United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.C., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 15-1853 

Issued: January 19, 2016 

Appearances: Case Submitted on the Record

Howard Graham, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On September 9, 2015 appellant, through counsel, filed a timely appeal from a July 23, 

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 has established that a modification of a July 31, 2009 

wage-earning capacity determination was warranted. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has been before the Board on a prior appeal.2 On May 10, 2001 appellant, then 

a 47-year-old welder, filed an occupational disease claim (Form CA-2) alleging that he 

developed carpal tunnel syndrome as a result of his federal employment. OWCP accepted the 

claim on August 27, 2001 for bilateral carpal tunnel syndrome.3

 The record indicates that 

appellant underwent a right carpal tunnel release surgery on December 28, 2001 and a left carpal 

tunnel release surgery on January 25, 2002. He also had a left ulnar nerve decompression 

surgery on June 5, 2003. Appellant returned to a light-duty position, but stopped work on 

September 22, 2003. He returned to work at four hours a day on October 14, 2003 and then filed 

a traumatic injury claim (Form CA-1) for injuries occurring on October 18, 2005 when he fell on 

stairs, OWCP File No. xxxxxx349. OWCP accepted that claim for neck strain, right shoulder 

rotator cuff tear, and right shoulder adhesive capsulitis. Appellant began receiving compensation 

for temporary total disability which OWCP based on four hours a day for the occupational 

disease claim and four hours for the traumatic injury claim. 

OWCP sent a copy of the job description for a motor vehicle dispatcher (Department of 

Labor’s Dictionary of Occupational Titles, DOT # 249.157-014) to the attending physician, 

Dr. Michael McManus, a Board-certified occupational medicine specialist. The job description 

indicated that the job involved compiling lists of vehicles, assigning vehicles, recording data, 

maintaining records, and issuing equipment. The position was identified as sedentary, with a 10 

pound lifting requirement, and occasional fingering and handling. OWCP requested an opinion 

as to whether appellant could perform the job duties. In a response dated September 19, 2008, 

Dr. McManus checked a box marked “approve this occupation.” 

By decision dated July 31, 2009, OWCP reduced appellant’s compensation, finding that 

he had the capacity to earn wages of $470.40 a week in the position of motor vehicle dispatcher. 

Appellant filed a claim for a recurrence of disability (Form CA-2a) on February 22, 2012. 

The evidence submitted included a report dated March 5, 2012 from Dr. McManus, who asserted 

that appellant’s condition had worsened. Dr. McManus reported that appellant had “developed 

reactive severe and recurrent lymphedema of his upper extremities, greatest right elbow-hand 

with any sustained or repetitive use of his hand.” By decision dated April 17, 2012, OWCP 

denied modification of the wage-earning capacity determination. Appellant requested a hearing. 

On December 13, 2012 an OWCP hearing representative affirmed the April 17, 2012 decision. 

In its June 12, 2013 decision, the Board affirmed the December 13, 2012 OWCP 

decision. The Board found that the medical evidence did not show a material change in the 

nature and extent of an injury-related condition. It was noted that OWCP had not accepted a 

lymphedema condition. 

 2

 Docket No. 13-0603 (issued June 12, 2013). 

3

 A March 29, 2007 OWCP decision found the accepted conditions also included bilateral epicondylitis and right 

trigger finger. 
3

Appellant continued to submit medical evidence regarding his condition. In a report 

dated March 8, 2013, Dr. McManus indicated that appellant reported “increased paresthesias 

involving ulnar distribution right hand with right dysesthesias interfering with sleep.” He noted 

that appellant had permanent work restrictions and there was “no change.” Dr. McManus noted 

a March 1, 2013 electromyogram/nerve conduction study (EMG/NCV) from Dr. Donald Bright, 

a neurologist. Dr. Bright reported that there was evidence of moderate right carpal tunnel, that 

had “progressed” since a 2008 study. 

On August 15, 2014 appellant submitted a (Form CA-2a) notice of recurrence dated 

May 22, 2014. He submitted a May 8, 2013 report from Dr. Benjamin Betteridge, Boardcertified in emergency medicine, who diagnosed carpal tunnel syndrome. Dr. Betteridge 

indicated that appellant reported pain and weakness in grip and was frustrated with continuing 

symptoms. Appellant also resubmitted the March 1, 2013 EMG/NCV study. 

