United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
DEPARTMENT OF AGRICULTURE,
SEQUOIA NATIONAL FOREST,
Porterville, CA, Employer
__________________________________________

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

Docket No. 20-1013
Issued: August 3, 2021

Case Submitted on the Record

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

JURISDICTION
On April 10, 2020 appellant filed a timely appeal from an October 30, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation and
medical benefits pursuant to 5 U.S.C. § 8123(d), effective July 19, 2016, due to her failure to attend
a scheduled medical examination.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision and order are incorporated herein by reference. The relevant facts
are as follows.
On September 18, 1990 appellant, then a 34-year-old forestry technician, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a back injury on April 17, 1990 when
changing a vehicle tire while in the performance of duty. OWCP accepted her claim for
lumbosacral strain, herniated disc L4-5, and subsequent microsurgical discectomy. Appellant
made several attempts to return to work, but has not worked for the employing establishment since
May 27, 1992.
On March 23, 2015 OWCP informed appellant that she would be referred for a second
opinion examination, to assess her accepted work-related conditions. It noted that the time, date,
and location of the appointment would be detailed in a separate letter. OWCP indicated that
rescheduling the appointment date and time was strongly discouraged and should only be done in
emergency situations. It instructed appellant, that if she failed to keep the scheduled appointment,
she must advise it as to the reason within seven days in writing. OWCP noted that only a
legitimate, documented emergency would be deemed as an adequate reason for not keeping the
appointment. It informed appellant that, if she failed to provide an acceptable reason for not
appearing for the examination, or if she obstructed the examination, her benefits would be
suspended in accordance with section 8123(d) of FECA (5 U.S.C. § 8123(d)). OWCP noted that
this provision delineated that, if an employee refused to submit to or obstructed an examination,
his or her right to compensation was suspended until the refusal or obstruction stopped.
In a March 25, 2015 letter, OWCP advised appellant of an appointment scheduled for
April 9, 2015 at 10:00 a.m. with Dr. Michael S. Clarke, a Board-certified orthopedic surgeon, for
a second opinion evaluation of her work-related condition and provided his office address. It

3
Order Remanding Case, Docket No. 13-0649 (issued October 21, 2013); Docket No. 14-1588 (issued
May 12, 2015).

2

requested that she call and provided a telephone number to confirm the appointment. Appellant
did not attend the scheduled examination.
In an April 8, 2015 letter, OWCP advised appellant that her appointment with Dr. Clarke
was rescheduled for April 23, 2015 at 9:30 a.m. It again provided his office address and requested
that she call and provide a telephone number to confirm the appointment.
In an April 15, 2015 letter, appellant explained that she did not attend the April 9, 2015
appointment as she had another doctor’s appointment scheduled for that day. In a second letter of
even date, she explained that she had elected to receive Office of Personnel Management (OPM)
retirement benefits as of April 6, 2015.
In an April 20, 2015 letter, OWCP noted receipt of appellant’s election to receive “Civil
Service Retirement System [Federal Employees Retirement System] (FERS) benefits as of
April 6, 2015.” It also noted that it had scheduled her for a second opinion medical examination
with Dr. Clarke and that she failed to keep her initial appointment scheduled for April 9, 2015.
OWCP advised appellant that it had rescheduled the appointment to April 23, 2015 and reminded
her that failure to keep her scheduled doctor’s appointment could result in suspension of her
medical and compensation benefits. Appellant did not attend the scheduled April 23, 2015
examination with Dr. Clarke.
On April 28, 2015 OWCP issued a notice of proposed suspension of compensation and
medical benefits for failure to attend the second opinion medical examination appointments on
April 9 and 23, 2015 as directed. It afforded appellant 14 days to submit new and pertinent
explanation in writing for not attending the examination with Dr. Clarke. OWCP advised her that,
if good cause was not established, her entitlement to wage-loss compensation and medical benefits
would be suspended in accordance with 5 U.S.C. § 8123(d). No additional evidence was received
from appellant justifying her failure to attend either of Dr. Clarke’s scheduled examinations.
By decision dated July 19, 2016, OWCP suspended appellant’s wage-loss compensation
and medical benefits pursuant to 5 U.S.C. § 8123(d), effective July 19, 2016, due to her failure to
attend the second opinion examinations with Dr. Clarke which had been scheduled for April 9
and 23, 2015. It found that she did not provide good cause for her failure to appear for either
examination within 14 days of OWCP’s April 28, 2015 notice of proposed suspension. OWCP
advised appellant that her benefits would be reinstated only after it had been verified that she
attended and fully cooperated with an OWCP-directed second opinion examination and noted that
such reinstatement would be effective the date of her compliance.
On May 23 and June 9, 2017 appellant requested reconsideration. In her May 23 and
June 9, 2017 statements, she reiterated her reason why she did not attend the original appointment
with Dr. Clarke on April 9, 2015. She indicated that she had notified OWCP that she had a
previously scheduled appointment with her family physician, and that she had not thought to ask
her doctor to write a note as to why she was unable to attend the April 9, 2015 appointment with
Dr. Clarke. Appellant alleged that she could not attend the rescheduled April 23, 2015
appointment with Dr. Clarke as her vehicle broke down the evening of April 22, 2015 and it was
towed for repair. She indicated that the repair of her vehicle took time as special parts were ordered

3

and she had no one to take her to the scheduled appointment, which was a four-hour plus drive.
Appellant further noted that she had requested an election of OPM benefits.
By decision dated September 14, 2018, OWCP denied modification of the July 19, 2016
decision. It noted that appellant had contacted OWCP and provided a reason for not attending the
April 9, 2015 examination with Dr. Clarke. However, she did not attend the rescheduled April 23,
2015 appointment with Dr. Clarke and did not contact OWCP to provide her reasons or request
rescheduling of the appointment. OWCP also found that her explanation for not attending the
rescheduled April 23, 2015 appointment, which was provided almost a year later, insufficient to
overturn the suspension of her compensation.
In a May 28, 2019 statement, appellant indicated that she objected to the suspension of her
compensation benefits because she might require further medical care. She noted that she was
considering seeing a physician for her lumbar condition as her legs sometimes became numb.
Appellant inquired whether she could elect OWCP benefits for one day to see a second opinion
physician and then reelect OPM benefits the next day. She also inquired whether OWCP would
provide transportation to a second opinion appointment. Appellant noted that she did not
understand why she needed to see Dr. Clarke, as he was not a back doctor, and why OWCP would
want her to see a second opinion physician as it knew she had elected OPM benefits.
In a July 17, 2019 memorandum of telephone call (Form CA-110), an OWCP claims
examiner informed appellant that she did not have to elect FECA benefits to attend a second
opinion examination. The claims examiner advised appellant that OWCP would refer her to a
second opinion examiner and that she should receive an appointment within 30 to 45 days. She
was also advised that OWCP could arrange transportation service from one of its vendors or she
could try and obtain transportation and reimbursement from OWCP once she received the
appointment letter.
In July 24 and 25, 2019 CA-110 forms, appellant indicated that she wanted to file a
reconsideration request prior to rescheduling a second opinion examination. On July 25, 2019 she
also stated that she may never attend a second opinion examination as she did not trust OWCP and
their physicians.
On August 21, 2019 appellant requested reconsideration. In a narrative statement, she
indicated that she was submitting evidence to verify why she did not attend Dr. Clarke’s second
opinion appointments. Appellant expressed frustration with OWCP’s handling of her election
OPM benefits and her belief that it caused the suspension of her OWCP benefits. She also advised
that the reason she elected OPM benefits was so she no longer had to deal with OWCP.
A May 4, 2015 patient message to Dr. Edward R. Henegar, a family medical specialist,
noted appellant’s report of side effects with the use of medication. It also noted that appellant had
no transportation available. An unsigned handwritten note indicated “my vehicle was still at
Greg’s Auto -- that’s why I had no transportation.” An April 22, 2015 receipt from Ed’s Towing

