United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, NEWTON POST
OFFICE, Newton, PA, Employer
__________________________________________

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

Docket No. 09-90
Issued: April 3, 2009

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 October 15, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated November 7, 2007 and July 7, 2008. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition
while in the performance of duty.
FACTUAL HISTORY
On May 29, 2007 appellant, then a 55-year-old supervisor, filed a claim for an
occupational disease (Form CA-2) alleging that on January 9, 2007 he became aware of his
stress, anxiety and severe depression. On January 15, 2007 he realized that his conditions were
caused by his federal employment. Appellant stopped work on January 25, 2007. A May 30,
2007 report of Lucia Metter, a licensed social worker, stated that appellant’s major depressive

disorder was caused by being accused of misconduct and deprived of his job duties by the
employing establishment.
On appellant’s CA-2 form, James Holland, an employing establishment officer-in-charge,
stated that he was unable to verify appellant’s conditions because appellant never discussed them
with him. He was aware of appellant’s preexisting blood pressure problems.
By letter dated June 5, 2007, the employing establishment controverted appellant’s claim.
It contended that his emotional condition was self-generated and not caused by his employment.
The employing establishment further contended that it had not acted abusively or erred in
handling administrative matters. It stated that appellant had not submitted any medical evidence
establishing a causal relationship between his emotional condition and employment factors.
In a June 27, 2007 narrative statement, appellant attributed his emotional condition to
several work incidents. In September 2006, he returned to the office to drop something off after
attending safety training and before going to a 3:00 p.m. medical appointment. Mr. Holland
ordered him to immediately complete a form and fax it either before or after his medical
appointment to an employee in the internal control group who needed it before she left work at
3:30 p.m. Appellant stated that he was forced to cancel and reschedule the appointment because
he was going to be late and he would not have been able to return to the office before the end of
the employee’s tour since he had to travel 25 miles each way.
Appellant stated that in October 2006 he was never released to work in a detail
assignment despite being given several release dates. He stated that the assignment could have
helped him to obtain a promotion. Appellant was never given a reason for why he was not
allowed to work in the position.
In November 2006, Mr. Holland continually made excuses as to why appellant could not
be released to work in a detail assignment as a customer services manager. He stated that
appellant would fail and that he would be released for a short defined term. Mr. Holland made it
clear to him that he would not be allowed to apply for annual leave in December 2006 despite his
plans to use leave for personal family reasons. Appellant stated that he was only able to take a
couple of days off because he had use or lose leave. Mr. Holland ordered him to work six days
per week until further notice while another supervisor in his office was allowed to take a
nonscheduled day off.
On December 7, 2006 Mr. Holland advised appellant that his inventory of unit reserve
stock revealed a shortage of $46,000.00. On December 8, 2006 appellant conducted an
inventory of retail floor stock which revealed an overage. Mr. Holland told him to discard the
paperwork from this inventory and that either he or someone else would recount the stock on
December 10, 2006. Appellant performed the recount on December 10, 2006 which revealed the
same overage found on December 8, 2006.
On December 9, 2006 appellant was scheduled to start work in a higher level detail
position. Mr. Holland instructed him to advise his manager that he would not be able to start
work until an investigation regarding the stock shortage had been completed. After doing so, the
manager rescinded the job offer because he needed someone to start work immediately.

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During a meeting on December 14, 2006 Mr. Holland verbally and in writing advised
appellant that he was relieved of his financial accountability. He took appellant’s office keys and
advised him that his access to various areas of the office was limited because he was not allowed
to go near accountable papers.
On January 25, 2007 appellant called in sick with an illness protected under the Family
Medical and Leave Act (FMLA) for which he had received prior approval. In February 2007, he
received a “five day” letter from Mr. Holland regarding his absence. Appellant stated that he
should not have received this letter since he had submitted the necessary documentation. He
related that Mr. Holland did not issue a disciplinary letter to a coworker who was out on sick
leave three days prior to his absence and was still out of work.
On January 29 and in March 2007, Mr. Holland revoked appellant’s access to network
programs, including the time and attendance control system which was vital to his performance
as a supervisor.
A National Association of Letter Carriers (NALC) officer advised appellant that during a
March 29, 2007 meeting, a former operations manager stated that appellant was out of work due
to a stock shortage. The NALC officer also informed appellant that other postal employees had
related this incident to him. Appellant contended that the mishandling of the count had
irreparably harmed his reputation especially to individuals who were responsible for making
selections for higher level detail and permanent assignments.
In May 2007, Mr. Holland advised appellant that since he had exceeded 480 hours of
protected sick leave, he could no longer submit his medical documentation to the FMLA
coordinator. Instead, he had to submit all future medical documentation directly to the
employing establishment. Appellant believed that this was an attempt to circumvent the Privacy
Act as his physicians would not release his records without his consent.
Appellant originally submitted his CA-2 form to Mr. Holland in early May 2007 but he
returned it because it was incomplete. He advised appellant to submit the necessary information
and any medical reports to him despite appellant’s desire to submit the form himself.
Appellant applied for numerous positions at the employing establishment from
December 7, 2006 through the present. During an interview for one of these positions, he was
questioned for the first time about his stock overages and shortages. Appellant contended that, if
the original count had been handled correctly and Mr. Holland had not been so determined to
prevent him from obtaining higher level assignments, he would have received a promotion.
A June 6, 2007 medical report of Dr. Thomas S. Sacchetti, a Board-certified
neurophysiologist, an undated report of Mark H. Wagner, Ph.D. and hospital discharge
instructions addressed appellant’s emotional condition.
By letter dated July 30, 2007, the Office requested that the employing establishment
respond to appellant’s allegations. Also on July 30, 2007, it advised appellant that the evidence
submitted was insufficient to establish his claim. The Office requested additional factual
evidence.