By letter dated August 19, 2014, OWCP requested that appellant submit additional 

evidence with respect to modification of a wage-earning capacity determination. Appellant 

submitted a September 12, 2014 statement asserting that he was totally disabled. According to 

him he could not do any repetitive work and had to take pain medication daily. In a report dated 

September 4, 2014, Dr. McManus opined that, because of appellant’s multiple upper extremity 

conditions and surgeries, he had developed post-traumatic lymphedema of his right greater than 

left distal upper extremity. He reported that recent electrodiagnostic testing has confirmed a 

progression or worsening of appellant’s right carpal tunnel syndrome status post carpal tunnel 

release. Dr. McManus opined, “This is a direct result of [appellant’s] secondary upper extremity 

post[-]traumatic lymphedema. This chronic lymphedema which is aggravated by any sustained 

or repetitive use of his hands or upper extremities increases the pressure within the carpal tunnel 

and has resulted in a recurrence of his right carpal tunnel syndrome status post carpal tunnel 

release.” 

The case was referred to an OWCP medical adviser with respect to whether lymphedema 

should be accepted as a consequential injury. In a report dated September 18, 2014, the medical 

adviser, Dr. L.I. Weaver, opined that appellant’s “bilateral upper extremity aching, stiffness, 

cold sensitivity, and diffuse brawny edema are more likely than not a consequence of his work, 

accepted conditions and surgery for the accepted conditions.” The medical adviser indicated that 

the treating physician had reported the most likely diagnosis to explain the diffuse brawny 

swelling was bilateral lymphedema and it was most likely a consequence of appellant’s work 

duties, accepted conditions, and surgery for the accepted conditions. On September 19, 2014 

OWCP accepted lymphedema. 

By decision dated October 16, 2014, OWCP found that the evidence of record was 

insufficient to warrant modification of the July 31, 2009 wage-earning capacity determination. It 

noted the lymphedema was an accepted condition, but Dr. McManus did not explain how the 

condition had changed such that appellant was disabled for the motor vehicle dispatcher position. 

On October 27, 2014 OWCP received a note dated October 17, 2014 from Dr. McManus, 

indicating that appellant had received a denial from OWCP and wished to discuss the reasons he 

could not perform the dispatcher position. Dr. McManus indicated that appellant would discuss 

with his representative and bring the denial letter to Dr. McManus for review. In a report dated 
4

October 23, 2014, he provided results on examination and indicated that appellant continued to 

have permanent work restrictions. 

In a report dated November 12, 2014, Dr. McManus wrote that appellant had posttraumatic lymphedema, as noted in his prior chart notes. He reported that appellant’s condition 

was recurrently aggravated by any repetitive use of his hands, and that he had involvement of the 

right or dominant hand much more severe than the left hand. Dr. McManus reported that this 

edema results in progressive limited use of his hand function with aggravation of his carpal 

tunnel symptoms, digit, stiffness, and pain. He opined, “Due to this condition, [appellant] has 

previously failed or been unable to complete a computer retraining class. The job of dispatcher 

requires repetitive use of keyboard and rapid fingering. [Appellant] would be unable to perform 

this job due to his chronic upper extremity deficits, lymphedema, and recurrent right carpal 

tunnel syndrome.” 

On June 5, 2015 appellant, though counsel, submitted a request for reconsideration. He 

submitted a December 10, 2014 report from Dr. McManus, indicating that he had reviewed the 

job description for a motor vehicle dispatcher. Dr. McManus reported that appellant “cannot lift 

or carry 5 pounds for 5-1/3 hours per day, much less 10 pounds occasionally for 1/3 of the day 

due to the swelling in his arms or his bilateral recurrent upper extremity lymphedema, which has 

caused a recurrence of his right carpal tunnel syndrome.” He further noted that appellant could 

not reach frequently for 2/3 of the workday due to his recurrent upper extremity lymphedema 

and recurrent right carpal tunnel syndrome, and that his work restrictions were five pounds 

lifting for one hour per day, no pushing or pulling of more than five pounds per day, and no 

reaching in front or above his head for more than one hour per day, with no keyboarding. 

Dr. McManus concluded, “The chronic lymphedema is the reason for lowering [appellant’s] 

weight restriction to [five] pounds and the repetitive motion to even 1/3 of the day exacerbates 

the swelling and edema in his arms and hands. [To] a reasonable medical certainty, [appellant] 

cannot perform the job duties of motor vehicle operator [sic].” 

In a report dated July 8, 2015, Dr. McManus provided results on examination. He 

indicated that appellant continued to have permanent work restrictions. 