4

& Garage indicated that appellant’s vehicle was towed to Greg’s Auto garage at 8:29 p.m. that
day.
In an explanation of benefits statement, Mail Handler’s Benefit Plan (MHBP) indicated a
bill for an office visit on April 9, 2015 at the Ozarks Medical Center.
By decision dated October 30, 2019, OWCP denied modification of its September 14, 2019
decision.
LEGAL PRECEDENT
Section 8123(a) of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.4 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.5
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary. 6 Section
8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction stops.7 OWCP’s procedures provide that, before OWCP may invoke these
provisions, the employee is to be provided a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.8 If good cause for the refusal or obstruction is not
established, entitlement to compensation is suspended in accordance with section 8123(d) of
FECA.9
ANALYSIS
The Boards finds that OWCP properly suspended appellant’s wage-loss compensation and
medical benefits pursuant to 5 U.S.C. § 8123(d), effective July 19, 2016, due to her failure to attend
a scheduled medical examination.
In letters dated March 23 and 25, 2015, OWCP notified appellant that she was being
referred for a second opinion examination to assess her accepted work-related condition. The
March 25, 2015 letter specifically advised her that the examination was scheduled with Dr. Clarke
for April 9, 2015 at 10:00 a.m. and provided the office address for Dr. Clarke’s office. In the
4

5 U.S.C. § 8123(a).

5

C.R., Docket No. 20-1089 (issued January 26, 2021); L.B., Docket No. 17-1891 (issued December 11, 2018); J.T.,
59 ECAB 293 (2008).
6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123(d); id. § 10.323; C.R., supra note 5; D.K., Docket No. 18-0217 (issued June 27, 2018).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13d (September 2010).
9

Id. at Chapter 2.810.13e.

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March 23, 2015 letter, OWCP informed appellant of her obligation to attend and cooperate with
the examination. It clearly explained that her compensation benefits would be suspended for
failure to report to or for obstruction of the examination. While appellant did not appear for the
April 9, 2015 appointment, she provided an explanation as to why she was unable to attend the
appointment. OWCP rescheduled the examination with Dr. Clarke for April 23, 2015 at 9:30 a.m.
and again provided his address. In an April 20, 2015 letter, it acknowledged receipt of appellant’s
election to receive FERS benefits. OWCP also indicated that it had rescheduled appellant’s second
opinion medical examination appointment with Dr. Clarke to April 23, 2015 and reminded her that
failure to keep her scheduled doctor’s appointment could result in suspension of her medical and
compensation benefits. Appellant did not appear for the April 23, 2015 appointment, nor did she
provide evidence within 14 days of OWCP’s April 28, 2015 notice of proposed suspension that
she attempted to reschedule the appointment prior to the designated time.
In its April 28, 2015 notice, OWCP provided appellant 14 days to submit a valid reason for
her failure to attend the scheduled medical appointment. As appellant did not respond to OWCP’s
April 28, 2015 notice, by decision dated July 19, 2016, OWCP suspended appellant’s wage-loss
compensation and medical benefits pursuant to 5 U.S.C. § 8123(d), effective that day, due to her
failure to attend the second opinion examinations with Dr. Clarke scheduled for April 9
and 23, 2015.
Almost a year after OWCP’s July 19, 2016 suspension of wage-loss compensation and
medical benefits, on May 23 and June 9, 2017, appellant indicated that she had notified OWCP
why she could not attend the April 9, 2015 appointment and that she did not think to get her doctor,
whom she saw that day, to write a note. The Board notes that appellant had informed OWCP in
an April 15, 2015 letter that she had another doctor’s appointment scheduled for that day and that
OWCP rescheduled the appointment with Dr. Clark for April 23, 2015. OWCP also subsequently
received, on August 27, 2019, documentation from appellant’s insurance company that she was
seen at a medical provider’s office on April 9, 2015. As it rescheduled appellant’s appointment
with Dr. Clarke for April 23, 2015, the issue at hand is whether appellant obstructed the April 23,
2015 appointment.
Appellant alleged in her May 23 and June 9, 2017 letters that she could not attend the
rescheduled April 23, 2015 appointment with Dr. Clarke as her car broke down the night before,
it was being repaired, and she had no transportation to get to the appointment. On August 27, 2019
OWCP received a tow receipt for April 22, 2015 from Ed’s Towing and Garage. This document
indicates that appellant had a vehicle towed the night before her April 23, 2015 scheduled
appointment with Dr. Clarke. The Board notes, however, that this document was not received
within 14 days of OWCP’s proposed notification of suspension and the document itself does not
present a clear basis to find that appellant had good cause for failing to appear for the scheduled
examination on April 23, 2015.10 There is also no evidence that appellant had no other
transportation to attend the scheduled examination on April 23, 2015.

10

See R.L., Docket No. 20-0160 (issued October 30, 2020); see generally D.K., Docket No. 14-0933 (issued
April 15, 2015) (the Board found that OWCP properly suspended compensation where appellant did not submit any
medical or factual evidence showing her inability to travel to the second opinion appointment by any mode of
transportation other than driving or that she could not take breaks in her driving to the scheduled appointment).

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Additional statements from appellant do not provide an explanation as to why she did not
attend the April 23, 2015 appointment, why she did not attempt to contact OWCP after failing to
attend the April 23, 2015 appointment, and whether she intended to cooperate with an OWCP
second opinion examination. In July 24 and 25, 2019 CA-110 forms, appellant indicated that she
wanted to file a reconsideration request prior to rescheduling a second opinion examination. In
the July 25, 2019 Form CA-110, she indicated that she may never attend a second opinion
examination as she did not trust OWCP and their physicians. This evidence does not indicate that
appellant intends to cooperate with an OWCP second opinion examination.
The Board, therefore, finds that while appellant’s August 21, 2019 statement provided
some explanation as to why she did not attend the April 23, 2015 scheduled examination, there is
no explanation as to why she did not attempt to contact OWCP after failing to attend the
appointment. Section 8123(d) of FECA provides that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction stops.
As appellant did not attend the April 23, 2015 examination as scheduled and failed to
provide good cause for failing to appear within 14 days of OWCP’s April 28, 2015 notice of
proposed suspension, the Board finds that OWCP properly suspended her entitlement to wage-loss
compensation and medical benefits in accordance with 5 U.S.C. § 8123(d), effective
July 19, 2016.11
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.

11

See R.L., id.