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The employing establishment submitted documents related to appellant’s use of leave
under the FMLA beginning on January 26, 2007 and its investigation of his shortage. In a
July 27, 2007 Equal Employment Opportunity (EEO) investigative affidavit, Mr. Holland stated
that the limitation of appellant’s access to certain network systems, confiscation of keys and
changes to the safe combinations occurred because he was relieved of any responsibility
pertaining to the handling and accounting of postal funds and accountable items. These actions
were necessary to protect the interest of the employing establishment during the investigation of
appellant’s shortage. Mr. Holland stated that no disciplinary action had been taken against
appellant related to this matter. He revoked appellant’s access to certain systems while he was
home on extended sick leave because the employing establishment’s policy stated that
employees who worked off the clock at home were not allowed to access these systems.
Mr. Holland noted that no other employees had access to this system unless they were acting as
“POOM.” He had not provided appellant with a reason for revoking his access because he had
not returned to duty. Mr. Holland planned to discuss this matter with him when he returned to
work. He stated that appellant was not out of work due to his shortage but, rather he was on sick
leave under the FMLA. Mr. Holland denied telling John Harrison, an acting operations manager,
that appellant was out of work due to the shortage. He was not aware of any regulation that
addressed confidentiality when a stock shortage occurred. Mr. Holland noted that reports
generated about this matter were available to anyone with access to the postal networks and who
witnessed the count. The inspector general’s office, internal control group and Mr. Harrison
were also notified about the shortage.
By letter dated August 7, 2007, appellant stated that he was never removed from his
supervisory position due to a financial discrepancy. Instead, the employing establishment took
his keys and limited his access to areas in the building that did not contain accountable papers.
Appellant contended that these actions created a hostile work environment for which he filed an
EEO complaint. In an undated EEO affidavit, appellant stated that on March 17, 2007 he
discovered that his access to network systems at work was revoked by Mr. Holland when he
attempted to access them from his home computer. He stated that Mr. Harrison disclosed that he
was not working due to his stock shortage to the NALC officer. Appellant contended that a
manager had an obligation to keep investigative information confidential. He noted that a
decision was issued on May 10, 2001 regarding a 1997 EEO claim he filed against the
employing establishment alleging discrimination on the basis of race, color, sex and reprisal for
prior EEO activity. Appellant contended that his coworkers who had stock discrepancies did not
have their access to programs revoked by the employing establishment. He stated that, since
Mr. Holland refused to discuss the decision to revoke his access, the only reason for such action
was either retribution or unlawful bias.
In an undated letter, Hans P. Aglidian, Mid-East Vice President of the National
Association of Postal Supervisors, stated that one of his primary responsibilities was to attempt
to resolve problems/issues between supervisors and higher level managers. He stated that
Mr. Holland refused to resolve the issue with appellant regarding the imbalance in appellant’s
stock even though an independent audit by the internal control group could have helped resolve
the issue.
By decision dated November 7, 2007, the Office found that appellant failed to establish a
compensable factor of his employment.

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On December 1, 2007 appellant requested a telephonic hearing before an Office hearing
representative. During the March 18, 2008 hearing, he testified that there were no witnesses to
corroborate his allegations regarding the employing establishment’s statements as they were
made behind closed doors.
By letter dated April 19, 2008, appellant advised the Office that Ivan Butts, President of
the Pennsylvania State National Association of Postal Supervisors Organization, was not
comfortable with providing a written witness statement but, he was willing to provide a verbal
statement if contacted by the Office. An April 11, 2008 narrative statement of Geary Wertz, a
NALC union representative, stated that, following a meeting, Postmaster Harrison mentioned
appellant’s shortage. Mr. Wertz did not recall exactly how or why appellant’s name arose during
the conversation.
By decision dated July 7, 2008, an Office hearing representative affirmed the
November 7, 2007 decision. Appellant failed to establish a compensable factor of his
employment.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.1 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
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 under the Act.5 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
1

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

2

See Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

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or other requirement imposed by the employing establishment or by the nature of his work.6
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 under the Act.
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.7 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.8
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. 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 his frustration from not being
permitted to work in a particular environment or to hold a particular position.9 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.10
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.11
ANALYSIS
Appellant attributed his emotional condition to the alleged actions of Mr. Holland, an
officer-in-charge. According to appellant, Mr. Holland’s request that he submit a document by a
certain deadline caused him to reschedule his medical appointment and Mr. Holland’s refusal to
release appellant to work in his approved detail assignments prevented him from obtaining a
promotion. Mr. Holland never told appellant the reasons he could not work in the detail
assignments. Appellant contended that, because Mr. Holland mishandled the investigation of his
stock shortage his keys were taken from him, preventing him from access to various areas in the
office. He was unable to obtain a promotion. Appellant also stated that the revocation of his
computer access prevented him from performing his job as a supervisor. He noted that other
coworkers who had stock discrepancies were not denied access to computer programs.
6

Lillian Cutler, supra note 3.

7

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

8

Id.

9

Lillian Cutler, supra note 3.

10

Michael L. Malone, 46 ECAB 957 (1995).

11

Charles D. Edwards, 55 ECAB 258 (2004).

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Appellant filed an EEO claim pertaining to Mr. Holland’s removal of his keys and revocation of
his computer access. He related that Mr. Holland incorrectly issued a “five day” letter to him
even though he had received prior approval for sick leave beginning January 25, 2007 under the
FMLA, yet he contended that his coworker who was out of work on sick leave did not receive
this type of letter. Appellant stated that Mr. Holland improperly instructed him to submit
medical documentation.
Appellant’s allegations regarding the denial of his request to be assigned to a different
position,12 investigation of his stock shortage,13 his filing of a grievance,14 issuance of a
disciplinary letter,15 request for medical documentation16 and handling of his occupational
disease claim17 relate to noncompensable administrative and personnel matters. However, error
or abuse by the employing establishment in an administrative or personnel matter may afford
coverage.18 Appellant did not submit any evidence which established error or abuse in the
issuance of the “five day” letter, request for medical documentation and handling his
occupational disease claim by Mr. Holland. He stated that Mr. Holland stated that he would fail
in a detail assignment and that he could only work in the position for a definite time period.
However, appellant has not submitted any evidence to corroborate his allegation. He filed an
EEO grievance related to the investigation of his stock shortage but, the record does not contain
a final decision regarding the grievance. Although, Mr. Aglidian stated that Mr. Holland refused
his offer to help resolve the issue pertaining to appellant’s stock shortage, the record does not
establish that Mr. Holland was required to accept assistance from Mr. Aglidian. Mr. Holland
explained that appellant’s access to certain computer systems was revoked because he was at
home on sick leave and employing establishment policy did not allow employees who worked
off the clock at home to access its system. He further stated that appellant was not provided a
reason for the revocation because he had not returned to work. Mr. Holland planned to discuss
this matter with him when he returned to work. He noted that appellant was not working because
he was on sick leave under the FMLA and not due to the stock shortage. The Board finds that
appellant has not substantiated that the employing establishment erred or acted abusively with
regard to its denial of his request to be assigned to a different position, investigation of his stock
shortage, issuance of the disciplinary letter, request for medical documentation and the handling
of his occupational disease claim. Accordingly, appellant has not established a compensable
factor of employment.

12

D.L., 58 ECAB ____ (Docket No. 06-2018, issued December 12, 2006).

13

Ernest St. Pierre, 51 ECAB 623 (2000).

14

Michael A. Salvato, 53 ECB 666, 668 (2002).

15

Diane C. Bernard, 45 ECAB 223 (1993).

16

James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

17

See Ronald K. Jablanski, 56 ECAB 616 (2005).

18

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on
recon., 42 ECAB 566 (1991).

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Appellant contended that he did not receive a promotion because Mr. Harrison, an acting
operations manager, and his unidentified coworkers had informed a NALC officer that appellant
was not working due to a shortage in his stock. He was asked about the shortage during an
interview for a position at the employing establishment. Appellant contended that a manager had
an obligation to keep investigative information confidential. Mr. Wertz, a NALC union
representative, stated that Postmaster Harrison told him about appellant’s stock shortage, but he
did not recall exactly how or why his name arose during the conversation. Further, Mr. Holland
stated that he was not aware of any employing establishment regulation which required
confidentiality when a stock shortage occurred. He related that several people had access to the
reports regarding the shortage and investigation. Although appellant may not have liked
Postmaster Harrison’s statement, it is well established that not every statement uttered in the
workplace will give rise to coverage under the Act.19 The Board finds that he has not established
a compensable employment factor.20
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition while in the performance of duty.

