV1 at 82
percent clearly places him into class 0 under Table 5-5, the table utilized for rating impairment
due to asthma. The Board has long held that an opinion which is not based upon the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of
little probative value in determining the extent of a claimant’s impairment.19 Dr. Plummer’s
opinion is therefore of limited probative value and is insufficient to establish that appellant is
entitled to a schedule award for permanent impairment of his lungs.
The second opinion physician, Dr. Morales, and OWCP’s medical adviser, Dr. Puestow,
applied Table 5-5 of the A.M.A., Guides to determine appellant’s permanent lung impairment
due to asthma. Based on objective testing of May 4, 2015, the physicians determined that the
proper class was 0 and the impairment was zero. Dr. Morales determined that the postbronchodilator FEV1 of 82 percent of predicted placed appellant as class 0, which resulted in a
whole person permanent impairment rating of zero. Dr. Puestow, the medical adviser, also
reviewed the May 4, 2015 pulmonary function studies. While he noted that the postbronchodilator FEV1 was 85 percent, that rating would also place appellant in class 0, or zero
percent permanent impairment of the lungs. The Board notes that under Table 5-5 of the
A.M.A., Guides, FEV1 over 80 percent represents class 0 or zero percent whole percent
impairment. Accordingly, this represents a proper application of Table 5-5 and there were no
contrary findings.
Appellant has not submitted sufficient medical evidence to establish permanent
impairment of the lungs. He may, at any time, 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 has not met his burden of proof to establish a ratable
permanent impairment of the lungs.

19

Carl J. Cleary, 57 ECAB 563 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the April 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 27, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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B.L., Appellant
)
)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Westbury, NY, Employer
)
___________________________________________ )
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0227
Issued: July 23, 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 November 9, 2016 appellant, through counsel, filed a timely appeal from a June 28, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act 2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish lumbar and additional
cervical conditions causally related to the accepted February 6, 2015 employment injury.

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 6, 2015 appellant, then a 54-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that, on February 6, 2015, while in the performance of duty, a dock plate slipped and
a postal container fell towards her causing her to hit her head, and fall to her knees. She also
indicated that she had a bruise. Appellant stopped work on that date.
In a February 13, 2015 report, Dr. Brett Spain, an osteopath Board-certified in family and
sports medicine, noted appellant’s chief complaints of neck and lower back pain from a work
accident on February 6, 2015. He also advised that she complained of bilateral upper extremity pain
and numbness in the right hand. Dr. Spain examined appellant and assessed cervicalgia; cervical
radiculopathy; brachial neuritis or radiculitis, not otherwise specified (nos); degeneration of cervical
intervertebral disc; neck sprain; lumbar sprain, and pain. He diagnosed cervical strain;
radiculopathy; degenerative disc disease; possible herniated nucleus pulposus (HNP); and low back
pain, nonradicular, lumbosacral sprain.
In a separate report also dated February 13, 2015, entitled “doctor’s initial report,” Dr. Spain
noted that February 6, 2015 was the date of injury, and further noted that based on the claim history
it was “work related.” He described appellant’s complaints of numbness, tingling, pain, and
throbbing. Dr. Spain checked a box marked “yes” with regard to whether the incident described by
appellant was the cause of the illness. He also checked a box marked “yes” with regard to whether
appellant’s complaints were consistent with the history of injury and illness and with regard to
whether the history of the injury/illness was consistent with objective findings. Dr. Spain advised
that appellant was 100 percent disabled and recommended diagnostic testing. He diagnosed
cervicalgia, brachial neuritis/radiculitis, neck sprain and strain, and lumbago.
In a March 2, 2015 development letter, OWCP advised appellant that when her claim was
received, it appeared to be a minor injury that resulted in minimal or no lost time from work and the
employing establishment did not controvert continuation of pay (COP) or challenge the claim and
payment of a limited amount of medical expenses was administratively approved. However, the
claim was being reopened because appellant had not returned to work in a full-time capacity. OWCP
advised her that additional factual and medical evidence was needed. It also requested a physician’s
opinion explaining how the reported work incident caused or contributed to appellant’s condition.
OWCP noted that Dr. Spain provided several diagnoses, but failed to provide a well-reasoned
opinion based on objective findings as to how the claimed work incident of February 6, 2015 directly
caused or aggravated the diagnosed medical conditions. It informed appellant of the type of
evidence needed to support her claim and afforded her 30 days to respond.
In an accompanying report, also dated February 13, 2015, Dr. Spain noted that appellant was
temporarily totally disabled due to cervicalgia, cervical radiculopathy (brachial neuritis); or
radiculitis (nos); degeneration of cervical intervertebral disc; and neck sprain, lumbar sprain, and
lumbar pain. He advised that appellant was unable to work for three weeks and would be
reevaluated. Dr. Spain diagnosed cervical strain, radiculopathy, degenerative disc disease, possible
HNP, low back pain, and nonradicular lumbosacral sprain. He completed a duty status report (Form
CA-17) of the same date. Dr. Spain reiterated that appellant was unable to work at this time.
OWCP received a February 6, 2015 report entitled “patient care report” and physical therapy
notes dating from February 17 to March 17, 2015.