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CONCLUSION
The Boards finds that OWCP properly suspended appellant’s wage-loss compensation and
medical benefits pursuant to 5 U.S.C. § 8123(d), effective July 19, 2016, due to her failure to attend
a scheduled medical examination.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 09-1835
Issued: June 21, 2010

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 July 13, 2009 appellant filed a timely appeal from the May 4, 2009 merit decision of
the Office of Workers’ Compensation Programs suspending appellant’s compensation. 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 the Office properly suspended appellant’s compensation under
5 U.S.C. § 8123(d) for failing to attend a scheduled medical examination.
On appeal, appellant contends, inter alia, that the May 4, 2009 decision was untimely.
She argued that the Office did not properly address the medical evidence, ignored other evidence
and that the Office did not conduct the evaluation of her claim in a nonadversarial manner.
Appellant also contends that the opinion of her physician should be entitled to decisive weight.
FACTUAL HISTORY
On August 5, 2008 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim alleging that, as a result of her federal duties in casing and pulling mail, she

suffered from lumbar radiculopathy, pain in her right leg and right foot possibly secondary to
sympathetic hyperactivity; and facet joint arthropathy on the right side at level L4 and L5. The
Office accepted appellant’s claim for lumbar radiculopathy and L5-S1 herniated disc and paid
compensation and medical benefits.1
By letter dated June 4, 2002, the Office referred appellant to Dr. John Dwyer, a Boardcertified orthopedic surgeon, to resolve a conflict between appellant’s treating physician,
Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon and the second opinion physician,
Dr. Richard Sidell, a Board-certified orthopedic surgeon, with regard to appellant’s “current
medical status.” In an opinion dated August 15, 2002, Dr. Dwyer noted that appellant had
evidence of chronic low back pain syndrome without any evidence of neurologic deficit, and
recommended that appellant be evaluated for return to her occupational duties as a postal worker.
Appellant underwent additional impartial medical examinations to determine her ability to work
and her ongoing restrictions with Dr. Spiros Stamelos, a Board-certified orthopedic surgeon, on
January 29, 2004; Richard Lim, a Board-certified orthopedic surgeon, on October 2, 2004 and
Dr. Curtis Whisler, a Board-certified orthopedic surgeon, on December 8, 2005.
By letter dated February 21, 2007, the Office informed appellant that a second opinion
examination was necessary and would be scheduled. It informed appellant that her full
cooperation with the examination was required or her right to compensation would be suspended
until the refusal stopped. By letter dated March 1, 2007, the scheduling agency informed
appellant that she had an appointment for a second opinion with Dr. S. Forman, an osteopath, on
March 13, 2007 and informed appellant that she had the right to have a physician of her choice
attend the examination. By letter dated March 6, 2007, appellant noted that she had a conflict
and would be unable to attend this appointment. By letter to the Office dated March 7, 2007, she
objected to the second opinion examination. Appellant alleged that she had examinations by
multiple physicians and that she was being harassed by the Office. By letter dated March 14,
2007, the scheduling agency informed appellant that, due to her missed appointment, her
appointment was now scheduled for April 10, 2007 with Dr. Forman. By letter dated March 15,
2007, the Office informed appellant that the appointment would be rescheduled and again
advised her that, if she refused to submit to or obstructed the examination, her right to
compensation would be suspended. By letter to the Office dated April 9, 2007, appellant stated
that she would not attend the second opinion examination, as she concluded there was no
legitimate reason for a “sixth second opinion.” She stated that she was “through trying to reason
with you” and “not going to jump through any more hoops.” Appellant alleged that the Office
was harassing her and that she had been denied the right to participate in the selection of the

1

This case has been before the Board previously. On August 30, 2006 the Office issued a schedule award for
eight percent impairment of appellant’s right lower extremity. An Office hearing representative affirmed the
decision on April 30, 2007. Appellant appealed this decision to the Board, to which the Board assigned Docket No.
07-1778. At appellant’s request, the Board dismissed the appeal by order dated August 16, 2007. See Docket No.
07-1778 (issued August 16, 2007). Ultimately, on May 30, 2008, the Office denied appellant’s request for
reconsideration of the merits and on September 15, 2008 denied appellant’s request for review of the written record.
Appellant again appealed to the Board. The Board assigned Docket No. 09-278. By decision dated September 22,
2009, the Board affirmed the Office’s May 30 and September 15, 2008 decisions. G.M., Docket No. 09-278 (issued
September 22, 2009).

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doctor. By letter dated April 10, 2007, the scheduling agency informed the Office that appellant
did not show for the second appointment.
By decision dated April 10, 2007, the Office stated the proposed suspension of
appellant’s compensation was effective that date for failure to attend or obstruction of a medical
examination required by the Office.2
On November 16, 2007 appellant requested reconsideration. She contended, inter alia,
that the Office engaged in “doctor shopping” and that the Office should have given weight to the
opinion of Dr. Chmell, her treating physician. Appellant also discussed the prior medical
evidence of record, made numerous arguments considering the validity of each physician’s
opinion and challenged conclusions reached by the Office.
By decision dated May 4, 2009, the Office denied modification of the April 10, 2007
decision.
LEGAL PRECEDENT
Section 8123 of the Federal Employees’ Compensation Act authorizes the Office to
require an employee to undergo a physical examination as it deems necessary.3 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the discretion of the Office.4 The Office’s
federal regulations at section 10.320 provide that a claimant must submit to examination by a
physician as often and at such times and places as the Office considers reasonably necessary.5
Section 8123(d) of the Act and section 10.323 of the Office’s regulations provide that, if an
employee refuses to submit to or obstructs a directed medical examination, his or her
compensation is suspended until the refusal or obstruction ceases.6 However, before the Office
may invoke these provisions, the employee is provided a period of 14 days within which to
present in writing his or her reasons for the refusal or obstruction.7
ANALYSIS
The Office scheduled appellant for an appointment for a second opinion examination on
March 13, 2007 with Dr. Forman, and when appellant noted a conflict with this date, the Office
2

Appellant appealed this decision to the Board, to which it assigned Docket No. 09-1777. By an order dated
August 16, 2007, the Board dismissed the appeal at appellant’s request. Docket No. 07-1777 (issued
August 16, 2007).
3

5 U.S.C. §§ 8101-8193, 8123(a).

4

James C. Talbert, 42 ECAB 974, 976 (1991).

5

20 C.F.R. § 10.323.

6

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).

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rescheduled the appointment for April 10, 2007. Appellant refused to submit to the examination.
Her assertions that she was not required to attend the scheduled examination are incorrect. As
noted, 5 U.S.C. § 8123(d) provides that an employee shall submit to an examination as
frequently and at such times and places as may be reasonably required. The Office sought a
second opinion to determine appellant’s current medical status. It made a reasonable
determination that a second opinion examination was necessary and advised appellant that she
was required to attend. Contrary to appellant’s allegation, requiring her to submit to reasonable
medical evaluations does not indicate that the Office is breaching its duties to act in a
nonadversarial fashion. Appellant did not provide a valid reason for not attending the
examination. She may not decide whether the circumstances warrant a second opinion
examination. There is no discretion for her to exercise in this matter.8 Furthermore, as the issue
is whether appellant’s compensation was properly suspended for her failure to attend the second
opinion examination, appellant’s arguments with regard to the weighing of the medical evidence
are not relevant. The Board also rejects appellant’s argument that the May 4, 2009 decision was
not timely. Although the Office did delay its decision by more than 90 days, any error made
with regard to this delay was rendered moot by the fact that the Office did not deny appellant her
right to a merit review; the Office reviewed appellants’ case on the merits.
However, the Office did not provide appellant with the required 14-day opportunity to
explain why she did not report.9 Although appellant’s earlier reasons for failure to attend the
appointment may be without merit, this does not excuse the Office’s failure to follow the
requirement to provide appellant a proper notice of the proposed suspension of benefits. The
decision of the Office suspending appellant’s compensation must, therefore, be overturned and
her compensation reinstated retroactively.
CONCLUSION
The Board finds that the Office improperly suspended appellant’s compensation benefits
as it failed to give her proper notice.

8

See 5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; S.B., 58 ECAB 267 (2007).