19

Charles D. Edwards, 55 ECAB 258, 271 (2004).

20

As appellant has not submitted the necessary evidence to substantiate a compensable factor of employment as
the cause of her emotional condition, the medical evidence regarding appellant’s emotional condition need not be
addressed. Karen K. Levene, 54 ECAB 671 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the July 7, 2008 and November 7, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 3, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Weirton, WV, Employer
__________________________________________

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Appearances:
Kevin L. Card, for the appellant
Office of Solicitor, for the Director

Docket No. 14-2041
Issued: June 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 23, 2014 appellant, through her representative, filed a timely appeal from a
May 1, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 25 percent permanent impairment to his
right lower extremity, for which he has received a schedule award.
FACTUAL HISTORY
Appellant, a 54-year-old letter carrier, injured his right knee on April 16, 2011 when his
knee buckled while he was carrying a 25-pound tray of mail into a truck. He filed a claim for
benefits which OWCP accepted for aggravation of preexisting right knee osteoarthritis.
1

5 U.S.C. § 8101 et seq.

On August 31, 2011 appellant underwent surgery for total right knee replacement. The
procedure was performed by Dr. Dana C. Mears, Board-certified in orthopedic surgery. OWCP
authorized the surgery.
In a February 14, 2012 report, Dr. Mears stated that appellant was doing well six months
after his total right knee joint replacement procedure. He advised that appellant had returned to
work as a mail carrier and was experiencing minimal discomfort in his knee. Appellant had
normal toe/heel reciprocal gait, no deformity, no soft tissue swelling, stable flexion of 0 to 100
degrees in the knee, and satisfactory patellar tracking.
On October 16, 2013 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his right lower extremity.
In an April 16, 2013 report, Dr. Michael J. Platto, a specialist in physical medicine and
rehabilitation, found that appellant had 59 percent right lower extremity impairment stemming
from his accepted right knee sprain, right knee osteoarthritis, and right knee replacement
conditions pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (sixth edition) (A.M.A., Guides).2 He stated that on examination
appellant had a range of motion in the right knee of 117 degrees of flexion. Dr. Platto found,
however, that appellant lacked 23 degrees to full extension. He further found that appellant had
moderate instability, moderate positive Lachman’s sign of the right knee, with mild tenderness to
palpation over the superior, and medial aspects of the right knee and moderate crepitus.
Dr. Platto advised that appellant had undergone a right total knee arthroplasty due to his
accepted osteoarthritis condition. He used a diagnosis-based impairment method, finding that
under Table 16-3, pages 509 and 511, Knee Regional Grid, Lower Extremity Impairments,
appellant’s right knee replacement yielded a class 4 rating for moderate-to-severe instability
and/or severe motion deficit, based on a positive Lachman’s sign.3 Dr. Platto also stated that
appellant’s lacking 23 degrees of extension in his right knee qualified him for a severe motion
impairment based on Table 16-23, page 549. He stated that the default rating for this motion
impairment was 67 percent (page 511). Dr. Platto advised that appellant underwent an American
Academy of Orthopedic Surgeons (AAOS) hip and knee, lower extremity impairment
questionnaire for the lower limb, on which appellant had a core scale, standardized mean score
of 48 and a normative score of 19, which yielded a moderate deficit pursuant to the Adjustment
Grid, Functional History, at Table 16-6, page 516 of the A.M.A., Guides.4 He stated that
appellant was not entitled to a grade modifier for physical examination, as range of motion and
instability were used to fix the clinical class, nor was he entitled to a grade modifier for clinical
studies, as the August 31, 2011 operative report was used to fix the clinical class.
Using the net adjustment formula at page 521,5 Dr. Platto subtracted the grade of 4 from
the functional history grade modifier 2 for a net adjustment of minus 2. Using Table 16-3, page
2

5 U.S.C. § 8107.

3

A.M.A., Guides 509, 511.

4

Id. at 516.

5

Id. at 521.

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511, he found that this moved the initial default impairment of 67 percent two slots over, which
produced an adjusted impairment of 59 percent for the right lower extremity.
In a December 19, 2013 report, Dr. Arnold T. Berman, Board-certified in orthopedic
surgery and an OWCP medical adviser, reviewed Dr. Platto’s April 16, 2013 report and found
that appellant had 25 percent right lower extremity impairment in conformance with the sixth
edition of the A.M.A., Guides. He noted that Dr. Mears found that appellant had achieved an
excellent result and recommended a return to full duty as a mailman, noting that he had minimal
discomfort in the right knee and range of motion from 0 to 100 degrees with no deformity.
Dr. Berman stated that these examination findings by appellant’s surgeon were totally
contradictory to Dr. Platto’s findings with regard to the quality of the result and range of motion
in the right knee. He noted that Dr. Platto is not an orthopedic surgeon and that Dr. Mears is a
well-known knee replacement surgeon, and that therefore his opinion that appellant had achieved
a good surgical result represented the weight of medical evidence with regard to appellant’s
physical examination findings. Dr. Berman opined that Dr. Platto’s examination findings could
not be accepted and that his 59 percent impairment rating was incorrect. Accordingly, he found
that, under Table 16-3, page 511, appellant had a good result for knee replacement, a class 2
impairment; good result and position, stable and functional, with a default value of grade C.
This yielded 25 percent right lower extremity impairment based on a range under class 2
between 21 and 25 percent, and a net adjustment of zero. Dr. Berman further found that the date
of maximum medical improvement was the date of Dr. Mears’ last examination, February 14,
2012, “the point at which a condition is stabilized and is unlikely to change, improve or worsen
substantially in the next year with or without treatment. While symptoms and signs of the
condition may wax and wane over time, further overall recovery or deterioration is not
anticipated.”
By decision dated May 1, 2014, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the right lower extremity for the period
February 14 to April 14, 2012, for a total of 8.64 weeks of compensation. It noted that he had
previously been awarded 22 percent impairment for the right lower extremity under case
numbers xxxxxx686 and xxxxxx946.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The claimant has the burden of proving
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

8

Id.