2

By decision dated April 1, 2015, OWCP denied appellant’s claim as she had not established
an injury, as alleged. It found that the evidence did not demonstrate a claimed medical condition
causally related to established work-related events.
On March 24, 2016 counsel requested reconsideration. He argued that appellant had
submitted the requisite medical evidence to establish her claim. Counsel argued that the medical
evidence was rationalized and established that she suffered from debilitating conditions.
OWCP received three doctor’s progress reports dated February 6, 2015. In a report,
Dr. Steven Lev, a Board-certified diagnostic radiologist, diagnosed a headache and history of fall.
In another report of even date, Dr. Kathyrn Draves, a Board-certified diagnostic radiologist,
diagnosed a headache and acute pain due to trauma. In a third report of the same date, Dr. Grace
Ting, an emergency medicine physician, diagnosed: contusion of the face/scalp and neck;
cervicalgia headache; and osteoarthritis, localized, nos of the shoulder.
OWCP received February 6, 2015 notes from a physician assistant, who diagnosed facial
contusion; contusion of other parts of head, degenerative joint disease (DJD) and “furuncle of skin.”
It also received diagnostic reports dated February 6, 2015. The notes included a computerized
tomography (CT) of the head read by Dr. Lev, which revealed that appellant had an unremarkable
maxillofacial CT, no acute intracranial pathology. A noncontrast tomography of the cervical spine
read by Dr. Lev, which revealed no fracture or dislocation. A noncontrast CT of the head read by
Dr. Asim Maher, an osteopath, and Dr. Lev, revealed no acute intracranial pathology. Likewise, the
maxillofacial CT read by Drs. Lev and Maher was unremarkable. OWCP received a copy of the
February 6, 2015 patient care report.
In April 28, 2015 reports, Dr. Spain advised that appellant was unable to work and
diagnosed: cervicalgia; cervical radiculopathy (brachial neuritis or radiculitis nos); degeneration of
cervical intervertebral disc and displaced intervertebral disc. He checked the box marked “yes” in
response to whether the work incident was the cause of the injury or illness.
In a May 13, 2015 report, Dr. Anil Patel, Board-certified in family medicine, noted that on
February 6, 2015 appellant was at work when she was hit by a piece of heavy metallic equipment
to the left side of the head, above the eye. He related that appellant became dizzy and had blurred
vision, and fell on the ground and hit her head, neck, and back. Dr. Patel diagnosed: lumbago;
lumbar disc displacement; lumbosacral neuritis; lumbosacral disc degeneration; lumbosacral
spondylosis; cervical disc displacement; cervicalgia; cervical disc degeneration; and cervical
spondylosis. He opined that as a result of the injury, appellant was suffering from moderate-tosevere neck pain.
In a May 18, 2015 report, Dr. Karen Avanesov, a Board-certified orthopedic surgeon, noted
that appellant injured her neck and low back after a piece of equipment fell on her and knocked her
on the ground while at work on February 6, 2015. He indicated that appellant had “no prior history
of neck or back pain.” Dr. Avanesov related that appellant complained of posterior neck pain which
radiated down the right arm and intermittently into the hand causing numbness and tingling and
complained of low back pain which was localized and did not radiate to her legs. He advised that
appellant was unable to work since the accident and diagnosed: cervicalgia; cervical radiculopathy;
lumbar sprain; pain in the shoulder and impingement syndrome. Dr. Avanesov also filled out a
doctor’s initial report form and diagnosed pain in the joint of the shoulder region. He also checked
3

the box marked “yes” in response to whether he believed the incident was the cause of appellant’s
diagnosed conditions.
In a May 26, 2015 duty status report (Form CA-17), Dr. Spain noted that a postal container
tipped over and hit appellant on the head. He diagnosed right shoulder impingement and cervical
degenerative disc disease and advised that appellant was unable to work. In a May 26, 2015 report,
Dr. Spain noted that appellant was being evaluated for right shoulder pain. He indicated that she
had a prior history of right shoulder pain and explained that she received a corticosteroid injection
for a partial thickness rotator cuff tear in December 2014. Dr. Spain noted that she was reinjured in
February with her work injury. He diagnosed pain in shoulder and impingement syndrome.
Dr. Spain also completed a doctor’s progress report on May 26, 2015 and repeated the diagnoses of
pain in the shoulder region. He also diagnosed other affections of the shoulder region and checked
the box marked “yes” with regard to whether the incident was the cause of the injury or illness.
In a June 3, 2015 report, Dr. Charles Ruotolo, a Board-certified orthopedic surgeon, noted
that appellant was seen for chief complaints of right shoulder pain. He indicated that she had initially
done well with physical therapy for her partial rotator cuff tear and that she had returned to work.
Dr. Ruotolo related that appellant indicated that a rack fell onto her shoulder on February 6, 2015
while at work and that she had pain with elevation of the arm. He diagnosed: impingement
syndrome; peripheral enthesopathies and allied syndromes; and partial rotator cuff tear. Dr. Ruotolo
opined that “within a reasonable degree of medical certainty the injury of her right shoulder is due
to the industrial accident on [February 6, 2015].”
In a June 22, 2015 duty status report (Form CA-17), Dr. Spain diagnosed partial rotator cuff
tear due to the injury. He indicated that appellant was unable to work. In a June 23, 2015 disability
certificate, Dr. Spain indicated that appellant was temporarily disabled due to right shoulder pain.
By decision dated June 28, 2016, OWCP accepted the claim for contusion of face, scalp, and
neck (except eye encounter).
In a separate decision dated June 28, 2016, OWCP affirmed in part and vacated in part the
April 1, 2015 decision. It found that the hospital report dated February 6, 2015 contained a
diagnosis of contusion of face, and contusion of other parts of head. OWCP explained that it was
reasonable to deduce that a piece of equipment hitting her on the face would result in the
aforementioned diagnoses. However, it explained that the diagnosis of left shoulder strain was not
an accepted condition. OWCP explained that the treating physicians had not submitted a medical
report containing rationale explaining how a mail rack hitting appellant on the head and her falling

4

as a result could either directly cause or aggravate the diagnoses of cervical radiculopathy,
degeneration of cervical intervertebral disc, neck sprain, and lumbar sprain.3
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty, as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty, OWCP
begins with an analysis of whether “fact of injury” has been established. Generally, fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.5 The second component is whether the employment incident caused a personal injury.6
An employee may establish that an injury occurred in the performance of duty as alleged, but fail to
establish that the disability or specific condition for which compensation is being claimed is causally
related to the injury.7
Causal relationship is a medical question that generally requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be expressed
in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
3

OWCP also explained that the diagnoses of cervicalgia and lumbago referred to neck and back pain, respectively,
which was not a valid diagnosis. It explained that, under FECA, it was a symptom of a valid diagnosed medical
condition. OWCP also found that the treating physicians had not explained how the work injury of February 26, 2015
could have resulted in the additional conditions to include: lumbar disc displacement; lumbosacral neuritis; lumbosacral
disc degeneration; lumbosacral spondylosis; cervical disc displacement; cervical disc degeneration; cervical
spondylosis; right shoulder impingement; cervical degenerative disc disease; impingement syndrome; peripheral
enthesopathies and allied syndromes; and a partial rotator cuff tear. It further found a discrepancy between the hospital
report dated February 6, 2015 and the report from Dr. Patel. OWCP explained that the hospital report revealed that the
mail rack fell and hit appellant on the head, and that she fell on her knees. Additionally, appellant complained of pain
to the left side, left side forehead, left side neck to shoulder. Alternatively, OWCP noted that the history provided by
Dr. Patel indicated that a heavy metallic equipment hit appellant on the left side of the head above the eye, that she got
dizzy, had blurred vision, and fell to the ground hitting her head, neck, and back. It concluded that the accounts of the
work injury were not consistent; it was unclear if the treating physicians based their opinions upon a complete and
accurate history.
4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Robert G. Morris, 48 ECAB 238 (1996).