9

Supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 4, 2009 is reversed.10
Issued: June 21, 2010
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

10

In light of the disposition of the case, it is not necessary to address appellant’s contentions raised on appeal.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.S., Appellant
and
U.S. POSTAL SERVICE, EMBARCADERO
POSTAL CENTER, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 10-2325
Issued: August 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 16, 2010 appellant, through her representative, filed a timely appeal from a
May 6, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding
that she had no further employment-related disability. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly issued a decision terminating appellant’s
compensation as she had no further employment-related disability; and (2) whether OWCP
properly terminated her authorization for medical benefits for her cervical spine condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 1, 1997 appellant, then a 52-year-old special delivery messenger, filed a claim
alleging that she sustained injuries on March 29, 1997 in the performance of duty when she was
in an elevator that fell half a floor. OWCP accepted her claim for neck sprain and post-traumatic
stress disorder. Appellant sustained intermittent periods of total disability from April 1 to
August 26, 1997.
In a report dated August 13, 1997, Dr. E. Trent Andrews, a Board-certified orthopedic
surgeon, related that appellant had reached her preinjury status. He noted that, prior to her
injury, she had worked in a limited-duty status with no heavy lifting or climbing. Dr. Andrews
found that she could return to “the position she was in prior to July 1997. At that time apparently
[appellant] was given a new position which exceeded the demands that she was working….”
In a duty status report dated August 18, 2008, Dr. Parvez Fatteh, a physiatrist, diagnosed
chronic neck pain and found that appellant was disabled from work through October 2008.
On September 3, 2008 appellant filed a notice of recurrence of disability on August 4,
2008 causally related to her March 29, 1997 employment injury. She attributed her recurrence of
disability to a reassignment to another facility in violation of her medical restrictions. The
employing establishment noted that she was reassigned to a position requiring lifting parcels
from 2 to 70 pounds. Appellant also filed a claim for compensation (Form CA-7) from August 4
to September 5, 2008.
By letter dated September 17, 2008, OWCP informed appellant that evidence from her
attending physician established that her cervical strain resolved by August 13, 1997. It advised
her of the evidence required to reopen her case for medical treatment.
On March 19, 2009 OWCP advised appellant that it had accepted that she sustained a
recurrence of disability beginning August 4, 2008 as she was transferred to another location
without an appropriate job offer or accommodation.2
By decision dated April 15, 2009, OWCP terminated appellant’s compensation for wage
loss and medical benefits for the accepted condition of cervical strain. It found that the
September 16, 1997 report from her attending physician, Dr. Andrews, established that she had
no disability or need for medical treatment for her cervical strain after August 13, 1997. OWCP
noted that medical evidence established that appellant experienced chronic neck pain due to
preexisting December 14, 1993 and February 1, 1994 motor vehicle accidents.
On May 11, 2009 appellant requested an oral hearing. Following a preliminary review, a
hearing representative vacated the April 15, 2009 decision. He noted that OWCP had the burden
of proof and could not meet its burden through stale medical evidence. The hearing
representative remanded the case for OWCP to refer appellant for a second opinion examination

2

In a report dated April 28, 2009, Dr. Helena Edith Weil, a licensed clinical psychologist, related that appellant
should work with minimum stress in a position similar to her prior job.

2

to determine whether she had a current cervical condition due to her March 29, 1997 work
injury.
On August 13, 2009 OWCP referred appellant to Dr. Philip Z. Wirganowicz, a Boardcertified orthopedic surgeon, for a second opinion examination. It requested that he address
whether she had residuals due to her cervical strain, whether her current cervical spine condition
was due to the March 29, 1997 employment injury and to determine the period of total disability
due to her accepted cervical strain. OWCP provided a statement of accepted facts (SOAF) that
indicated that appellant’s “injury-related neck strain resolved by August 13, 1997.”3
In a report dated August 22, 2009, Dr. Wirganowicz diagnosed a resolved sprain of the
cervical spine due to appellant’s work injury. On examination, he found tenderness to midline
palpation of the cervical spine but no muscle spasm or decreased range of motion.
Dr. Wirganowicz determined that appellant had full motor strength and no atrophy of the upper
or lower extremities and decreased sensation of the thumb, index and long fingers. He found
normal objective findings for the cervical spine and subjective numbers of the fingers consistent
with carpal tunnel syndrome not related to her cervical strain. Dr. Wirganowicz stated,
“[Appellant’s] period of total disability due to her work-related condition would be for [a]
duration of approximately one month from the time of injury.” He found that she could work
without restrictions based on her cervical condition.
By decision dated October 27, 2009, OWCP terminated appellant’s compensation and
authorization for medical benefits for her accepted condition of cervical strain.
On October 26, 2009 appellant, through her representative, requested an oral hearing. At
the hearing, held on March 4, 2010, her representative asserted that appellant had other injuries
employment-related cervical and back conditions which were not included in the SOAF provided
to Dr. Wirganowicz.
On February 18, 2010 Dr. Fatteh reviewed medical reports of record. He disagreed with
Dr. Wirganowicz’ opinion that appellant had no preexisting disability as he noted that she had
prior work injuries to the neck on December 14, 1993 and February 1, 1994. Dr. Fatteh related,
“In the section of the [physician’s] report involving ‘objective findings and subjective
complaints,’ he does acknowledge subjective reports of numbness but chalks them up to possible
carpal tunnel syndrome. I found this to be highly speculative….” He recommended diagnostic
testing to evaluate appellant’s cervical spine and upper extremities. Dr. Fatteh further noted that
Dr. Wirganowicz’ found that appellant had no work restrictions for the cervical spine but opined
that this conclusion “does not take into account [her] two prior industrial cervical spine injuries,
nor does it accurately reflect her current symptomatology without further workup…”
In a statement dated March 24, 2010, appellant’s representative maintained that OWCP
had accepted that appellant sustained a recurrence of disability on August 4, 2008. He listed her
history of work injuries, including a cervical strain injury in 1987.

3

In a progress report dated July 29, 2009, Dr. Weil treated appellant for panic disorder and PTSD.

3

By decision dated May 6, 2010, the hearing representative affirmed the October 27, 2009
decision. She discussed Dr. Fatteh’s opinion that the work injury aggravated a preexisting
cervical condition but noted that he provided no rationale in support of his opinion and that there
was no evidence appellant received treatment for a cervical condition from 1997 until 2007. The
hearing representative phrased the issue as whether appellant had established a recurrence of
disability. She noted that appellant had not explicitly claimed an ongoing cervical condition due
to her 1997 work injury.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or application.4 The Board has
upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.5 The power to annul an award, however, is not an arbitrary one and an
award for compensation can only be set aside in the manner provided by the compensation
statute.6
It is well established that, once OWCP accepts a claim, it has the burden of justifying the
termination or modification of compensation benefits.7 This holds true where OWCP later
decides that it erroneously accepted a claim.8 Having determined that an employee has a
disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. It is required to provide a clear explanation of the rationale for rescission.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained neck sprain and PTSD due to a March 29, 1997
work injury. On August 13, 1997 Dr. Andrews found that she could resume working in her
preinjury limited-duty position.
On September 3, 2008 appellant alleged that she sustained a recurrence of disability
beginning August 4, 2008 due to her March 29, 1997 work injury. She attributed her recurrence
of disability to the employing establishment reassigning her to a position outside of her medical
restrictions. On March 19, 2009 OWCP advised appellant that it had accepted that she
experienced a recurrence of disability on August 4, 2008. As it accepted that she sustained a
recurrence of disability, it has the burden of proof to rescind acceptance.10 In a decision dated
4

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

5

John W. Graves, 52 ECAB 160 (2000).