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that the condition for which a schedule award is sought is causally related to his or her
employment.9
ANALYSIS
In the instant case, OWCP accepted the conditions of right knee sprain and right knee
osteoarthritis and authorized surgery for right knee replacement. Appellant’s treating physician,
Dr. Platto, rated 59 percent right lower extremity impairment pursuant to the sixth edition of the
A.M.A., Guides based on a class 4 postoperative rating for moderate-to-severe instability and/or
severe motion deficit under Table 16-3, page 511. This contrasted with the opinion of
Dr. Berman, OWCP’s medical adviser, who found that appellant had 25 percent impairment
based on a good result for knee replacement, a class 2 impairment pursuant to Table 16-3, page
511.
The Board notes that the A.M.A., Guides indicate that the diagnosis-based impairment
method is the preferred rating method for the lower extremities.10 Range of motion impairment
method is primarily used as a physical adjustment factor and is only used to determine actual
impairment values when it is not possible to otherwise define impairment.11 The A.M.A.,
Guides further state that, while range of motion will be used in some cases as an alternative
approach to rating impairment, it is not to be combined with the diagnosis-based impairment and
stands alone as an impairment rating.12 The A.M.A., Guides directs examiners to rate diagnosisbased impairments for the lower extremities pursuant to Chapter 16, which indicates at page 497,
section 16.2a that impairments are defined by class and grade. Where a claim has two significant
diagnoses, the examiner is instructed by the A.M.A., Guides to use the diagnosis with the highest
causally-related impairment rating for the impairment calculation. Pursuant to the above criteria,
OWCP’s medical adviser properly relied on the diagnosis-based method for rating appellant’s
right knee impairment based on a good result for knee replacement, a class 2 impairment; good
result and position, stable, and functional pursuant to Table 16-3, page 511.13
In accordance with Chapter 16, the examiner is instructed to utilize the net adjustment
formula outlined at pages section 16.3, pages 509-11 of the A.M.A., Guides,14 to obtain the
proper impairment rating.

9

Veronica Williams, 56 ECAB 367, 370 (2005).

10

A.M.A., Guides 497.

11

Id.

12

Id. at 500.

13

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).
14

A.M.A., Guides 521-22.

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Appellant’s treating orthopedic surgeon, Dr. Mears, reported on February 14, 2012 that
appellant could return to work as a mail carrier following his total knee replacement. He related
that appellant had minimal discomfort in his right knee, with essentially normal examination
findings and stable flexion from 1 to 100 degrees. Based upon Dr. Mears’ report, Dr. Berman
utilized Table 16-3, page 511 of the A.M.A., Guides, the Knee Regional Grid, and found that
appellant had a class 2 impairment for knee replacement, a class 2 impairment; good result and
position, stable and functional, with a default value of grade C. This produced 25 percent right
lower extremity impairment based on a range under class 2 between 21 and 25 percent, and a net
adjustment of zero. Based on the report from its medical adviser, OWCP determined that
appellant had 25 percent impairment of the right lower extremity, as he calculated this rating
based on the applicable protocols and tables of the sixth edition of the A.M.A., Guides. The
medical adviser explained that Dr. Mears’ physical examination findings should be accepted
because he was a renowned orthopedic surgeon and had performed appellant’s knee replacement
surgery. He noted that Dr. Platto had offered no explanation as to why his physical examination
findings of the right knee were so different from Dr. Mears’ normal findings, after appellant had
had undergone the total knee replacement surgery.
The Board finds that the December 19, 2013 impairment rating from OWCP’s medical
adviser, the only impairment rating rendered in conformance with the applicable protocols and
tables of the A.M.A., Guides, represented the weight of the medical evidence in this case.
Accordingly, as the record contains no other probative, rationalized medical opinion which
indicates that appellant has greater impairment based on his accepted right knee conditions,
OWCP properly granted him a schedule award for 25 percent right upper extremity impairment
in its May 1, 2014 decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to more than 25 percent award for the right
lower extremity, for which he received a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2014 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: June 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 21-0995
Issued: March 2, 2022

Case Submitted on the Record

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

JURISDICTION
On June 17, 2021 appellant filed a timely appeal from a December 21, 2020 nonmerit
decision and an April 15, 2021 merit decision and 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) whether
appellant has met his burden of proof to establish permanent impairment of a scheduled member
or function of the body, warranting a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 10, 1989 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 1989 he sustained a left knee injury when pulling an allpurpose container (APC) while in the performance of duty. He did not stop work but was granted
disability retirement on March 11, 1992. OWCP accepted that appellant sustained a sprain/strain
of the left knee and leg, a tear of the left lateral meniscus, and left corns/calluses. It authorized
arthroscopic surgery on the left knee, performed on January 23, 1990.3
On April 15, 2005 appellant filed a notice of recurrence of disability (Form CA-2a),
alleging that he experienced pain and weakness in his left knee commencing October 30, 2004,
causally related to the accepted May 10, 1989 employment injury.
By decision dated August 16, 2006, OWCP denied appellant’s recurrence of disability
claim, finding that the evidence of record was insufficient to establish that appellant sustained a
recurrence of disability commencing October 30, 2004 causally related to his work injury of
May 9, 1989.
On November 28, 2006 appellant appealed to the Board. 4 By decision dated June 7, 2007,
the Board affirmed the August 16, 2006 OWCP decision.
OWCP received additional evidence. Appellant subsequently submitted employing
establishment medical records dated March 4, 1977 through June 7, 1988 where he was treated for
several conditions including ankle, toe, right foot, and back pain. He was treated by Dr. Michael
Redlich, a Board-certified neurologist, on February 25, 1992 for cervical and thoracic disc
syndrome. Likewise, from March 12, 1993 through August 11, 2000, Dr. A. Janati, a Boardcertified neurologist, treated appellant for chronic neck and left lower extremity pain. He
diagnosed degenerative arthritis of the cervical and thoracic spine, which was related to trauma
while in the military in 1978. Appellant attended physical therapy from July 17, 1978 through
March 16, 2000. He also submitted a position description for a personnel clerk.
Dr. Azer treated appellant from October 20, 1989 through September 10, 1991 for
callouses on his left foot and left knee pain. OWCP received diagnostic studies from March 3,
1992 through December 21, 2017.

2

Docket No. 07-406 (issued June 7, 2007).

3

On January 23, 1990 Dr. Samir N. Azer, a Board-certified orthopedist, performed arthroscopy of the left knee,
removed loose chondral fracture, shaved crater, and diagnosed loose chondral body of the left knee with greater defect
of the left medial femoral condyle weight bearing surface.
4

Supra note 2.

