United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Topeka, KS, Employer 

__________________________________________ 

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Docket No. 15-520 

Issued: May 19, 2015 

Appearances: Case Submitted on the Record

Bruce A. Brumley, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On January 8, 2015 appellant, through counsel, filed a timely appeal from a July 17, 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 to review the merits of this case. 

ISSUE 

The issue is whether appellant has established that OWCP’s September 14, 2006 loss of 

wage-earning capacity (LWEC) determination should be modified. 

On appeal, counsel contends that the rationalized medical opinion of Dr. Peter V. Bieri, 

an otolaryngologist, is sufficient to establish that appellant’s accepted medical condition had 

materially worsened and that she was unable to work. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board.2 In a February 20, 2013 decision, the 

Board set aside a September 14, 2006 LWEC determination and remanded the case for further 

development of the medical evidence. The Board found that the medical opinion of 

Dr. Joseph W. Huston, a Board-certified orthopedic surgeon and OWCP referral physician, was 

vague and speculative as to whether appellant had any residuals resulting from her accepted 

employment injuries. The Board instructed OWCP to obtain a supplemental report from 

Dr. Huston. The relevant facts are set forth below. 

On May 17, 2004 appellant, then a 33-year-old packer/warehouseman, filed an 

occupational disease claim alleging that she sustained injuries to her cervical and thoracic spines 

due to repetitive, overhead lifting at work. OWCP accepted the claim for aggravation of cervical 

and thoracic sprains/strains bilaterally. 

In a September 14, 2006 decision, OWCP determined that a modified 

packer/warehouseman position fairly and reasonably represented appellant’s wage-earning 

capacity with no wage loss. 

On September 14, 2010 appellant filed a recurrence and stopped work on that day 

alleging that her accepted injuries had worsened. OWCP interpreted her claim as a request to 

modify the September 14, 2006 LWEC determination. 

In a December 7, 2010 decision, OWCP denied modification of the September 14, 2006 

LWEC decision. It found that appellant had not submitted any evidence to establish that the 

original LWEC determination was erroneous, that she was otherwise retrained or vocationally 

rehabilitated, or that there was a material change in her accepted medical conditions. 

In an August 2, 2011 medical report, Dr. Huston provided a history of the accepted 

employment injuries and provided physical examination findings. He diagnosed chronic 

myofascial pain syndrome in the cervical and thoracic regions. Dr. Huston opined that the 

diagnosed conditions preexisted appellant’s employment injury, but were no doubt aggravated by 

her repetitive lifting work activities. He stated that her history of complaints suggested that there 

might be some permanent aggravation. Dr. Huston stated, however, that there was no concrete 

evidence of this, such as a magnetic resonance imaging (MRI) scan or nerve testing. 

On March 4, 2013 pursuant to the Board’s remand instructions, OWCP requested that 

Dr. Huston provide a supplemental report. It advised him that he was authorized to perform 

further noninvasive testing or consultation, if necessary. OWCP noted Dr. Huston’s August 2, 

2011 findings and specifically requested that he explain how the accepted employment condition 

was causally related to his diagnosed condition and whether the diagnosed condition from 

September 14, 2010 to the present represented a worsening of the accepted condition. It also 

requested that he clarify and provide an opinion as to whether appellant’s work factors did in fact 

result in a permanent aggravation of any condition. OWCP stated that Dr. Huston could perform 

an MRI scan and nerve testing if needed to provide a rationalized opinion. 

 2

 Docket No. 12-1594 (issued February 20, 2013). 
3

In an April 24, 2013 letter, Dr. Huston reviewed his prior August 2, 2011 report and the 

statement of accepted facts. He noted appellant’s job as a packer and warehouse worker and 

stated that when he last saw her on August 2, 2011 she was no longer working. Dr. Huston 

stated that he had no first-hand information about her present status since that time. At his last 

evaluation, he diagnosed chronic myofascial pain syndrome involving the cervical and thoracic 

regions and found that appellant’s physical problems were no doubt aggravated by her repetitive 

lifting work activities and that these activities possibly caused permanent aggravation. 