6

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

7

See Linda L. Newbrough, 52 ECAB 323 (2001).

8

Id.

9

See Andrew Wolfgang-Masters, 56 ECAB 411 (2006); see also 20 C.F.R. § 10.610.

10

See Linda Newbrough, supra note 7.

4

October 27, 2009, OWCP terminated appellant’s compensation and authorization for medical
benefits based on its determination that the opinion of Dr. Wirganowicz, the second opinion
examiner, constituted the weight of the evidence and established that she had no further residuals
of her cervical strain. On May 7, 2010 a hearing representative affirmed the termination after
finding that she had not established a recurrence of disability.
The Board finds that OWCP did not properly adjudicate the issue presented. As OWCP
was not paying appellant compensation, it improperly characterized the issue as termination of
wage-loss compensation. The issue is whether OWCP met its burden of proof to rescind
acceptance of its finding that she sustained a recurrence of disability beginning August 4, 2008.
OWCP referred appellant to Dr. Wirganowicz and requested that he address whether she
had any residuals due to her March 29, 1997 employment injury. It further asked that he
ascertain the period of total disability due to her accepted work injury. OWCP provided
Dr. Wirganowicz with a statement of accepted facts that indicated that appellant’s neck strain
resolved no later than August 13, 1997. This goes to the ultimate question of fact. The issue of
whether she had any further disability or residuals of her employment-related neck strain,
however, was the medical determination that OWCP asked him to resolve. To assure that a
report of a medical specialist is based upon a proper factual background, OWCP provides
information to the physician through the preparation of a statement of accepted facts.11 OWCP’s
procedure manual provides, “When the DMA [district medical adviser], second opinion
specialist or referee physician renders a medical opinion based on a SOAF which is incomplete
or inaccurate or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether.”12 Consequently, as
Dr. Wirganowicz relied upon a SOAF that indicated that appellant’s cervical strain had resolved,
his opinion is of little probative value.
Further, it appears that OWCP was attempting to rescind acceptance of its finding that
appellant established an employment-related recurrence of disability. It, however, must inform a
claimant correctly and accurately of the grounds on which a rejection rests so as to afford the
claimant an opportunity to meet, if possible, any defect appearing therein.13 As OWCP failed to
issue an appropriate decision rescinding its finding that appellant sustained a recurrence of
disability beginning August 4, 2008, it did not meet its burden of proof.14
CONCLUSION
The Board finds that OWCP improperly issued a decision terminating appellant’s
compensation.
11

Helen Casillas, 46 ECAB 1044 (1995).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
13

John M. Pittman, 7 ECAB 514 (1955).

14

In view of the Board’s disposition regarding whether OWCP properly issued a decision terminating appellant’s
compensation, the issue of whether it properly terminated authorization for medical benefits is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2010 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: August 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 09-1033
Issued: December 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 10, 2009 appellant filed a timely appeal from a February 3, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying reconsideration of a July 31,
2008 merit decision. The Board also has jurisdiction over a December 15, 2008 decision.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
refused to reopen appellant’s case for further consideration of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On April 21, 2008 appellant, a 56-year-old postal worker, filed an occupational disease
claim (Form CA-2) alleging that she suffered severe stress disorder as a result of her federal

employment. She alleged that she was “violated by people over [her]” though she could not
recall any specific events or dates. Appellant first realized that her condition was caused or
aggravated by her employment in May 2006. In a subsequent note dated April 21, 2008, she
alleged that her supervisors threatened her, hollered and cursed at her and snatched things out of
her hand. Appellant alleged that she was “scolded by [her] managers.” She also alleged that she
developed stress, depression and fear of the postal system. In separate statements, all three of
these individuals denied appellant’s allegations. The employing establishment controverted
appellant’s claim.
Appellant submitted reports signed by Dr. John B. Black, a Board-certified diagnostic
radiologist, and Dr. Anthony W. Cheng, a Board-certified internist.
By decision dated July 31, 2008, the Office denied appellant’s claim because the
evidence of record was insufficient to demonstrate that employment factors caused her condition.
On August 18, 2008 appellant requested review of the written record.
In an August 11, 2008 note, Dr. Robert G. Summerlin, a psychologist, reported findings
on examination, a review of appellant’s medical history and diagnosed her with adjustment
disorder with depressed mood, occupational problem, malingering and conversion disorder.
Appellant submitted an undated note in which Dr. LaShondra T. Washington, a Boardcertified psychiatrist, reviewed her course of treatment and diagnosed her with severe major
depressive order without psychosis.
By decision dated December 15, 2008, the Office hearing representative affirmed the
Office’s July 31, 2008 decision.
On January 4, 2009 appellant requested reconsideration.
Appellant submitted reports dated October 22 and November 5, 2008, signed by
Dr. Joseph N. Saba, a Board-certified neurologist, who reported findings on examination and
diagnosed her with moderate senile dementia, primary degenerative dementia, aggravation of
depression, hypertension and significant abnormal obesity.
Appellant submitted a copy of Dr. Washington’s undated note as well as additional notes,
dated August 27 and September 8, 2008, also signed by Dr. Washington, diagnosing appellant
with major depressive disorder without psychosis and cognitive disorder.
By decision dated February 3, 2009, the Office denied appellant’s reconsideration
request.1
1

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal, which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision). As this evidence was not part of
the record when the Office issued either of its previous decisions, the Board may not consider it for the first time as
part of appellant’s appeal.

2

LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions, which she believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.
ANALYSIS -- ISSUE 1
Appellant identified her supervisors’ alleged conduct as employment factors that caused
her emotional condition. The Board must, thus, initially review whether these alleged incidents
and conditions of employment are covered employment factors under the terms of the Act.
Appellant alleged that supervisors threatened her, hollered and cursed at her and snatched
things out of her hand. She also alleged that she was “scolded by [her] managers.” The Board
2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

3

has recognized the compensability of physical threats or verbal abuse in certain circumstances.7
To the extent that disputes and incidents alleged are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.8
However, for this type of conduct to give rise to a compensable disability under the Act, there
must be evidence that it actually occurred. Unsubstantiated allegations of harassment or verbal
abuse are not determinative of whether such an incident occurred.9 However, appellant has not
provided sufficient evidence, such as witness statements, to establish that the alleged incident
actually occurred.10 Appellant’s supervisors all denied her allegations and, as previously noted,
her allegations alone are insufficient to establish a factual basis for an emotional condition
claim.11
Moreover, the Board finds that as far as appellant’s allegations purport to relate to
administrative or personnel matters, her vague allegations do not fall within the coverage of the
Act. Allegations which concern a supervisor’s performance of supervisory duties will be
considered to be an employment factor where the evidence discloses error or abuse on the part of
the employing establishment. In determining whether the employing establishment erred or
acted abusively is a question of reasonableness.12 Appellant has not submitted evidence showing
that the employing establishment committed error or abuse with regard to any matter.
Regarding appellant’s allegation that she developed stress, depression and fear of the
postal system, an employee’s dissatisfaction with their employment or employment environment
is not compensable under the Act.13 The Board notes that her reaction to such conditions and
incidents at work must be considered self-generated.14 The Board therefore finds that appellant
has not established a compensable employment factor under the Act with respect to the claimed
conduct of her supervisors and managers.
For the above-mentioned reasons, appellant has not established any compensable
employment factors under the Act and therefore has not met her burden of proof in establishing
that she sustained an emotional condition in the performance of duty.15
7

See Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L. White, 42 ECAB 66, 669-70 (1991).