2

On January 21, 2017 Dr. Ferdinand M. Amante, Jr., an orthopedic surgeon, reevaluated
appellant for a painful left knee. Appellant reported sustaining a proximal left leg fracture at 14
years old and underwent a left knee meniscectomy in 1990. He diagnosed osteoarthritis of the left
knee and left leg length discrepancy which could be an aggravating factor for osteoarthritis.
In a statement dated September 13, 2018, appellant provided a history of his employment
with the Federal Government. He sought to expand the acceptance of his claim to include
aggravated underlying preexisting medical conditions. In a statement dated December 13, 2018,
appellant again requested expansion of his claim.
In a medical certificate and report dated November 20, 2018, Dr. Emiliano B. Tablante, a
Board-certified orthopedist, noted a history of the May 9, 1989 work injury and provided a medical
history from May 1967 through January 2, 2018. He noted that appellant underwent a posterior
decompression L3-4 and L4-5 on January 2, 2018. Dr. Tablante noted findings on examination of
decreased stride length, tight on trapezius, paracervical and lats doris, muscle spasm o f lower
trapezius, intermittent localized pain of the knee and patella, muscle spasm with dull pain in the
feet and hand, and cervical pain with radiculopathy. He diagnosed left ganglion cyst of first
metatarsal head, focal right synovitis, posterior calcaneal spur, left os peroneum, right pes planus,
overpronation of the foot, osteoarthritis changes of the knees, left patella osteophyte, right knee
varus, status post chronic low back pain with radiculopathy, levoscoliosis, compression deformity
of the thoracic spine, thoracic spondylosis, cervical spondylosis with radiculopathy at C4-5, C5-6,
C6-7, mild anterior wedge compression deformities at C5-6, and bilateral carpal tunnel syndrome.
Dr. Tablante opined within a reasonable degree of medical certainty that the above medical
conditions were consequential to the accepted left knee and leg sprain/strain, left lateral meniscus
tear, and left calluses. He recommended further diagnostic work up including epidural cervical
injections and diagnostic arthroscopy of the left knee.
On May 30, 2019 appellant again requested his claim be reopened and expanded to include
additional conditions.
On September 28, 2020 appellant requested reconsideration of the August 16, 2006 OWCP
decision denying his recurrence claim. He alleged clear evidence of error in the last OWCP
decision based on OWCP’s failure to develop his subsequent injury claims after the January 25,
1990 OWCP-authorize arthroscopic left knee surgery revealed loose chondral bodies and defect
of the medial femoral condyle. Appellant also requested a schedule award for the left lower
extremity, and expansion of the acceptance of his claim.
On September 28, 2020 OWCP received an electromyogram (EMG) and nerve conduction
velocity (NCV) study dated September 18, 2003 that revealed multiple peripheral neuropathy,
sensorimotor affecting the lower more than upper extremities without ruling out bilateral chronic
cervical C5-6 radiculopathies and bilateral lumbar L5 radiculopathies. X-rays of the feet dated
October 3, 2017 revealed posterior calcaneal spurs and os peroneum of the left foot. An x -ray of
the right hip dated November 24, 2019 revealed no discrete fracture or dislocation. An x-ray of
both knees dated March 10, 2020 revealed mild degenerative osteoarthritic changes and bilateral
patellar enthresophytes.

3

On October 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated October 20, 2020, OWCP requested that appellant submit an
impairment evaluation addressing whether he had reached MMI and provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days to submit additional medical
evidence in support of his schedule award claim.
By decision dated December 21, 2020, OWCP denied appellant’s reconsideration request
of the August 16, 2006 recurrence decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
By decision dated April 15, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely, it undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.11
5

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

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 (September 2020).

4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures 16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including a merit decision of the Board.17 The most recent merit decision on the recurrence issue
was the Board’s June 7, 2007 decision, which affirmed the denial of appellant’s claim for a
recurrence of disability on October 30, 2004. As OWCP received his request for reconsideration
on September 28, 2020, more than one year after the June 7, 2007 decision, the Board finds that it
was untimely filed. Because appellant’s request was untimely filed, he must demonstrate clear
evidence of error on the part of OWCP in its August 16, 2006 decision.

12

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (September 2020).

14

U.C., Docket No. 19-1753 (issued June 10, 2020).

15

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

20 C.F.R. § 10.607(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a. (September 2020); R.G., Docket No. 21-0540 (issued November 9, 2021); B.P., Docket No. 20-0178
(issued August 23, 2021); Debra McDavid, 57 ECAB 149 (2005).

5

Appellant submitted employing establishment medical records dated March 4, 1977
through June 7, 1988; treatment notes from Dr. Redlich dated February 25, 1992; reports from
Dr. Janati dated March 12, 1993 through August 11, 2000; physical therapy treatment notes from
July 17, 1978 through March 16, 2000; and reports from Dr. Azer dated October 20, 1989 through
September 10, 1991. These reports are not relevant to the recurrence claim as they predate the
alleged date of the recurrence and do not raise a substantial question as to whether the August 16,
2006 decision was in error. 18
Appellant submitted diagnostic studies dated March 3, 1992 through March 10, 2020
including x-rays, MRI scans, and an EMG/NCV study. Diagnostic studies, standing alone, lack
probative value on the issue of causal relationship. 19 Therefore, none of this evidence manifests
on its face that OWCP committed an error in denying appellant’s claim for recurrence of disability
commencing October 30, 2004. Thus, the evidence is insufficient to demonstrate clear evidence
of error.20
Appellant also submitted a January 21, 2017 report from Dr. Amante who diagnosed
osteoarthritis of the left knee and left leg length discrepancy, which could be an aggravating factor
for osteoarthritis. Similarly, in a medical certif icate and report dated November 20, 2018,
Dr. Tablante provided additional nonaccepted diagnoses and opined within a reasonable degree of
medical certainty the mentioned diagnoses were consequential to the accepted left knee and leg
sprain/strain, left lateral meniscus tear, and left calluses. However, these reports do not address
the claimed recurrence of disability commencing October 30, 2004. Thus, this evidence does not
raise a substantial question as to the correctness of OWCP’s August 16, 2006 merit decision. 21
As appellant has not raised an argument or submitted any evidence that manifests on its
face that OWCP committed an error in denying his recurrence claim, the Board finds that his
untimely request for reconsideration failed to demonstrate clear evidence of error. 22
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA, 23 and its implementing federal regulations,24 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
18

M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).

19

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
20

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

21

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

22

Id.

23

5 U.S.C. § 8107.

24

20 C.F.R. § 10.404.

6

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 25 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 26
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 27 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.28 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a d iscussion of how the
impairment rating was calculated. 29 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.30
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 31 OWCP procedures, however,
further provide that if a claimant does not provide an impairment evaluation from his or her
physician when requested, and there is an indication of permanent impairment in the medical
evidence of file, the claims examiner (CE) should refer the claimant for a second opinion
evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion
examination to determine if the evidence in the file is sufficient for the DMA to provide an
impairment rating. If the case is referred for a second opinion, the report should contain the
information described in 6a above.32 If it does not contain this information, clarification with the
second opinion should be sought. 33

25

Id. at § 10.404(a).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
27

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

28

Supra note 8 at Chapter 2.808.5 (March 2017).

29

Id. at Chapter 2.808.6(a) (March 2017).

30

Id. at Chapter 2.808.6(c).

31

Id.

32

Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was
calculated. Supra note 8 at Chapter 2.808.6a.
33

Supra note 8 at Chapter 2.808.6d (March 2017).

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted the claim for sprain/strain of the left knee and leg, a tear of the left lateral
meniscus, left corns/calluses, and aggravation of other spondylosis with radiculopathy,
lumbosacral region. On October 9, 2020 appellant filed a claim for a schedule award. Under
FECA,34 where a claimant is seeking a schedule award, he or she must submit a medical report
that “must contain accurate measurements of the function of the organ or member, in accordance
with the A.M.A., Guides.”35 The burden is on the claimant to provide this evidence. 36
In support of his claim, appellant submitted a November 20, 2018 report by Dr. Tablante.
However, the Board finds that it is of diminished probative value because he neither utilized the
sixth edition of the A.M.A., Guides, nor found that appellant reached MMI. Therefore,
Dr. Tablante’s report is insufficient to establish permanent impairment of a scheduled member or
function of the body causally related to appellant’s accepted employment condition. 37
The remaining medical evidence submitted by appellant is also insufficient to establish
permanent impairment of a scheduled member or function of the body causally related to
appellant’s accepted employment condition as it also does not conform with the protocols of the
A.M.A., Guides.
Accordingly, the Board finds that appellant has not met his burden of proof.
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 permanent impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. The Board
further finds that appellant has not met his burden of proof to establish permanen t impairment of
a scheduled member or function of the body, warranting a schedule award.