9

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

explaining the nature of the relationship between the diagnosed condition and appellant’s specific
employment factor(s).10
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA. 11
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.12
ANALYSIS
The Board finds that the medical evidence of record contains no reasoned explanation of
how the specific employment injury on February 6, 2015 caused or aggravated any conditions other
than the above noted accepted conditions of contusion of face, scalp, and neck (except eye
encounter).
OWCP received a February 6, 2015 patient care report and physical therapy reports dating
from February 6 to May 1, 2015. However, healthcare providers such as physical therapists are not
considered “physician[s]” as defined under FECA. Their opinions are of no probative value. 13
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.14
OWCP also received diagnostic reports in support of appellant’s claim. In a report dated
February 6, 2015, Dr. Lev diagnosed: headache and history of fall. In another report of even date,
Dr. Drave diagnosed: headache and acute pain due to trauma. In the third report of that date,
Dr. Ting diagnosed: contusion of the face/scalp and neck; cervicalgia headache; and osteoarthritis,
localized, nos of the shoulder. However, these reports merely reported findings and did not contain
an opinion regarding the cause of any reported condition. The Board has held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship. These reports, therefore, are insufficient to establish
appellant’s claim.
OWCP received numerous reports from Dr. Spain. They included his February 13, 2015
reports in which he noted appellant’s chief complaints of neck and lower back pain from a work
accident on February 6, 2015. Dr. Spain diagnosed: cervical strain; radiculopathy; degenerative
disc disease; possible HNP; and low back pain, nonradicular, lumbosacral sprain. He indicated that
appellant was unable to work at this time. However, other than providing the diagnoses noted,
Dr. Spain did not specifically address causal relationship by stating how a specific activity at work
on February 6, 2015, caused or aggravated an injury. The mere recitation of patient history does
10

Id.

11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

12

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
13

Roy L. Humphrey, 57 ECAB 238 (2005).

14

Supra note 9.

6

not suffice for purposes of establishing causal relationship between a diagnosed condition and the
employment incident.15 Without explaining physiologically how the accepted employment incident
caused or contributed to the diagnosed conditions, the physician’s reports are of limited probative
value.16
In a separate report also dated February 13, 2015, Dr. Spain noted that February 6, 2015 was
the date of injury, and noted that the condition was “work related.” He described appellant’s
complaints of numbness, tingling, pain and throbbing. Dr. Spain checked the box marked “yes”
with regard to whether the incident described by appellant was the cause of the illness. He also
checked the box marked “yes” with regard to whether appellant’s complaints were consistent with
the history of injury and illness and with regard to whether the history of the injury/illness was
consistent with objective findings. Dr. Spain advised that appellant was 100 percent disabled and
diagnosed: cervicalgia; brachial neuritis/radiculitis; neck sprain and strain; and lumbago. However,
as the Board has held, the checking of a box “yes” in a form report, without additional explanation
or rationale, is insufficient to establish causal relationship.17
In an April 28, 2015 report, Dr. Spain diagnosed: cervicalgia; cervical radiculopathy
(brachial neuritis or radiculitis nos); degeneration of cervical intervertebral disc; and displaced
intervertebral disc. He checked a box marked “yes” in response to whether the work incident was
the cause of the injury or illness. However, this was insufficient as Dr. Spain provided no reasoned
opinion on causal relationship. In the absence of a medical report providing a diagnosed condition
and a reasoned opinion on causal relationship with the employment incident, appellant did not meet
her burden of proof.18
In a May 26, 2015 report, Dr. Spain noted that appellant was being evaluated for right
shoulder pain. He indicated that she had a prior history of right shoulder pain and explained that
she received a corticosteroid injection for a partial thickness rotator cuff tear in December 2014.
Dr. Spain noted that she was reinjured in February with her work injury. He diagnosed: pain in
shoulder and impingement syndrome. Dr. Spain also completed a doctor’s progress report on
May 26, 2015 and repeated the diagnoses of pain in the shoulder region. He also diagnosed other
affections of the shoulder region and checked the box marked “yes” with regard to whether the
incident was the cause of the injury or illness. However, as noted, the checking of a box “yes” in a
form report, without additional explanation or rationale, is not sufficient to establish causal
relationship.19 This is especially important, as he noted that she had a prior history of a partial
thickness rotator cuff tear in December 2014.
In a May 26, 2015 duty status report, Dr. Spain noted that a postal container tipped over and
hit appellant on the head. He diagnosed right shoulder impingement and cervical degenerative disc
disease and advised that appellant was unable to work. In his June 22 and 23, 2015 reports,
15

See J.G., Docket No. 17-1382 (issued October 18, 2017).

16

See A.B., Docket No. 16-1163 (issued September 8, 2017).

17

Calvin E. King, 51 ECAB 394 (2000); Linda Thompson, 51 ECAB 694 (2000).

18

Deborah L. Beatty, 54 ECAB 340 (2003).

19

Supra note 17.

7

Dr. Spain diagnosed partial rotator cuff tear due to the injury and indicated that appellant was unable
to work. However, he did not offer any opinion as to the cause of the condition. As noted above,
Dr. Spain has not explained how the incident caused the conditions, or aggravated the preexisting
conditions. Medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.20
In a May 13, 2015 report, Dr. Patel noted that on February 6, 2015 appellant was at work
when she was hit by a piece of heavy metallic equipment to the left side of the head, above the eye.
He related that appellant became dizzy and had blurred vision, and fell on the ground and hit her
head, neck, and back. The Board initially notes that his description of the incident varies slightly
from appellant’s description of the incident on her claim form. This is the first time her eye is
mentioned or that she noted dizziness. Appellant indicated that she was hit on the head, fell to her
knees and had a bruise. It is well established that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.21 Additionally, Dr. Patel diagnosed lumbago; lumbar
disc displacement; lumbosacral neuritis; lumbosacral disc degeneration; lumbosacral spondylosis;
cervical disc displacement; cervicalgia; cervical disc degeneration; and cervical spondylosis. He
did not explain how these conditions were caused by the incident on February 6, 2015.
In a May 18, 2015 report, Dr. Avanesov noted that appellant injured her neck and low back
after a piece of equipment fell on her and knocked her on the ground while at work on
February 6, 2015. He indicated that appellant had “no prior history of neck or back pain.” However,
this is not accurate as the record reflects degenerative disc disease and a prior history of at least right
shoulder pain and a rotator cuff tear in 2014. Dr. Avanesov does not appear to be aware of the prior
conditions. He related that appellant complained of posterior neck pain which radiated down the
right arm and intermittently into the hand causing numbness and tingling and complained of low
back pain which was localized and did not radiate to her legs. Dr. Avanesov advised that she was
unable to work since the accident and diagnosed: cervicalgia; cervical radiculopathy; lumbar sprain;
pain in the shoulder; and impingement syndrome. He also diagnosed pain in the joint of the shoulder
region. Dr. Avanesov checked the box marked “yes” in response to whether he believed the incident
was the cause of appellant’s diagnosed conditions. However, without an explanation as to how he
arrived at his opinion, his report is of little probative value.22
In a June 3, 2015 report, Dr. Ruotolo noted that appellant indicated that a rack fell onto her
shoulder on February 6, 2015 while at work. He diagnosed: impingement syndrome; peripheral
enthesopathies and allied syndromes; and partial rotator cuff tear. Dr. Ruotolo opined that “within
a reasonable degree of medical certainty the injury of her right shoulder is due to the industrial
accident on [February 6, 2015].” While such terms such as “probably” or “most likely” need not
constitute a speculative opinion, depending upon the context of usage, such words may mean that
the physician is expressing reasonable certainty, as opposed to absolute certainty.23 However, he
20