8

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

9

See Michael Ewanichak, 48 ECAB 364 (1997).

10

See William F. George, 43 ECAB 1159, 1167 (1992).

11

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegation of unfair treatment to determine if the evidence corroborated such
allegations).
12

See Richard J. Duke, 42 ECAB 916, 920 (1991).

13

See Tanya A. Gaines, 44 ECAB 923, 934-35 (1993); Purvis Nettles, 44 ECAB 623, 628 (1993).

14

Tanya A. Gaines, supra note 13.

15

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krycki, 43 ECAB 496, 502-03 (1992).

4

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.17 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.18 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.19
16

ANALYSIS -- ISSUE 2
Appellant’s reconsideration request did not demonstrate that the Office erroneously
applied or interpreted a specific point of law. Her reconsideration request did not advance a
relevant legal argument not previously considered by the Office. Therefore, appellant was not
entitled to reconsideration under the first two enumerated statutory grounds.
Concerning the third enumerated ground, appellant has not submitted relevant and
pertinent new evidence not previously considered by the Office. The relevant issue is whether
compensable employment factors caused her alleged emotional condition. This is a factual issue,
not a medical issue. As such, the reports and notes appellant submitted are not relevant and
pertinent evidence requiring the Office to reopen her claim for merit review.
Because appellant has not satisfied any of the above-mentioned criteria, the Board finds
that the Office properly refused to reopen her case for further review of the merits of her claim.
CONCLUSION
The Board finds that appellant has not satisfied her burden of proof to establish that she
sustained an emotional condition in the performance of duty. The Board also finds that the
Office properly refused to reopen her case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

16

Supra note 2. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2).

18

Id. at § 10.607(a).

19

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2009 and December 15 and
July 31, 2008 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


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

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

Docket No. 17-0981
Issued: July 27, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 4, 2017 appellant, through counsel, filed a timely appeal from a February 1, 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish greater than one percent
permanent impairment of each upper extremity, one percent permanent impairment of the left
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.

lower extremity, and two percent permanent impairment of the right lower extremity, for which
she previously received schedule awards.
FACTUAL HISTORY
On November 28, 2001 appellant, then a 53-year-old sales and services distribution
associate, was injured while working at the service window when her foot caught on a key chain
at the bottom of a drawer, causing her to fall on her hands and knees. OWCP accepted her claim
for contusion of the bilateral hands and knees and aggravation of unspecified internal derangement
of the bilateral knees. Appellant stopped work on the date of injury. She returned to full-time
limited-duty work on May 14, 2012, but retired on January 31, 2013.
On September 25, 2013 appellant filed a claim for a schedule award (Form CA-7). In
support of her claim she submitted a June 6, 2014 medical report from Dr. Karen Garvey, Boardcertified in internal medicine and occupational medicine. Dr. Garvey concluded, using the
diagnosis-based impairment method of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides)3 that appellant sustained
one percent right upper extremity permanent impairment, one percent left upper extremity
permanent impairment, two percent right lower extremity permanent impairment, and one percent
left lower extremity permanent impairment due to the November 28, 2011 employment injury.
By decision dated July 30, 2014, OWCP granted appellant schedule award compensation
for one percent permanent impairment of each upper extremity, one percent permanent impairment
of the left lower extremity, and two percent permanent impairment of the right lower extremity.
On August 1, 2014 appellant filed a claim for increased schedule award compensation
(Form CA-7). By letter dated August 6, 2014, OWCP advised appellant of the type of evidence
necessary to establish her claim, noting that no new medical evidence had been submitted. By
decision dated October 8, 2014, OWCP denied additional schedule award compensation as
appellant failed to submit evidence of permanent impairment greater than that which was
previously awarded.
On March 20, 2015 appellant filed a claim for increased schedule award compensation
(Form CA-7).
In a report dated July 8, 2015, Dr. Sean Lager, Board-certified in orthopedic sports
medicine and orthopedic surgery, noted appellant’s history of injury and treatment and provided
impairment ratings for her bilateral upper and lower extremities. He examined appellant’s wrists
and hands and found that she had flexion of 50 degrees and extension of 55 degrees on the right.
Dr. Lager determined that appellant had flexion of 50 degrees and extension of 65 degrees on the
left. He found grip strength of 4 +/5 on the right and 4/5 on the left. Dr. Lager noted that flexion
and extension was 5/5 bilaterally.
Regarding the knees, Dr. Lager found patellar tenderness on the right and medial and
lateral joint line tenderness on the right. He found no effusion in either knee. Dr. Lager determined
3

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

2

that appellant had medial and lateral joint line tenderness on the left and patellar tenderness on the
left. He found that she was guarding during the knee examination. Dr. Lager noted that he was
unable to elicit much of an examination as he could not test for ligament instability or specifically
anterior cruciate instability. Regarding flexion, he found that appellant had flexion of three out of
five bilaterally and extension of 3+/5 bilaterally. Additionally, Dr. Lager noted that she could
barely perform a straight leg raise versus gravity on the left. He provided range of motion findings,
which included: 0 degrees of extension to 90 degrees of flexion on the left. With regard to the
right leg, Dr. Lager found 0 degrees of extension to 105 degrees of flexion. He determined that
appellant reached maximum medical improvement on August 29, 2013. Dr. Lager noted that she
walked with a cane. However, regarding his examination of the knees, appellant’s complaints
were a bit out of proportion to the intensity of the injury. Dr. Lager reiterated that she was guarding
during the knee examination and that he was unable to elicit much of an examination as he could
not test for ligament instability or specifically anterior cruciate ligament (ACL) instability. He
noted that appellant complained of some tenderness around the knee joints bilaterally, and he
believed that she gave a poor effort on physical examination and he questioned her motivation.
With respect to her bilateral wrist conditions, Dr. Lager explained that appellant’s
condition was classified as a class 0, with no significant symptoms or signs at maximum medical
improvement. He advised that this was met based on the history of symptoms reported and the
objective findings. Dr. Lager referred to Table 15-3 of the A.M.A., Guides.4 He referred to Table
15-75 for functional history and determined that appellant had a grade modifier of 0. For physical
examination, Dr. Lager referred to Table 15-86 and determined that appellant had a physical
examination grade modifier of 1-mild problem. He found that wrist grip strength was 4+/5 on the
right and 4/5 on the left. For clinical studies, Dr. Lager referenced Table 15-97 and found a grade
modifier of 0. He noted that there were no available clinical studies of the right elbow. Dr. Lager
utilized the net adjustment formula.8 He referenced Table 15-39 and determined that appellant had
one percent impairment of each wrist. Dr. Lager reiterated that appellant gave a poor effort on
physical examination.
Turning to the bilateral knee conditions, Dr. Lager explained that it was classified as a class
0 with no significant symptoms or signs at maximum medical improvement. He explained that
this was based on the history of symptoms reported and the objective findings. Dr. Lager
referenced Table 16-3.10 He indicated that, for functional history, appellant had a grade modifier

4

A.M.A., Guides 395.

5

Id. at 406.

6

Id. at 408.

7

Id. at 410.

8

Id. at 411.

9

Id. at 395.

10

Id. at 509.