34

Supra note 1.

35

20 C.F.R. § 10.333.

36

Id. at § 10.115.

37

See M.G., Docket No. 19-0823 (issued September 17, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 and December 21, 2020 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1893
Issued: February 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 14, 2015 appellant, through counsel, filed a timely appeal from an
August 3, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his pulmonary
condition was causally related to his employment.
FACTUAL HISTORY
On January 24, 2014 appellant, then a 56-year-old unit operator, filed an occupational
disease claim (Form CA-2) alleging that he developed occupational pneumoconiosis and
restrictive ventilatory defect as a result of his employment. He first became aware of his
condition and realized it resulted from his employment on December 10, 2013. Appellant
1

5 U.S.C. § 8101 et seq.

explained that he first learned that he had an occupational lung disease when he reviewed the
chest x-ray report of Dr. Glen Baker, a Board-certified pulmonary specialist and certified
B-reader. He also noted that when he learned he had the disease he notified the employing
establishment by letter dated December 10, 2013. Appellant indicated that he sometimes wore
paper masks at work.
By letter dated February 19, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he provide additional factual evidence,
including responses to a questionnaire, to describe what employment factors he believed
contributed to his alleged injury and additional medical evidence to establish that he sustained a
diagnosed condition causally related to his employment. A similar letter was sent to the
employing establishment requesting information about appellant’s employment duties.
On February 24, 2014 OWCP received the employing establishment’s response to the
development letter. It provided a December 10, 2013 letter from appellant advising the
employing establishment that he would be filing a claim for federal workers’ compensation.
Appellant noted that his physician informed him that he had an occupational lung disease related
to his employment. The employing establishment also provided a February 18, 2014 letter it sent
to appellant advising him to submit a completed Tennessee Valley Authority (TVA) 9179 form.
The employing establishment submitted a list of appellant’s duties and an assessment
performed by an industrial hygienist regarding the potential for adverse health consequences
resulting from appellant’s employment. Appellant worked as a truck driver from May 1, 1978 to
November 3, 1989; a fossil trainee from March 19, 1990 to December 28, 1992; an assistant unit
operator from December 28, 1992 to November 20, 2000 and February 24, 2003 to October 14,
2005; and a unit operator from November 20, 2000 to February 24, 2003 and October 14, 2005
to October 4, 2013. The employing establishment provided position descriptions for appellant’s
various positions and pulmonary examination records by the employing establishment dated
May 27, 1978 to August 24, 2012.
In a February 12, 2014 industrial assessment report, Mike Bradford, an industrial
hygienist and health and safety consultant for the employing establishment, noted that while
specific data of exposures to coal dust where appellant worked were unavailable in the
employing establishment’s data source he was able to examine the generic data for exposures to
respirable coal dust and total dust between 1978 and 2013. He stated that the data consistently
demonstrated that background exposure levels were below current permissible exposure limits
(PEL). Mr. Bradford explained that as a unit operator, appellant was not exposed to coal dust
because control room air was filtered. He reported that appellant could not have been exposed to
asbestos from electrical boards, windings, and insulations because asbestos only became airborne
by drilling, crushing, or pulverizing. Mr. Bradford noted that truck drivers, assistant unit
operators, and unit operators did not remove insulation in the performance of their job duties,
and accordingly, appellant could not have been exposed to airborne asbestos at or above the
PEL. He related that an asbestos survey of the employing establishment was completed in the
summer of 2011 and revealed that background levels of asbestos were below Occupational
Safety and Health Administration (OSHA) and Environmental Protection Agency (EPA)
guidelines for clean air. Mr. Bradford opined that by smoking one pack of cigarettes per day for
five years, appellant experienced a self-imposed exposure to more than coal dust, asbestos, or
any other contaminant. He pointed out that according to a 2004 report by the Department of
2

Health and Human Services, 90 percent of all deaths from chronic obstructive pulmonary
diseases were attributable to cigarette smoking.
Mr. Bradford reported that measured background exposures to respirable dust and
asbestos at the employing establishment were well under the applicable OSHA/EPA limits. He
noted that the air was extensively monitored at the employing establishment and that personal
protective equipment was provided to ensure that employee exposure stayed within acceptable
OSHA/EPA limits. Mr. Bradford noted that appellant’s job duties as a truck driver, assistant unit
operator, and unit operator did not expose him above applicable air quality limits. He concluded
that because exposure to respirable dust at work was consistently under the applicable OSHA
limit, appellant’s respiratory illness was mostly likely caused by appellant’s five-year smoking
history.
In a letter dated February 24, 2014, appellant responded to OWCP’s development letter.
He stated that he began work for the employing establishment as a truck driver in 1978.
Appellant related that he was exposed to gypsum dust when he dumped dust, rock dust from the
roads, and coal dust from the coal stock pile. He reported that in March 1990 he began work as
an assistant unit operator and was exposed to coal dust, fly ash, flue gas, arsenic, and asbestos.
Appellant noted that he could see the dust on his skin, clothing, and on all of the equipment. He
indicated that the asbestos came from the insulation that would deteriorate and fall from the
pipes. Appellant related that he then worked in the control room for six years. He was exposed
to dust from air moving through the control room. Appellant then worked in coal handling for
eight years. He was exposed to coal dust where he worked in the facility that handled the coal.
Appellant was exposed to asbestos that would come from the older electrical boards, windings,
shields, and insulation. He worked eight hours a day, five days a week. Appellant noted that his
last day of work was on October 4, 2013.
Appellant further stated that he worked for Cowden from 1977 to 1978 in the shipping
and receiving department, for Emerson Electric from 1976 to 1977, and for Wettereau in 1989
for one month. He had no exposure to dust other than some cloth dust during this employment.
Appellant also worked for Brewer Machine from 1986 to 1988 performing welding and
fabrication. He had exposure to welding fumes, smoke, and some metal dust. Appellant
indicated that he had noticed some shortness of breath for the past 10 years that had gradually
worsened over time and had occasional coughing and wheezing. He reported that he smoked
cigarettes at the rate of one pack per day for 5 years, but he quit smoking 32 years ago.
Appellant noted that he was including a medical report by Dr. Baker.
On January 9, 2014 appellant was evaluated by Dr. Baker for a possible occupationalinduced lung disease secondary to his occupation. He noted that appellant had worked for the
employing establishment for 23½ years as an assistant unit operator and as a unit operator.
Dr. Baker reported that appellant was exposed to coal dust, ash, flue gas, and asbestos that were
present in many areas in which he worked. He related that appellant also worked in construction
for 7½ years, in a machine shop for 2 years, and other occupations for short periods of time.
Dr. Baker noted that appellant last worked for the employing establishment on October 4, 2013.
He pointed out that appellant smoked about 5 years at the rate of one pack per day but had quit
32 years ago. Dr. Baker reported that appellant had been short of breath primarily with dyspnea
for the past 10 years and had an occasional cough and wheezing. He indicated that appellant’s
symptoms were aggravated by exertion, cold air, and exposure to various dust, odors, and fumes.
3