S.E., Docket No. 08-2214 (issued May 6, 2009).

21

Douglas M. McQuaid, 52 ECAB 382 (2001).

22

See supra note 14.

23

S.T., Docket No. 08-1675 (issued May 4, 2009).

8

did not explain how he formulated his opinion. A medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.24
Because the medical reports submitted by appellant do not address how the February 6, 2015
work injury caused or aggravated additional diagnosed conditions, these reports are of limited
probative value25 and are insufficient to establish appellant’s claim.
On appeal counsel for appellant argues that OWCP failed to accept all of the injuries and
conditions, which were supported by the medical evidence. The Board notes that the medical reports
of record do not address how the February 6, 2015 work injury caused or aggravated any other
diagnosed 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 did not meet her burden of proof to establish lumbar and
cervical conditions causally related to the accepted February 6, 2015 employment injury.

24

T.M., Docket No. 08-0975 (issued February 6, 2009).

25

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

9

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 23, 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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONS
INSTITUTION -- ELKTON, Lisbon, OH,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0546
Issued: November 14, 2018

Case Submitted on the Record

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

JURISDICTION
On January 22, 2018 appellant, through counsel, filed a timely appeal from a November 14,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her bilateral
carpal tunnel syndrome is causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On August 9, 2016 appellant, then a 54-year-old tool room officer, filed an occupational
disease claim (Form CA-2) alleging that, on or before February 19, 2016, she sustained moderateto-severe right carpal tunnel syndrome and mild left carpal tunnel syndrome in the performance of
duty. She noted that under OWCP File No. xxxxxx560, OWCP had accepted her January 27, 2014
claim for a right hip and groin injury, right de Quervain’s tenosynovitis, and a partial tear of the
triangular fibrocartilage complex (TFCC) as a result of a slip and fall on ice in the performance of
her federal employment duties. Appellant explained that she initially submitted medical evidence
relating to her bilateral carpal tunnel syndrome under OWCP File xxxxxx560, however, OWCP
instructed her to file a new occupational disease claim.
In a report dated February 19, 2016, Dr. Leslie J. Schwendeman, an attending Boardcertified orthopedic surgeon, noted appellant’s history of a January 27, 2014 occupational right
wrist injury sustained when she “fell on the ice at work” and also fractured her pelvis. Appellant
was subsequently diagnosed with right de Quervain’s tenosynovitis, treated with bracing and an
injection. Dr. Schwendeman elaborated in a report dated April 15, 2016 that appellant had a
possible collagen disorder. On examination he found normal sensation throughout both hands
with no vascular abnormalities or thenar atrophy. Dr. Schwendeman reported that March 16, 2016
electromyography (EMG) and nerve conduction velocity (NCV) studies demonstrated moderate
right and mild left carpal tunnel syndrome, and C6-7 and C7-T1 radiculopathy. He diagnosed right
carpal tunnel syndrome, de Quervain’s disease of the radial styloid, other articular cartilage
disorders of the right wrist, and cervical spondyloarthropathy.
In a report dated June 15, 2016, Dr. Schwendeman noted that a magnetic resonance
imaging (MRI) scan study of the right hand and wrist demonstrated some fluid around the first
dorsal compartment, carpometacarpal osteoarthritis, and de Quervain’s tenosynovitis with a partial
tear. On examination he found negative Tinel’s, Phalen’s, and compression signs, and a negative
Finkelstein test. Dr. Schwendeman diagnosed right radial styloid tenosynovitis and a right forearm
articular cartilage injury. He explained that appellant’s “current exam [did] not match her MRI
[scan] findings.” Appellant’s significant joint laxity indicated a possible congenital collagen
disorder.
By development letter dated August 11, 2016 and reissued August 25, 2016, OWCP
advised appellant of the type of additional factual and medical evidence needed to establish her
occupational disease claim, including factual corroboration of the identified work factors and a
report from her physician explaining how and why those factors would have caused the claimed
condition. It afforded her 30 days to provide the requested information.
In response, appellant provided a September 1, 2016 statement. She attributed the claimed
carpal tunnel syndrome to repetitive upper extremity motion at work, including using keys to
unlock doors, gates, cabinets, and tool chests, clipping and unclipping her keys from her duty belt,