3

of 1 and referenced Table 16-6.11 Dr. Lager referenced Table 16-712 regarding a physical
examination adjustment and determined that appellant had a grade modifier 1 for a mild problem.
He determined that flexion and extension was 3/5 bilaterally. Dr. Lager noted that appellant could
barely perform a straight leg raise versus gravity, as he could not test for ligament instability or
specifically ACL instability. He referenced Table 16-813 for clinical studies and indicated that
appellant had a grade modifier of 0. Dr. Lager noted that the magnetic resonance imaging (MRI)
scans of her knees did not indicate that there were any tears, only osteoarthritis. He utilized the
net adjustment formula and determined that appellant had two percent impairment of each knee in
accordance with the A.M.A., Guides.14
On November 2, 2015 OWCP referred the medical evidence and the record to OWCP’s
medical adviser, Dr. Henry Magliato, a Board-certified orthopedic surgeon.
In a November 12, 2015 report, OWCP’s medical adviser, Dr. Magliato, noted the history
of injury and treatment and reviewed Dr. Lager’s report. Regarding the impairment rating for the
wrists and the knees, he explained that Dr. Lager’s report incorrectly adjusted the class 0
impairment. Dr. Magliato explained that any extremity that fit into a class 0 was automatically
zero percent permanent impairment for that extremity. He noted that appellant had already
received schedule awards of one percent for both upper extremities and two percent for the right
lower extremity and one percent for the left lower extremity. Dr. Magliato opined that the class 0
result did not matter. Regarding the date of maximum medical improvement, he explained that
the date used by Dr. Lager, August 29, 2013, was based upon a prior treating physician report.
Rather, October 18, 2013, the date of Dr. Lager’s report, should be used.
By letter of December 11, 2015, OWCP provided Dr. Lager with a copy of Dr. Magliato’s
report and requested an addendum report with specified information. Specifically, it noted that
Dr. Magliato reviewed his report and found that he had mistakenly adjusted a class 0 for all the
claimed impairment. OWCP advised Dr. Lager that, according to the A.M.A., Guides, any
extremity that fits into class 0 was automatically 0 percent permanent impairment.
By letter dated February 11, 2016, counsel provided OWCP with a supplemental report
from Dr. Lager.
In the January 11, 2016 supplemental report, Dr. Lager explained that he had inadvertently
adjusted a class 0 for the claimed impairment. He noted that, pursuant to the A.M.A., Guides, any
extremity that fit into a class 0 was automatically zero percent impairment. Dr. Lager noted that
appellant did not appear to have any studies made of her wrists and she had therapy for over a year.
He also indicated that she had injections in her knees and was discharged from treatment for quite

11

Id. at 516.

12

Id. at 517.

13

Id. at 519.

14

Id. at 521.

4

a while. Dr. Lager advised that appellant was at maximum medical improvement, which occurred
on August 29, 2013.
By decision dated March 31, 2016, OWCP denied appellant’s claim for increased schedule
award compensation. It found that the medical evidence of record was insufficient to establish
greater permanent impairment than that which was previously awarded.
By letter dated April 15, 2016, appellant, through counsel, requested a telephonic hearing,
which was held on December 7, 2016. During the hearing, appellant described her continuing
injury-related problems and limitations. She also indicated that she continued to receive treatment.
OWCP also received reports, dated May 6, June 3, August 12, and November 18, 2016
from Dr. Mitchell Kaphan, Board-certified in orthopedic surgery and orthopedic sports medicine.
However, these reports did not provide an impairment rating pursuant to the A.M.A., Guides.
By decision dated February 1, 2017, OWCP affirmed the March 31, 2016 decision as there
was no evidence of a greater permanent impairment than that which was previously awarded.
OWCP’s hearing representative also noted that, as appellant was previously awarded
compensation for one percent permanent impairment of each upper extremity, one percent
permanent impairment of the left lower extremity, and two percent permanent impairment of the
right lower extremity in accordance with the A.M.A., Guides, and was now found to have zero
percent impairment of each upper and lower extremity, OWCP should compute the overpayment
of compensation and issue an appropriate preliminary finding in that regard.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.15 Section 8107
of FECA sets 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.16 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. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.17
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing

15

See 20 C.F.R. §§ 1.1-1.4.

16

5 U.S.C. § 8107(c)(1).

17

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

5

of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).18 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.19
Specifically for addressing lower extremity impairment, the sixth edition requires
identification of the impairment class of diagnosis (CDX) condition, which is then adjusted by
grade modifiers based on functional history (GMFH), physical examination (GMPE), and clinical
studies (GMCS). The net adjustment formula is (GMFH – CDX) + (GMPE – CDX) + (GMCS –
CDX).20 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating
choices, including choices of diagnoses from regional grids and calculations of modifier scores.21
Section 16.2a of the A.M.A., Guides, provides that if the class selected is defined by physical
examination findings or clinical studies results, these same findings may not be used as grade
modifiers to adjust the rating.22
ANALYSIS
The Board finds that this case is not in posture for decision with regard to whether appellant
has established greater permanent impairment of her upper extremities than that which was
previously awarded. The Board further finds that appellant has not met her burden of proof to
establish greater permanent impairment of her for her bilateral lower extremities for which she
previously received schedule award compensation.
In granting schedule awards for permanent impairment of the upper extremities, the Board
has found that OWCP has inconsistently applied Chapter 15 of the sixth edition of the A.M.A.,
Guides. No consistent interpretation has been followed regarding the proper use of the diagnosisbased impairment (DBI) methodology or the range of motion (ROM) methodology when assessing
the extent of permanent impairment for schedule award purposes.23 The purpose of the use of
uniform standards is to ensure consistent results and to ensure equal justice under the law to all
claimants.24 In T.H., the Board concluded that OWCP’s physicians are at odds over the proper
18
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
19

Isidoro Rivera, 12 ECAB 348 (1961).

20

A.M.A., Guides, 521

21
A.M.A., Guides 4, section 1.3. The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement; W.S., Docket No. 16-1111 (issued March 14, 2017).
22

A.M.A., Guides, 500.

23

T.H., Docket No. 14-0943 (issued November 25, 2016).

24

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
medical advisers use both DBI and ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board has observed that physicians interchangeably cite to language in
the first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians are inconsistent in the application of the A.M.A., Guides, the
Board has found that OWCP could no longer ensure consistent results and equal justice under the
law for all claimants.25
Utilizing a consistent method for calculating permanent impairment for upper extremities
to be applied uniformly,26 and such other development as may be deemed necessary, OWCP shall
issue a de novo decision on appellant’s claim for an increased schedule award compensation with
regard to her bilateral upper extremities.
With regard to appellant’s lower extremity impairment, appellant provided a July 8, 2015
report from Dr. Lager, who noted appellant’s history of injury and treatment and utilized the
A.M.A., Guides. Dr. Lager later submitted a supplemental report dated January 11, 2016. In his
July 8, 2015 report, regarding the lower extremities, Dr. Lager examined appellant and found
patellar tenderness on the right and medial and lateral joint line tenderness on the right. He
determined that there was no effusion in either knee and that appellant had medial and lateral joint
line tenderness on the left and patellar tenderness on the left. Dr. Lager referred to the A.M.A.,
Guides and explained that, for the bilateral knee condition, it was classified as a class 0 with no
significant symptoms or signs at maximum medical improvement. Following the use of
appropriate grade modifiers and the net adjustment formula he determined that appellant had two
percent permanent impairment of each knee in accordance with the A.M.A., Guides.
In a November 12, 2015 report, OWCP’s medical adviser, Dr. Magliato, noted the history
of injury and treatment and reviewed Dr. Lager’s report. He explained that Dr. Lager’s report
incorrectly adjusted the class 0 and explained that any extremity that fit into a class 0 was
automatically zero percent impairment for that extremity. Dr. Magliato concluded that appellant
had no permanent impairment of any upper or lower extremity.
In his January 11, 2016 supplemental report, Dr. Lager explained that he had inadvertently
adjusted a class 0 for the claimed impairment. He noted that, pursuant to the A.M.A., Guides, any
extremity that fit into a class 0 was automatically zero percent impairment. Therefore, Dr. Lager
amended his findings such that he opined that appellant had zero percent permanent impairment
of her bilateral lower extremities.
OWCP also received reports, dated May 6, June 3, August 12, and November 18, 2016,
from Dr. Kaphan. However, these reports did not provide an impairment rating pursuant to the
A.M.A., Guides and therefore do not provide any support for an increased schedule award of any
extremity.