Dr. Baker reviewed appellant’s history, including diagnostic studies. He related that a
chest x-ray dated November 12, 2013 showed changes consistent with occupational
pneumoconiosis and a January 4, 2014 pulmonary function studies demonstrated a mild
restrictive ventilatory defect with a mild-to-moderate improvement following bronchodilators.
Dr. Baker diagnosed occupational pneumoconiosis, category 2/1, with history of exposure to
both coal dust and asbestos, and mild restrictive ventilatory defect based on pulmonary function
testing. He reported that appellant had 10 percent impairment according to the American
Medical Association, Guides to the Evaluation of Permanent Impairment. Dr. Baker opined that
appellant had a long history of exposure to coal dust, flue gas, ash, and asbestos for
approximately 23½ years. He reported that appellant had changes consistent with occupational
pneumoconiosis which would be due to his exposure to asbestos, and to some extent, his coal
dust exposure. Dr. Baker concluded that appellant’s mild restrictive defect was due to 23½ years
of exposure to asbestos and coal dust as well as other fumes and dust that he was exposed to in
his occupation. Dr. Baker provided FVC & FEV2 testing dated January 4, 2014, which revealed
mild restrictive ventilator defect on both pre and post with mild improvement following
bronchodilators.
On June 16, 2014 OWCP prepared a statement of accepted facts in which it accepted that
appellant was exposed to rock dust, gypsum dust, coal dust, ash, flue gas, and asbestosis during
his 31 years of work at the employing establishment.
OWCP referred appellant’s claim to Dr. Harold Dale Haller, Jr., Board-certified in
pulmonary disease and a second-opinion examiner, along with a statement of accepted facts, to
determine the relationship between his claimed condition and factors of his employment.
In a July 22, 2014 report, Dr. Haller reviewed the statement of accepted facts and
Dr. Baker’s report. He described appellant’s employment history and exposure to various
elements. Dr. Haller related appellant’s complaints of respiratory problems for 10 years,
including shortness of breath. He noted that before appellant began work at the employing
establishment he smoked one pack or less of cigarettes per day for less than five years before
quitting. Dr. Haller reviewed appellant’s medical history and conducted an examination.
Inspection of the nose and sinuses revealed no mucus present and normal septum. Dr. Haller
reported that bilateral frontal sinuses had no tenderness. Examination of the chest and lungs
demonstrated no use of accessory muscles in breathing and normal and clear breath sounds.
Dr. Haller noted that appellant had dyspnea. He indicated that he was not convinced that
appellant had any lung disease. Dr. Haller explained that lung function testing, with some
questionable effort, revealed at most minimal restriction and with 100 percent normal diffusion,
would suggest restrictive changes related to thoracic cavity, not pulmonary parenchyma. He
believed that Dr. Baker based his diagnosis of occupational pneumoconiosis on a chest x-ray and
explained that, although he was not a B-reader, he did not think the x-ray suggested
pneumoconiosis. Dr. Haller recommended a computerized tomography (CT) chest examination.
He reported that once the CT was done and the examination forwarded to him he would gladly
addend his report. Regarding appellant’s dyspnea, Dr. Haller opined that appellant had many
possible explanations including obesity and deconditioning, heart disease, and pulmonary
hypertension.
In a September 19, 2014 addendum report, Dr. Haller related that he reviewed appellant’s
August 27, 2014 chest CT scan and noted that the examination revealed no intrinsic interstitial
4

lung disease or bronchiectasis, no obvious air trapping, and no significant abnormalities in the
chest. He also reported sensitivity limited due to poor expiratory effort and diffuse hepatic
steatosis. Dr. Haller explained that the CT scan confirmed that there was no evidence of
pneumoconiosis or other interstitial lung disease. He opined that the etiology of appellant’s
dyspnea was likely that as described in his previous report.
In a decision dated October 9, 2014, OWCP denied appellant’s claim. It accepted that he
had been exposed to hazardous materials at work, including asbestos, but denied his claim
finding that the medical evidence was insufficient to show that he sustained a medical condition
causally related to the exposure at work. OWCP determined that the weight of the medical
evidence rested with the opinion of Dr. Haller, the second-opinion physician.
On October 22, 2014 OWCP received appellant’s request, through counsel, for a hearing
before an OWCP hearing representative. On May 18, 2015 a telephone hearing was held.
Appellant’s counsel was present. Appellant stated that he worked for the employing
establishment as a truck driver from 1978 to 1985 and was exposed to dust from the roads,
gypsum, and coal dust. He worked eight hours a day, five days a week, and did not wear a mask.
Appellant next worked as an assistant unit operator for approximately 12 years. He asserted that
he was exposed to dust throughout the powerhouse, coal feeders, ash hoppers, and dust hoppers
because he was constantly cleaning them. Appellant noted that he was also exposed to coal dust
in the air due to the high velocity of air that circulated throughout the units. He stated that he
was also exposed to asbestos on several occasions from piping and components throughout the
plant. Appellant worked rotating shifts of 8, 12, and 16 hours. He noted that he wore paper
masks on occasion. Appellant then worked as a unit operator for six years. He alleged that he
was still exposed to dust in the control rooms due to the large volume of air that was being
circulated in the control rooms. Appellant worked four 10-hour shifts a week along with some
overtime. He indicated that he retired from the employing establishment on October 4, 2013.
Appellant stated that he smoked approximately 1 pack of cigarettes a day for approximately 5
years but he quit over 32 years ago. He explained that he first noticed a problem with his
breathing approximately 10 years ago and that his breathing gradually worsened.
Appellant’s counsel related that appellant was exposed to coal dust, fly ash, flue gas,
asbestos, and some arsenic in his employment with the employing establishment for 30 plus
years. He noted that the industrial assessment report from Mr. Bradford verified that there was
exposure in appellant’s workplace regardless of the fact that the exposure was below permissible
exposure limits. Counsel also pointed out that Mr. Bradford admitted that he did not evaluate
specific dust samples from appellant. He reported that there were numerous employees at the
employing establishment who received workers’ compensation for occupational lung diseases
and provided their names. Counsel stated that Dr. Baker was a Board-certified pulmonary
specialist who was certified by the National Institute of Occupational Safety and Health
(NIOSH) and was a B-reader who was qualified to read chest x-rays for purposes of determining
the existence of occupational lung diseases. He alleged that Dr. Baker was better qualified than
most physicians to interpret x-rays for purposes of determining the existence of occupational
lung diseases. Counsel asserted that Dr. Haller’s report should not carry the weight of medical
evidence since he was not a B-reader and could not accurately read appellant’s chest x-rays. He
also noted that, while Dr. Haller’s report relied on an August 27, 2014 CT scan report, the report
was not available. Counsel further alleged that, if Dr. Baker’s report did not carry the weight of
medical opinion, it at least created a conflict in medical opinion regarding the cause of
5