Dr. Huston also previously found no concrete physical evidence to show a permanent physical 

worsening of her problem. The need for ongoing treatment was due to the underlying chronic 

and preexisting condition. Dr. Huston reviewed the records of Dr. Mark S. Newth, a Boardcertified osteopath, which indicated that he had been seeing appellant for these same problems 

since 1999 and that he had given her many manipulations for back pain, which included the 

neck, upper back, and interscapular areas. Dr. Newth’s June 16, 2003 note indicated a diagnosis 

of somatic dysfunction in the cervical, thoracic, and lumbar areas. Dr. Huston noted that a 

July 13, 2010 electromyogram/nerve conduction study (EMG/NCS) of the bilateral upper 

extremities was normal. 

Regarding OWCP’s first query, Dr. Huston related that it was very difficult to state 

definitively whether the activities at work caused any worsening of appellant’s preexisting 

problems. He was sure that the work activities aggravated the symptoms of the underlying 

condition, but he had no concrete evidence to know that the underlying muscle damage was 

made worse. Dr. Huston stated that certainly the symptoms appellant had in her position at the 

employing establishment apparently caused her to stop work. They were not initially caused by 

this job and were present for several years before she quit work. In response to OWCP’s second 

query, Dr. Huston stated that he could not be sure or definite that there was permanent 

aggravation of appellant’s preexisting problem which she had been treating for several years. 

In a May 17, 2013 decision, OWCP denied modification of the December 7, 2010 

decision. It found that the evidence submitted did not establish an error in the original LWEC 

determination, that appellant had been vocationally rehabilitated, or a worsening of her accepted 

condition such that she could no longer work. 

By letter dated May 7, 2014, appellant, through her attorney, requested reconsideration 

and submitted medical evidence. In a May 5, 2014 report, Dr. Bieri reviewed the medical 

record. He agreed with the finding of Dr. Sushmita Veloor, a Board-certified physiatrist, that 

appellant’s employment-related chronic cervical and thoracic strain had worsened to include 

myofascial pain syndrome and that her myofascial symptoms were related to the accepted 

condition. Dr. Bieri advised that medical objective findings supported a material worsening of 

the accepted condition. On examination, he found back spasms which could be produced upon 

palpation. Dr. Bieri stated that appellant could not artificially produce back spasm. Based on his 

review of the records and her history, Dr. Bieri advised that these spasms increased in nature 

resulting in a permanent worsening condition. He stated that the chronicity was the rationality 

for permanency. Dr. Bieri noted that Dr. Veloor’s treatment was consistent with appellant’s 

accepted condition with provision of trigger point treatments to the affected areas. He related 

that the trigger points could also be an example of objective findings to support his opinion that 

the accepted condition worsened in the fall of 2010. Dr. Bieri agreed with Dr. Veloor’s 

October 23, 2010 restrictions, which included pulling and pushing at a maximum of 10 pounds, 
4

and no reaching based on appellant’s back spasms and related pain in the thoracic and cervical 

regions. He also agreed with his finding that appellant should be allowed to lay down every hour 

as needed for at least 10 minutes and that she could not lift at all above the shoulder. Dr. Bieri 

related that she was only able to perform part-time work, no more than four hours a day. As 

appellant was not capable of performing full-time work, it was very unlikely that she would be 

able to perform substantial and gainful work. 