2

turning combination locks on safes and filing cabinets, opening and closing drawers, pulling 135
or more files a day with her right hand, data entry, tool engraving, shredding files, and writing
minutes. Appellant contended that she had performed these tasks on a daily basis for 19 years.
She noted that the January 27, 2014 right wrist injury accepted under OWCP File No. xxxxxx560
also contributed to the development of right carpal tunnel syndrome.
By decision dated September 16, 2016, OWCP denied appellant’s claim, finding that fact
of injury had not been established.
On September 26, 2016 appellant requested reconsideration. She submitted an undated
report from Dr. John L. Dunne, an attending osteopathic physician Board-certified in family
practice. Dr. Dunne noted treating appellant from January 30 to December 23, 2014 for a fall on
snow and ice at work. He diagnosed articular cartilage disorders of the right wrist, severe right
carpal tunnel syndrome, and right radial styloid tenosynovitis. Dr. Dunne attributed these
conditions to a February 19, 2016 fall at work.3
By decision dated December 15, 2016, OWCP modified its prior decision to reflect that
appellant had established fact of injury, but denied the claim as the medical evidence submitted
was insufficient to establish causal relationship.
On January 9, 2017 appellant requested reconsideration.
By decision dated March 23, 2017, OWCP denied reconsideration of the merits of the
claim because appellant had not submitted new and relevant evidence or legal argument.
On April 12, 2017 appellant again requested reconsideration. In a June 30, 2017 statement,
she explained that OWCP instructed her to file a new claim for bilateral carpal tunnel syndrome
under the present claim, OWCP File No. xxxxxx059, as OWCP File No. xxxxxx560 concerned
only the right wrist injury sustained on January 27, 2014. Appellant asserted that ambulating with
crutches following the accepted January 27, 2014 pelvic and coccygeal fractures put additional
stress on both wrists. She submitted additional medical evidence.
In a December 20, 2016 report, prepared pursuant to OWCP File No. xxxxxx560,
Dr. Dunne opined that the accepted January 27, 2014 right wrist injury had progressed to
compressive median neuropathy due to its inherent severity and the physical stress of ambulating
on crutches. He also opined that appellant’s “continued work duties of data entry, typing, and
constantly turning keys in locking and unlocking prison doors, gates, cabinets, tool chests, etc., is
all contributing to her carpal tunnel findings.” Appellant provided a second copy of Dr. Dunne’s
undated report, in which she blacked out OWCP File No. xxxxxx560 and substituted OWCP File
No. xxxxxx059. She also blacked out the January 27, 2014 date of injury and replaced it with
February 19, 2016.

3

Appellant also provided a March 16, 2016 EMG and NCV report which demonstrated mild-to-moderate right
carpal tunnel syndrome and borderline-to-mild left carpal tunnel syndrome. She also submitted a physical therapy
appointment log.

3

By decision dated July 12, 2017, OWCP denied modification of its prior decision, finding
that Dr. Dunne’s new undated report contained insufficient medical rationale to establish causal
relationship. It found that Dr. Dunne did not set forth his reasoning in support of his conclusion
that the accepted repetitive work duties contributed to the claimed carpal tunnel syndrome.
On August 18, 2017 appellant requested reconsideration. In a letter dated September 5,
2017, counsel asserted that new medical evidence was sufficient to meet appellant’s burden of
proof to establish causal relationship. He submitted a report dated July 25, 2017 from Dr. Dunne,
who opined that repetitive pinching, gripping, and grasping at work over a 20-year period was “the
direct and proximate cause” of appellant’s bilateral carpal tunnel syndrome. Dr. Dunne noted that
the medical literature was “quite clear in the causative role that repetitive grasping and gripping
and pinching activities play in the development of carpal tunnel syndrome.”
By decision dated November 14, 2017, OWCP denied modification of its prior decision,
finding that Dr. Dunne’s July 25, 2017 report was insufficient to establish causal relationship. It
found that Dr. Dunne had changed his opinion on the etiology of appellant’s bilateral wrist
condition without explanation. Although Dr. Dunne previously attributed appellant’s carpal
tunnel syndrome to the January 27, 2014 fall and ambulating with crutches afterward, he newly
opined that repetitive pinching, gripping, and grasping over a 20-year period caused the condition.
OWCP found that the equivocal nature of Dr. Dunne’s opinion diminished its probative value.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.6
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.7 The physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be

4

See supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Robert G. Morris, 48 ECAB 238 (1996).

4

based on a complete factual and medical background.8 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained bilateral carpal tunnel syndrome causally related to the accepted factors of her federal
employment.
Appellant alleged that she sustained bilateral carpal tunnel syndrome due to repetitive
upper extremity motions in the performance of her federal duties, including data entry, turning
keys, tool engraving, pulling files, shredding files, and writing minutes. She also believed that
right de Quervain’s tendinitis and a partial tear of the right TFCC accepted under OWCP File No.
xxxxxx560, as well as ambulating with crutches due to a right hip injury accepted under OWCP
File No. xxxxxx560, contributed to the development of bilateral carpal tunnel syndrome.
Appellant provided reports dated from February 19 to June 15, 2016 from
Dr. Schwendeman. He noted the injuries accepted under OWCP File No. xxxxxx560.
Dr. Schwendeman diagnosed bilateral carpal tunnel syndrome, right de Quervain’s tenosynovitis,
and a possible idiopathic cartilage disorder of the right wrist. However, he did not provide medical
rationale attributing bilateral carpal tunnel syndrome to the accepted factors of appellant’s federal
employment. Therefore, Dr. Schwendeman’s opinion is insufficient to meet appellant’s burden of
proof to establish causal relationship.10
Appellant also submitted reports from Dr. Dunne who treated appellant for the
employment-related January 27, 2014 fall beginning on January 30, 2014. In an initial undated
report, Dr. Dunne opined that the January 27, 2014 employment injury caused articular cartilage
disorders of the right wrist, severe right carpal tunnel syndrome, and right radial styloid
tenosynovitis. He altered his opinion in a December 20, 2016 report, finding that the bilateral
carpal tunnel syndrome resulted from progression of the January 27, 2014 right wrist injury and
the cumulative effects of repetitive motion at work. Dr. Dunne changed his reasoning again in a
report dated July 25, 2017, concluding that repetitive pinching, gripping, and grasping at work
over a 20-year period directly caused appellant’s bilateral carpal tunnel syndrome, without any
mention of the January 27, 2014 employment-related injuries. The Board finds that the equivocal
nature of Dr. Dunne’s opinion on the critical issue of causal relationship diminishes its probative
value.11 It lacks the definite, persuasive quality needed to meet appellant’s burden of proof to

8

Supra note 6.

9

Id.

10

Supra note 6.