appellant’s pulmonary condition. He stated that he would include a report from Dr. Vuskovich
regarding the use of CT scans in these types of cases.
In a May 6, 2008 report, Dr. Matthew A. Vuskovich, Board-certified in preventive
medicine, explained that as a “B” reader he did not interpret CT scan images for the appearances
of coal workers’ pneumoconiosis. He reported that CT scans effectively “wash out” the
pneumoconiosis lesions because they visualize a thin slice of the tissue. Accordingly, the “false
negative” rate for CT scans was prohibitively high. Dr. Vuskovich reported that CT imaging
should not be used to establish a positive pneumoconiosis diagnosis and to accurately determine
the severity of the disease chest CT scan.
On June 19, 2015 the employing establishment provided comments to the hearing
transcript. It alleged that there was no evidence to demonstrate that appellant was ever exposed
to coal dust or any other substance in the air at a level in excess of the OSHA permissible
exposure limit. The employing establishment noted that the assessment report by Mr. Bradford
confirmed that appellant was never exposed to respirable coal dust or asbestos at a level that
exceeded permissible exposure limits. It noted that in the case, M.W.,2 the Board determined that
exposures below the PEL could not be deemed a cause of a diagnosed condition. The employing
establishment related that appellant had no exposure when working as a unit operator in the
control rooms as the air was filtered, and half and full-face respirators for protection, not simply
paper masks. It explained that paper masks were provided as a courtesy but only to individuals
who had no chance of being exposed above OSHA’s PEL limits. In addition, the employing
establishment disagreed that Dr. Baker’s reliance on a chest x-ray for a diagnosis of
pneumoconiosis was proper. It explained that according to the NIOSH, chest radiograph
findings alone were insufficient to confirm the diagnosis of pneumoconiosis. The employing
establishment asserted that CT scans, as Dr. Haller requested, should be considered in addition to
a chest x-ray.
In a letter dated July 7, 2015, appellant’s counsel again contended that Mr. Bradford did
not test the actual dust samples to which appellant was exposed. He further reported that even
though exposure levels were below PEL, there was no safe level of exposure to asbestos
according to the Department of Labor’s “Safety and Health Topics, Asbestos” page. Counsel
alleged that the fact that the studies provided by the employing establishment showed the
presence of asbestos, this indicated that exposure was possibly and probably harmful. He also
distinguished the facts of appellant’s case from M.W. Counsel disagreed that the case held that
exposure levels below PEL could not be deemed a cause of a diagnosed condition. Counsel
again reiterated Dr. Baker’s qualifications and alleged that his report should bear the weight of
medical evidence.
By decision dated August 3, 2015, an OWCP hearing representative denied modification
of the October 9, 2014 decision. She found that appellant had not submitted the necessary
medical evidence to establish a diagnosed condition causally related to the accepted employment
factors.

2

57 ECAB 710 (2006).

6

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.8 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10

3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
9

20 C.F.R. § 10.321.

10

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

7

ANALYSIS
Appellant alleges that he sustained a pulmonary condition as a result of exposure to coal
dust, gypsum, and asbestos at his employment. OWCP accepted that he had been exposed to
rock dust, gypsum dust, coal dust, ash, flue gas, and asbestosis in his federal employment.
However, it denied appellant’s claim finding insufficient medical evidence to establish that he
sustained a diagnosed condition causally related to his employment duties. OWCP determined
that the weight of the medical evidence regarding this matter rested with the opinion of
Dr. Haller, an OWCP referral physician, who found that appellant had not sustained occupational
pneumoconiosis as a result of his employment.
The Board finds that this case is not in posture for decision regarding whether appellant
has an employment-related pulmonary condition due to a conflict in medical opinion evidence.
In support of his claim, appellant submitted a January 9, 2014 report by Dr. Baker. He
related that appellant had worked for the employing establishment for 23½ years and was
exposed to coal dust, ash, flue gas, and asbestos in many areas that he worked in. Dr. Baker
reported that appellant had been short of breath primarily with dyspnea for the past 10 years and
had an occasional cough and wheezing. He indicated that appellant had lung disease secondary
to his occupation. Dr. Baker reviewed appellant’s history and conducted an examination. He
diagnosed occupational pneumoconiosis, category 2/1, with history of exposure to both coal dust
and asbestos, and mild restrictive ventilatory defect based on pulmonary function testing.
Dr. Baker reported that appellant had changes consistent with occupational pneumoconiosis
which would be due to his exposure to asbestos, and to some extent, his coal dust exposure. He
concluded that appellant’s mild restrictive defect was due to 23½ years of exposure to asbestos
and coal dust as well as other fumes and dust that he was exposed to in his occupation.
In contrast to Dr. Baker’s opinion, however, Dr. Haller, the OWCP referral physician,
opined in reports dated July 22 and September 19, 2014 that appellant did not have occupational
pneumoconiosis as a result of his employment. He reviewed appellant’s history and conducted
an examination. Dr. Haller noted that appellant had dyspnea. He was not convinced that
appellant had any lung disease. Dr. Haller explained that lung function testing, with some
questionable effort, revealed at most minimal restriction and, with 100 percent normal diffusion,
which would suggest restrictive changes in the thoracic cavity not pulmonary parenchyma. In a
September 19, 2014 report, he explained that a CT scan confirmed that there was no evidence of
pneumoconiosis or other interstitial lung disease. Dr. Haller opined that appellant had many
possible explanations for his dyspnea, including obesity and deconditioning, heart disease, and
pulmonary hypertension.
As previously stated, when there are opposing medical reports of virtually equal weight
and rationale, the case must be referred to a referee physician to resolve the conflict in the
medical evidence.11
The Board found in a factually similar case, R.H.12 That a conflict existed in the medical
opinion between Dr. Baker, a certified B-reader and Board-certified pulmonologist, who
11

Supra note 8.

12

Docket No. 14-0452 (issued June 18, 2014).

8

diagnosed occupational pneumoconiosis based upon x-ray examination, and Dr. Haller, a Boardcertified pulmonologist, who found no evidence of pneumoconiosis, or interstitial lung disease
based upon CT evaluation.
In this case, the Board finds that there is a conflict of opinion between Dr. Baker,
appellant’s treating physician, and Dr. Haller, the OWCP referral physician, with respect to
whether appellant has occupational pneumoconiosis as a result of his employment.13
Furthermore, the Board notes that while Dr. Haller mentioned reviewing an August 27, 2012 CT
scan the record does not contain this report. On remand, OWCP should refer appellant’s case
and the complete case record, including the August 27, 2012 CT scan report, to an impartial
medical examiner, who is an appropriate B-reader, for resolution of the conflict in accordance
with section 8123(a) of FECA and the implementing regulations.14 After such further
development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: February 24, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
13

See T.R., Docket No. 14-1919 (issued May 7, 2015).

14

Supra note 12.

9