Dr. Bieri stated that her increased restrictions were established by objective findings of 

back spasms and trigger points, and they were permanent and directly related to her accepted 

condition. He believed that the chronicity of her back spasms and trigger points, and increased 

restrictions and pain were a permanent worsening and recurrence of the accepted condition 

dating back to the fall of 2010. Dr. Bieri noted that, while appellant may need palliative care, 

she had reached maximum medical improvement. He related that back spasms frequently 

developed from chronic strains of the cervical and thoracic regions and it was medically 

reasonable to expect this progression of the accepted condition. It was also reasonable to expect 

the development of myofascial syndrome from the accepted condition given the chronic nature 

of this injury. Dr. Bieri advised that the chronic nature of the accepted condition resulted in 

increased pain, back spasms, and trigger points. This chronicity was permanent and a material 

change in the accepted condition. 

In a July 17, 2014 decision, OWCP denied modification of the September 14, 2006 

LWEC decision. It found that appellant met none of the criteria for modification. 

LEGAL PRECEDENT 

A wage-earning capacity decision is a determination that a specific amount of earnings, 

either actual earnings or earnings from a selected position, represents a claimant’s ability to earn 

wages. Compensation payments are based on the wage-earning capacity determination and it 

remains undisturbed until properly modified.3

OWCP procedures at Chapter 2.1501 contain provisions regarding the modification of a 

formal LWEC.4

 The relevant part provides that a formal LWEC will be modified when: (1) the 

original rating was in error; (2) the claimant’s medical condition has changed; or (3) the claimant 

has been vocationally rehabilitated.5

 OWCP procedures further provide that the party seeking 

modification of a formal loss of wage-earning capacity decision has the burden to prove that one 

of these criteria has been met.6

 3 Katherine T. Kreger, 55 ECAB 633 (2004). 

4

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification Loss of Wage-Earning Capacity, Chapter 

2.1501 (June 2013). 

5 Id. at Chapter 2.1501.3(a) (June 2013). 

6 Id. at Chapter 2.1501.4 (June 2013). 
5

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background, of reasonable medical certainty and supported by medical 

rationalize explaining the opinion.7

ANALYSIS 

The Board finds that this case is not in posture for a decision as to whether appellant has 

established that OWCP’s September 14 2006 loss of LWEC determination should be modified. 

The Board previously remanded this case based upon a finding that the second opinion 

physician, Dr. Huston, had not provided a probative medical opinion regarding whether appellant 

had any residuals of her accepted employment-related aggravation of cervical and thoracic 

sprains/strains bilaterally. Following the Board’s remand, OWCP requested a supplemental 

report from Dr. Huston. Dr. Huston was asked to explain how the accepted aggravation of 

cervical and thoracic strain was causally related to his diagnosis of chronic myofascial pain 

syndrome and whether the diagnosed condition from September 14, 2010 to the present 

represented a worsening of the accepted condition. He was also asked to clarify and provide an 

opinion as to whether appellant’s work factors resulted in a permanent aggravation of any 

condition. In his April 24, 2013 letter, Dr. Huston failed to offer sufficient answers to OWCP’s 

questions. 

Regarding OWCP’s first query, he opined that he was sure that appellant’s work 

activities aggravated the symptoms of her underlying preexisting chronic myofascial pain 

syndrome, but he also opined that he could not provide a definitive opinion on this issue because 

he had no concrete evidence to show that the underlying muscle damage worsened. Dr. Huston’s 

opinion is vague and speculative as he fails to provide an unequivocal opinion on the cause of 

appellant’s current condition. The Board has held that medical opinions which are speculative or 

equivocal are of diminished probative value.8

 Dr. Huston did not definitely state whether 

appellant’s preexisting condition was caused or aggravated by the accepted employment injury. 

Further, the Board notes that he was authorized to perform any testing he deemed to be necessary 

in order to render a rationalized opinion. Dr. Huston stated that appellant had symptoms of 

preexisting myofascial pain syndrome at work which caused her to stop work. However, the 

Board has held that the fact that a condition arises while appellant was at work does not establish 

that work caused the condition.9

 Dr. Huston did not explain how his diagnosis of chronic 

myofascial pain syndrome was causally related to the accepted aggravation of cervical and 

thoracic sprain/strain and whether appellant’s current condition represented a worsening of the 

 7 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

8 See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the 

condition is probably related, most likely related or could be related are speculative and diminish the probative value 

of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or 

equivocal are of diminished probative value). 