25

Supra note 23.

26

See FECA Bulletin No. 17-06 (issued May 8, 2017).

7

Having duly considered the medical evidence of record, the Board finds that there is no
evidence that suggests that appellant has greater permanent impairment of her bilateral lower
extremities greater than that which was previously awarded.
Appellant may request a schedule award or increased schedule award at any time 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 the case is not in posture with regard to appellant’s bilateral upper
extremity permanent impairment. The Board further finds that appellant has not established
greater permanent impairment than the one percent of the left lower extremity and two percent of
the right lower extremity previously awarded.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision.
Issued: July 27, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Norfolk, VA, Employer
)
__________________________________________ )
B.M., Appellant

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

Docket No. 10-618
Issued: December 10, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 4, 2010 appellant filed a timely appeal from a July 20, 2009 merit decision of
the Office that denied his occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly denied appellant’s occupational disease claim on
the grounds that it was not timely filed under 5 U.S.C. § 8122.
FACTUAL HISTORY
On April 22, 2009 appellant, then 56-year-old retired letter carrier, filed an occupational
disease claim alleging that his low back condition and sciatic nerve damage were due to his
employment duties as a letter carrier. He indicated that he was first aware of his condition on
February 18, 2002. The employing establishment indicated that appellant first reported his
condition to a supervisor on April 21, 2009. Appellant resigned from the employing
establishment on April 10, 2009.

In a separate statement, appellant stated that he worked at the employing establishment as
a letter carrier since 2000 with the previous eight years spent working as a regular carrier in
which he walked four to six hours daily. He further described his duties and stated that, in
February 2002, he was medically recommended to be excused from work and limit his activities
for weeks at a time. Appellant stated that, over the course of seven years, he had to use many
hours of sick leave. He advised his lumbar x-ray films from February 2002 showed degenerative
disc disease at L4-5 and degenerative changes at L3-5 vertebrae and his March 2002 magnetic
resonance imaging (MRI) scan noted degenerative changes at L3-5. Appellant stated that the
delay in filing his claim was due to the fact that his back condition worsened and he decided
continuing his employment with the employing establishment would only worsen his condition.
In a May 7, 2007 letter, the Office requested additional factual and medical information
from appellant. Appellant submitted a July 8, 2009 statement along with a July 6, 2009 medical
report from Dr. Charlene Darrow, a Board-certified family practitioner, who indicated that she
had been his primary care manager since July 2002. Dr. Darrow stated that appellant first
presented to the clinic on February 18, 2002 complaining of low back pain for two weeks after
heavy lifting. She reported on his findings as well as the objective evidence obtained in
February and March 2002. Dr. Darrow stated that appellant had performed manual-type labor
for most of his adult life and advised that the degenerative disc and spine changes noted on
x-rays in February 2002 developed over many years. She indicated that appellant’s work as a
mail carrier from 2000 until recently had subjected him to heavy lifting, bending and carrying a
35-pound mailbag asymmetrically on one shoulder while negotiating sometimes uneven terrain
and physical obstacles. Dr. Darrow noted that his most recent pain flare was aggravated when he
was knocked down by an aggressive dog. She opined that, while appellant’s spine condition
developed years ago, the rigors of his work as a mail handler/carrier contributed to the sciatic
radicular symptoms, ongoing pain and limitations in activities and adversely affected his quality
of life.
By decision dated July 20, 2009, the Office denied appellant’s claim on the grounds that
the evidence of record failed to demonstrate that it was timely filed in accordance with 5 U.S.C.
§ 8122. It found that he first became aware of his condition on February 18, 2002 and that he
had filed his claim for compensation on April 22, 2009. The Office found appellant should have
become aware of a relationship between his employment and the claimed condition by
April 10, 2009. It further noted that there was no evidence that appellant’s supervisor had
knowledge of an employment-related injury within 30 days.
LEGAL PRECEDENT
Section 8122(a) of the Federal Employees’ Compensation Act1 states that an original
claim for compensation for disability or death must be filed within three years after the injury or
death.2 Section 8122(b) provides that in latent disability cases, the time limitation does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been

1

5 U.S.C. § 8122(a).

2

Id.

2

aware, of the causal relationship between the employment and the compensable disability.3 The
Board has held that, if an employee continues to be exposed to injurious working conditions after
such awareness, the time limitation begins to run on the last date of this exposure.4
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
his immediate supervisor had actual knowledge of the alleged employment-related injury within
30 days. The knowledge must be such as to put the immediate supervisor reasonably on notice
of appellant’s injury.5 An employee must show not only that his immediate supervisor knew that
he was injured, but also knew or reasonably should have known that it was an on-the-job injury.6
ANALYSIS
In its July 20, 2009 decision, the Office denied appellant’s claim for compensation on the
grounds that the evidence of record failed to demonstrate that his claim was timely filed in
accordance with 5 U.S.C. § 8122.
Appellant indicated on the CA-2 form, notice of occupational disease claim, submitted on
April 22, 2009, that he first became aware of a connection between his claimed back condition
and his employment on February 18, 2002. Thus, he had actual awareness of the claimed
relationship no later than February 18, 2002. The record reveals, however, that appellant
remained exposed to the work factors alleged to have caused his condition until he resigned,
April 10, 2009. As noted, if an employee continues to be exposed to injurious working
conditions after becoming aware of a relationship between his employment and his claimed
condition, the time limitation begins to run on the last date of this exposure. Therefore, the time
limitations began to run on April 10, 2009, the date on which he was last exposed to conditions
of his employment alleged to have caused his claimed condition. As appellant filed his claim on
April 22, 2009, his claim was timely filed within the three-year time limitation period under
section 8122. Therefore, the Board will remand the case to the Office to address the merits of
the claim.
On appeal, appellant asserts that the Office should have accepted his claim as his
condition developed and worsened over a period of time. As the case must be remanded for
additional consideration, it is premature for the Board to address appellant’s argument.
CONCLUSION
As appellant timely filed a claim in accordance with 5 U.S.C. § 8122, the case is
remanded to the Office for further development of the merits of the claim.
3

Id. at § 8122(b).

4

See Mitchell Murray, 53 ECAB 601 (2002); Alicia Kelly, 53 ECAB 244 (2001); Larry E. Young, 52 ECAB 264
(2001); Garyleane A. Williams, 44 ECAB 441 (1993).
5

5 U.S.C. § 8122(a)(1); see also Jose Salaz, 41 ECAB 743 (1990); Kathryn A. Bernal, 38 ECAB 470 (1987); see
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3) (March 1993).
6

Charlene B. Fenton, 36 ECAB 151 (1984).

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 20, 2009 is reversed. The case is remanded for further action consistent with
this decision of the Board.
Issued: December 10, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4