11

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

5

establish an employment-related condition.12 Furthermore, Dr. Dunne failed to provide a
sufficient explanation as to the mechanism of injury, namely how the identified work duties would
cause or aggravate appellant’s bilateral carpal tunnel syndrome.13 As such, Dr. Dunne’s reports
are of limited probative value and insufficient to meet her burden of proof.14
In order to establish causal relationship, a physician must provide an opinion that the injury
or condition for which compensation is claimed is causally related to federal employment and such
relationship must be supported with affirmative evidence, explained by medical rationale, and be
based upon a complete and accurate medical and factual background of the claimant.15 Appellant
was provided an opportunity to submit evidence to establish how the claimed left lower extremity
injury occurred. By development letter dated August 11, 2016 and reissued August 25, 2016,
OWCP requested that appellant obtain an opinion from her attending physician with medical
rationale addressing causal relationship. She has not submitted a medical report sufficient to show
that the diagnosed bilateral carpal tunnel syndrome was causally related to the accepted work
factors, and thus did not meet her burden of proof.16
On appeal, counsel contends that Dr. Dunne’s opinion was “not etched in stone” and that
he was at liberty to change it. The issue, however, is not that Dr. Dunne changed his opinion, but
that he failed to provide medical reasoning as to why he did so. As noted above, Dr. Dunne
provided insufficient medical reasoning explaining why he changed his opinion from attributing
appellant’s bilateral carpal tunnel syndrome solely to the January 27, 2014 employment injury, to
attributing it solely to repetitive upper extremity movements at work.
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 bilateral carpal
tunnel syndrome causally related to the accepted factors of her federal employment.

12

Supra note 6.

13

P.D., Docket No. 17-1885 (issued September 17, 2018); S.W., Docket No. 08-2538 (issued May 21, 2009).

14

P.D., id.

15

See J.W., Docket No. 17-0870 (issued July 12, 2017).

16

P.D., supra note 13.

6

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redwood City, CA, Employer
__________________________________________

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

Docket No. 12-757
Issued: September 12, 2012

Case Submitted on the Record

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

JURISDICTION
On February 21, 2012 appellant, through her attorney, filed a timely appeal of a
January 3, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for recurrence of disability on September 4, 2009. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a
recurrence of disability on September 4, 2009; and (2) whether appellant is entitled to wage-loss
compensation benefits beginning September 11, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. On May 5, 2011 the Board
remanded the case for OWCP to double appellant’s case files in order to determine whether she
had a back injury prior to January 28, 2006 such that the withdrawal of light duty on
September 4, 2009 would result in a recurrence of disability under FECA.2 The facts and
circumstances of the case as set forth in the Board’s prior decision are adopted herein by
reference. The relevant facts are set forth below.
On November 7, 2001 appellant, then a 57-year-old distribution clerk, filed a claim for
back injury on November 2, 2001.3 Dr. Kenneth L. Lum, a physician Board-certified in
emergency medicine, diagnosed low back strain, chronic and recurrent. Dr. Rose Melger, a
Board-certified occupational medicine physician, stated that appellant had a back injury in 1997
with “permanent restrictions” causing occasional back pain. She diagnosed back strain. In a
report of a telephone call dated March 26, 2002, OWCP noted that appellant had a “chronic
condition apparently due to previous work injury” in claim number xxxxxx124. It stated that this
claim number was closed with appellant receiving medication for pain. OWCP accepted her
November 2, 2001 claim for sprain/strain of the sacroiliac region on January 7, 2002.
On March 15, 2002 Dr. Melger found that appellant could return to her permanent
restrictions of September 25, 2000. She stated that appellant had chronic back pain, for which
she received a permanent rating and restrictions on September 25, 2000.
Appellant filed a notice of recurrence of disability regarding the November 2, 2001 injury
on June 30, 2004. The employing establishment indicated that the date of injury was
May 25, 2004. OWCP treated this claim as a new traumatic injury. Appellant’s work
restrictions were lifting five pounds, standing one half-hour, walking and climbing one half-hour
and no kneeling, bending, stooping, twisting, pushing or pulling. She underwent a magnetic
resonance imaging (MRI) scan on July 16, 2004, which demonstrated diffuse degenerative disc
disease throughout the lumbar spine most severe at the L4-5 level. OWCP accepted the May 25,
2004 injury for sprain/strain of the lumbosacral joint or ligament on March 24, 2005. Appellant
returned to work on October 6, 2004. She filed recurrence claim injury on March 7, 2006. On
May 31, 2006 OWCP instructed appellant to file a traumatic injury claim for the March 7, 2006
injury. The Board has no record of this claim.
On June 8, 2006 appellant, then a 63-year-old distribution clerk, filed a traumatic injury
claim on January 28, 2006 alleging that she injured her lower back in the performance of duty.
In a report dated May 1, 2006, Dr. Melgar, a physician specializing in occupational medicine,
diagnosed acute exacerbation of chronic back pain. She found that appellant could return to
modified work on May 1, 2006 and that she was permanently precluded from engaging in her
usual and customary occupation. Dr. Melgar completed a form report on May 1, 2006 and
2

Docket No. 10-2021 (issued May 5, 2011).

3

There is information in this file that this was not appellant’s first back injury, but that OWCP accepted appellant
sustained a back strain in claim number xxxxxx124 prior to 1997. Appellant stated on November 14, 2001 that she
had been on limited duty for some years.

2

diagnosed acute exacerbation of chronic back pain. She stated that appellant’s permanent
restrictions were effective September 25, 2000 and included no lifting of more than 10 pounds,
standing and walking for one half-hour per hour, no twisting and no bending. Dr. Melgar
discharged appellant from her care. OWCP accepted her claim for sprain and strain of the
lumbar spine on July 27, 2006. In the acceptance decision, it stated, “This claim has now been
closed for the above accepted injury because your attending physician, Dr. Melgar, indicated in
her May 1, 2005 medical report that you returned to baseline for this injury, you were discharged
from care and returned to your regular duty.”
Appellant filed a notice of recurrence of disability on September 3, 2009 alleging a
change in her light-duty assignment. On the reverse of the form, her supervisor stated that there
were no necessary tasks meeting her medical restrictions after September 4, 2009. On May 8,
2009 an internist, whose signature is illegible, provided appellant’s restrictions due to back strain
including lifting and carrying up to five pounds, sitting, standing and walking for one half-hour
per hour, reaching above the shoulder for four hours, driving for two hours, operating machinery
for four hours and temperature extremes for five hours. In a letter dated September 4, 2009, the
employing establishment requested additional medical documentation supporting appellant’s
work restrictions.
Appellant filed a claim for compensation requesting wage loss from September 11
through 25, 2009. In a letter dated October 7, 2009, OWCP informed her that she was not
entitled to compensation as she no longer suffered residuals due to the January 28, 2006 injury.
It stated that while appellant’s claim was accepted on July 27, 2006 for lumbar sprain, the claim
was closed on the same day because the medical evidence established that appellant had a
preexisting back condition and had returned to baseline. OWCP stated that appellant had no
residuals of the January 28, 2006 injury and that her light-duty position was based on restrictions
due to other medical conditions which were not necessarily work related. It stated that her claim
for compensation was not payable.
On January 27, 2010 OWCP denied appellant’s claim for recurrence. Appellant
requested an oral hearing before an OWCP hearing representative. Her attorney appeared and
requested 30 days to submit additional information on May 4, 2010. By decision dated July 6,
2010, the hearing representative affirmed OWCP’s January 27, 2010 decision finding that
appellant had not submitted the necessary medical evidence. As stated above, the Board issued a
decision remanding the case for combination of the claims and determination of the accepted
conditions on May 5, 2011.
Appellant filed a claim for a new occupational disease on September 18, 2010 which she
alleged resulted in a lumbosacral sprain, sprain of the sacroiliac joint and lumbosacral radiculitis.
She stated that she first became aware of her condition on July 26, 2010. Appellant noted her
first back claim number xxxxxx124 and that this claim had been closed.
Dr. Michael Hebrard, a Board-certified physician specializing in physical medicine and
rehabilitation, examined appellant on July 26, 2010 and listed her dates of injury including
August 5, 1997. He stated that her first injury was the result of lifting and resulted in sprain of
the sacroiliac joint. On physical examination Dr. Hebrard found no deep tendon reflexes in the
right ankle and sensory examination decreased to light touch along the lateral aspect of the right