By decision dated July 23, 2015, OWCP declined to modify the July 31, 2009 wageearning capacity determination. It found that the increased work restrictions were based on a 

telephone consultation, and the dispatcher position did not involve constant keyboarding or rapid 

fingering, as described by Dr. McManus. In addition, OWCP found that the change in 

restrictions was based largely on complaints of recurrent swelling with repetitive motions, but 

on-going medical evidence showed only mild edema on the right hand/wrist. 

LEGAL PRECEDENT 

Once the wage-earning capacity of an injured employee is determined, a modification of 

such determination is not warranted unless there is a material change in the nature and extent of 

the injury-related condition, the employee has been retrained or otherwise vocationally 
5

rehabilitated, or the original determination was, in fact, erroneous.4 The burden of proof is on 

the party attempting to show a modification of the wage-earning capacity determination.5

 

ANALYSIS 

In the present case, OWCP determined on July 31, 2009 that the selected position of 

motor vehicle dispatcher represented appellant’s wage-earning capacity. Appellant seeks to 

modify the wage-earning capacity determination on the basis that there was a material change in 

the nature and extent of the injury-related condition. He therefore bears the burden of proof to 

modify the wage-earning capacity determination. 

In his September 4, 2014 report, Dr. McManus noted a worsening of appellant’s carpal 

tunnel syndrome on an EMG/NCV report and opined that it was the result of the lymphedema 

increasing the pressure within the carpal tunnel. He opined in his November 12, 2014 report that 

the edema results in progressive limited use of appellant’s hand function with aggravation of his 

carpal tunnel symptoms, with stiffness and pain. In his December 10, 2014 report, Dr. McManus 

indicated that he had reviewed the job requirements for the motor vehicle dispatcher position and 

opined that appellant could not perform the position. 

The Board notes that at the time of the Board’s last decision on June 12, 2013 the 

condition of lymphedema was not an accepted condition. OWCP further developed the evidence 

and referred the evidence to an OWCP medical adviser for an opinion as to whether the 

lymphedema was a consequential injury. Based on the opinion of the medical adviser, OWCP 

accepted lymphedema as a consequential injury on September 19, 2014. 

In the case of M.M., the claimant had submitted medical evidence supporting a worsening 

of a newly diagnosed shoulder condition.6

 The issue in the case was whether a wage-earning 

capacity determination should be modified. OWCP requested an opinion from an OWCP 

medical adviser as to whether the shoulder condition was a consequential injury. Based on the 

opinion of the medical adviser, the condition was accepted as a consequential injury. The Board 

held that OWCP should have further developed the issue of whether there was a worsening of the 

accepted shoulder condition such that it constituted material change in the nature and extent of 

the injury-related condition. 

A similar situation is presented in the instant case. Appellant requested modification of a 

wage-earning capacity determination and submitted supporting evidence. OWCP began 

development of the medical evidence, but failed to do a complete job that resolved all of the 

relevant issues. Having determined that the lymphedema was employment related, OWCP 

should have further developed the medical evidence to determine if it warranted modification of 

the wage-earning capacity determination. 

 4 Sue A. Sedgwick, 45 ECAB 211 (1993). 

5 Id.

6

 Docket No. 11-0681 (issued October 4, 2011). 
6

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence to see that justice is done.7

 Once 

OWCP undertakes development of the record, it must do a complete job in procuring medical 

evidence that will resolve the relevant issues in the case.8 In this case, appellant alleged and 

submitted medical evidence in support of her claim that her condition worsened following the 

issuance of a wage-earning capacity determination. OWCP began to develop the evidence by 

seeking an opinion from the district medical adviser as to whether his lymphedema condition 

was consequential to the accepted injury. It failed, however, to seek clarification as to whether 

appellant’s condition had materially worsened due to the lymphedema condition. Without such 

information, an informed decision cannot be reached on the relevant issue. 

On remand, OWCP should secure a probative opinion on the issue presented. After such 

further development as is necessary, it should issue a merit decision. 

CONCLUSION 

The Board finds that the case is not in posture for decision and is remanded to OWCP for 

further development. 

 7 William J. Cantrell, 34 ECAB 1223 (1983). 

8 Richard F. Williams, 55 ECAB 343, 346 (2004). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated July 23, 2015 is set aside and the case remanded for further action 

consistent with this decision of the Board. 

Issued: January 19, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board