9 William Nimitz, Jr., 30 ECAB 567, 570 (1979). 
6

accepted condition.10 Regarding OWCP’s second query, Dr. Huston noted that he was also 

unable to provide a definitive opinion as to whether appellant had permanent aggravation of her 

preexisting chronic myofascial pain syndrome. His opinion is vague and speculative and, thus is 

of diminished probative value.11 

The Board previously determined that Dr. Huston’s August 2, 2011 report did not 

provide a clear opinion regarding whether appellant had any residuals of her accepted 

employment-related condition. On remand, OWCP requested that Dr. Huston provide a 

supplemental report on this matter. Given that Dr. Huston’s supplemental report dated April 24, 

2013, does not adequately elaborate on his original report by providing a rationalized medical 

opinion explaining how appellant’s accepted cervical and thoracic sprains/strains bilaterally had 

materially worsened such that she was unable to perform the duties of her modified position, the 

Board finds that OWCP did not fulfill its obligation to assist in the development of medical 

evidence as directed by the Board on the prior appeal. OWCP must submit the case record and a 

detailed statement of accepted facts to a second referral physician for the purpose of obtaining a 

rationalized medical opinion on the issue of whether appellant has a change in her employmentrelated medical condition that has rendered her totally disabled for work. After this and such 

other development of the medical evidence as it deems necessary, OWCP shall issue a de novo

decision. 

Before OWCP and on appeal before the Board, appellant’s attorney contended that 

Dr. Bieri’s May 5, 2014 report was sufficient to establish that appellant’s accepted medical 

condition had materially worsened and that she was unable to work. In his report, Dr. Bieri 

agreed with the opinion of Dr. Veloor that appellant’s employment-related chronic cervical and 

thoracic strain had materially worsened to include myofascial pain syndrome and resulted in 

increased restrictions dating back to the fall of 2010 based on his objective examination findings 

of muscle spasms, trigger points, and myofascial symptoms. The Board previously reviewed 

Dr. Veloor’s opinion and determined that it was insufficiently rationalized to establish a material 

worsening of appellant’s accepted employment-related condition. 

Dr. Bieri explained that back spasms frequently developed from chronic strains of the 

cervical and thoracic regions and concluded that it was medically reasonable to expect this 

progression of the accepted condition. He further concluded that it was reasonable to expect the 

development of myofascial syndrome from the accepted condition given the chronic nature of 

this injury. Dr. Bieri did not sufficiently explain the process through which myofascial pain 

syndrome was caused or contributed to by the accepted cervical and thoracic conditions. His 

opinion on causal relationship is of limited probative value in that he did not provide adequate 

medical rationale in support of his conclusion.12 Further, Dr. Bieri did not provide an opinion 

explaining how appellant’s disability for full-time work was caused by the accepted employment 

injuries. The Board has held that medical evidence offering no opinion regarding the cause of an 

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

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not 

containing rationale on causal relationship are entitled to little probative value). 

11 See cases cited, supra note 8. 

12 L.H., Docket No. 09-1779 (issued June 15, 2010); William C. Thomas, 45 ECAB 591 (1994). 
7

employee’s condition is of limited probative value on the issue of causal relationship.13 For the 

stated reasons, Dr. Bieri’s report does not establish a material change in the accepted workrelated condition. Thus, appellant did not meet her burden of proof with this submission. 

CONCLUSION 

The Board finds that the case is not in posture for decision as to whether OWCP’s 

September 14, 2006 LWEC decision should be modified as further development is needed. 

ORDER 

IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of 

Workers’ Compensation Programs is set aside and remanded for action consistent with this 

decision of the Board. 

Issued: May 19, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 13 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 

58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).