3

leg and dorsal aspect of the right foot. He also found positive straight leg raising on the right as
well as palpable spasm along the lumbar musculature. Dr. Hebrard diagnosed lumbosacral
sprain, sprain of the sacroiliac joint and lumbosacral radiculitis of the right L5-S1 nerve
distribution. He reviewed appellant’s accepted employment injuries beginning in 1997 and
stated, “With these multiple traumas and injuries to the low back it is apparent that [appellant]
has had this chronic recurrent aggravation of her preexisting condition. It is the opinion of the
undersigned that she continues to suffer from residuals from her lumbosacral spine which cause
sciatic neuropathy right greater than left….”
Dr. Hebrard further stated, “Given the
documentation and the fact that [appellant] has had accepted claims to her lumbar spine and
multiple injuries of trauma due to repetitive pushing, pulling and doing her job as a distribution
clerk, it is the opinion of the undersigned that, if not for the job injuries, her back pain would not
be as severe at this particular time, therefore, with a reasonable degree of medical certainty her
ongoing complaints of pain are still industrially related and are a result of dysfunction to her low
back.”
OWCP referred appellant for a second opinion evaluation on October 27, 2010. The
statement of accepted facts described her series of accepted back injuries beginning on
November 2, 2001 and stated, “A history of preexisting, nonindustrial chronic back pain is also
noted.”
On September 13, 2010 Dr. Hebrard diagnosed sprain of the lumbar regions, sprain of the
sacroiliac region, sciatic neuropathy on the right and lumbosacral radiculitis. He opined that
appellant had reached maximal medical improvement. Dr. Hebrard provided work restrictions of
lifting up to 10 pounds, no repetitive twisting, turning and bending at the waist and no repetitive
stair-climbing.
In a report dated November 10, 2010, Dr. J. Hearst Welborn, Jr., a Board-certified
orthopedic surgeon, described appellant’s symptoms of low back pain, bilateral leg numbness
and pain into her feet as well as her statement that she did not have low back pain until she began
working at the employing establishment. He noted that she began performing light-duty work in
2011 lifting up to five pounds and that the employing establishment withdrew her light-duty
position in 2009. Dr. Welborn performed a physical examination finding limited range of
motion of the lumbosacral spine, abnormal squatting and positive straight leg raising on the right
and left. He diagnosed degenerative disc disease of the lumbar spine and lumbar strain.
Dr. Welborn opined that appellant’s lumbar strain had resolved. He stated:
“[Appellant’s] diagnoses of degenerative disc disease of the lumbar spine and
lumbar strain (resolved) are related to her repetitive motions of lifting and
bending and working as a postal clerk. The diagnosis of disc disease is related by
aggravation as she has a diagnosis of preexisting, nonindustrial chronic back pain
in the [statement of accepted facts]. [Appellant’s] aggravation would have been
temporary while she was working. Since she has not worked since 2009 this
temporary aggravation has stopped and she has returned to her baseline of
preexisting low back pain and there is no basis for a repetitive injury claim.”
Dr. Welborn found that appellant had no work-related restrictions, but could not perform
her position of distribution clerk due to her preexisting condition of lumbar disc disease.

4

OWCP denied the September 18, 2010 occupational disease claim on November 24, 2010
finding that the weight of the medical evidence established that appellant’s lumbar spine
degenerative disc disease was a preexisting condition only temporarily aggravated by her
employment. It noted that she had not worked since September 24, 2009.
Dr. Joel Weddington, a Board-certified orthopedic surgeon, examined appellant on
November 29, 2010 on referral from Dr. Hebrard. He stated that she provided medical evidence
that her back problems back to 1994 were industrial related. Dr. Weddington stated that the
medical evidence supported that appellant’s back condition was not preexisting her initial work
injury. He opined that her conditions were industrial related.
In a report dated January 10, 2011, Dr. Hebrard stated that preinjury appellant was not
treated for low back pain. He disagreed with Dr. Welborn’s conclusions noting that, prior to her
accepted employment injuries, she had no pain. Dr. Hebrard opined that appellant’s current back
condition arose out of performance of her work duties and was causally related to her
employment. On May 9, 2011 he diagnosed lumbar strain and lumbar radiculopathy.
Dr. Hebrard found that appellant had reached maximum medical improvement.
On July 29, 1994 appellant had filed a notice of traumatic injury alleging on that date she
developed a low back ache. She submitted medical evidence dated August 15, 1995 supporting
an industrial injury in 1992 due to lifting resulting in limited duty as well as a motor vehicle
accident in 1995.
In a decision dated June 28, 2011, OWCP denied appellant’s claim for compensation
from September 11 to 25, 2009 finding that Dr. Welborn’s report was entitled to the weight of
the medical evidence and that her statements that she did not have back pain prior to her
employment injuries could not overcome the weight of this report.
Appellant requested an oral hearing of the November 24, 2010 decision and by decision
dated June 28, 2011, the hearing representative found that the weight of the medical evidence
rested with the second opinion physician and established that any aggravation of her preexisting
degenerative disc disease had resolved.4
Counsel requested an oral hearing regarding the June 28, 2011 decision, denying
appellant’s claimed recurrence on July 7, 2011. Appellant testified that the employing
establishment withdrew her light-duty position. The employing establishment responded on
November 14, 2011 and stated that under the National Reassessment Process (NRP) there were
no available necessary tasks within her medical restrictions on September 3, 2009.
By decision dated January 3, 2012, the hearing representative found that OWCP properly
determined that appellant had not established a recurrence of disability on September 3, 2009 or
entitlement to compensation beginning September 11, 2009.

4

As appellant did not file an appeal with the Board within 180 days of this decision, the Board does not have
jurisdiction to consider this issue on appeal. 20 C.F.R. § 501.3(e).

5

LEGAL PRECEDENT -- ISSUES 1 & 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.5 When an
employee, who is disabled from the job she held when injured on account of employment-related
residuals, returns to a light-duty position or the medical evidence of record establish that she can
perform the light-duty position, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability and show that she
cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty requirements.6 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.7
FECA Bulletin No. 09-05 outlines procedures when light-duty positions are withdrawn
under NRP. If the claimant has been on light duty due to an injury-related condition without an
LWEC rating, or OWCP has set aside the LWEC rating, payment for total wage loss should be
made based on the Form CA-7 as long as the following criteria are met: (1) the current medical
evidence in the file (within the last 6 months) establishes that the injury-related residuals
continue; (2) the evidence of file supports that light duty is no longer available; and (3) there is
no indication that a retroactive LWEC determination should be made. Retroactive LWEC
determinations should not be made in NRP cases without approval from the District Director.
FECA Bulletin No. 09-05 states that, if the medical evidence is not sufficient, OWCP should
request current medical evidence from the employing establishment and the claimant.8
ANALYSIS -- ISSUES 1 & 2
The record supports that the employing establishment withdrew appellant’s limited duty
under NRP effective September 4, 2009. Appellant filed a claim for wage loss beginning that
September 11, 2009. OWCP denied this claim but did not discuss FECA Bulletin No. 09-05 or
properly consider the evidence in light of the guidelines provided.
Generally, a withdrawal of limited duty constitutes a recurrence of disability under
OWCP regulations. As there is no LWEC in place, OWCP should consider whether the medical
5

20 C.F.R. § 10.5(x).

6

Terry R. Hedman, 38 ECAB 222 (1986).

7

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

8

M.B., Docket No. 12-435 (issued July 3, 2012); FECA Bulletin No. 09-05 (issued August 18, 2009).

6

evidence established that appellant had continuing injury-related residuals at the time of the
withdrawal. If it finds the medical evidence insufficient, OWCP should request additional
evidence or refer appellant to an appropriate specialist to address residuals due to the accepted
condition.
The medical evidence in the record supported appellant’s continued work restrictions due
to the accepted condition of back strain on May 8, 2009, within six months of the September 4,
2009 withdrawal of light duty. However, in the decisions previously before the Board, OWCP
found that as Dr. Melgar opined that appellant had returned to “baseline” her ongoing back
condition and restrictions were not work related. The Board disagreed with these decisions
noting that the factual record was not complete and that there was evidence that appellant’s
“baseline” was due to a previous employment-related injury, which was not contained in the
record on appeal. On remand, OWCP combined several of appellant’s back claims including the
November 2, 2001 injury previously alluded to in the record. The Board notes that a review of
the record associated with the November 2, 2001 injury supports that this was not her first
accepted back injury and that her work restrictions dated from a 1997 injury which has not yet
been combined with her current claims. Appellant submitted reports from Dr. Hebrard
referencing her August 5, 1997 employment injury. Dr. Hebrard opined that her multiple
traumas and injuries to the low back resulted in chronic recurrent aggravation of her preexisting
condition and residuals from her lumbosacral spine, which cause sciatic neuropathy. He further
opined that, due to appellant’s multiple accepted back injuries as a result of pushing, pulling and
doing her job as a distribution clerk, her back pain was more severe and her ongoing complaints
of pain work related.
OWCP undertook further development of appellant’s claim by referring her for a second
opinion with Dr. Welborn. It presented him with a statement of accepted facts which described
her series of accepted back injuries beginning on November 2, 2001 and stated, “A history of
preexisting, nonindustrial chronic back pain is also noted.” The Board finds this statement is not
supported by the record currently on appeal. The record does not contain medical evidence
predating appellant’s 2001 injury which supports a nonemployment-related back injury. Instead,
the record suggests that appellant sustained an employment-related back injury in 1997, which
has not yet been combined with her current files. Appellant has also submitted several
statements denying any back pain prior to her first accepted employment injury.
In his November 10, 2010 report, Dr. Welborn mentioned appellant’s statement that she
did not have low back pain until she began working at the employing establishment. He
diagnosed degenerative disc disease of the lumbar spine and lumbar strain. Dr. Welborn offered
an opinion that appellant’s current condition was not work related relying on the statement of
accepted facts to conclude that since she had not worked since 2009 her temporary aggravation
had stopped and she returned to her baseline of preexisting nonemployment-related low back
pain. Dr. Welborn’s opinion is entitled to weight only if the factual record establishes that she
had a preexisting back condition, which was not related to her employment. The record
currently does not support this interpretation of the facts. In order to determine whether
appellant had disability or residuals as a result of her accepted employment injuries at the time of
the removal of light duty in 2009, OWCP must base its statement of accepted fact on a review of
all of appellant’s back claims including the 1997 claim which is not currently before the Board.

7

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.9 On remand,
OWCP should double this case file assigned claim number xxxxxx187 with the 1997 and any
other injury claim appellant has filed for her back, in accordance with its procedures.10 Its
procedure manual provides that cases must be doubled when a new injury is reported for an
employee who previously filed an injury claim for a similar condition or to the same part of the
body.11 OWCP should develop the factual evidence, prepare an accurate statement of accepted
facts and refer appellant to a second opinion physician to determine whether the employing
establishment withdrawal of her light-duty work assignment on September 4, 2009 constituted a
recurrence of disability under any of her accepted claims. Following this and any other further
development as OWCP deems necessary, an appropriate final decision in light of FECA Bulletin
No. 09-0512 should be issued on appellant’s claim for compensation.13
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant
sustained a recurrence of disability on September 4, 2009 or lost wages on or after September 11,
2009 due to the withdrawal of her light-duty assignment. On remand, OWCP should combine
the appropriate claim files, undertake additional development of the medical evidence and issue a
de novo decision.

9

Claudio Vazquez, 52 ECAB 496 (2001).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c)(1) (February 2000).
11

Id.

12

Supra note 9.

13

T.M., Docket No. 09-1090, 09-2226 (issued March 8, 2010); T.D., Docket No. 07-2331 (issued June 19, 2008).

8

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this opinion of the Board.
Issued: September 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9