United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.W., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Rockwall, TX, Employer 

__________________________________________ 

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Docket No. 15-1709 

Issued: August 16, 2016 

Appearances: Case Submitted on the Record

Michael E. Woods, for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 13, 2015 appellant, through her representative, filed a timely appeal from an 

April 29, 2015 nonmerit decision and a May 12, 2015 merit decision of the Office of Workers’ 

Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this 

case. 

 1

 In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation. 

2

 5 U.S.C. § 8101 et seq. 
2

ISSUES 

The issues are: (1) whether OWCP properly determined that appellant’s December 16, 

2014 reconsideration request was untimely filed and failed to establish clear evidence of error; 

and (2) whether it properly reduced appellant’s compensation effective August 24, 2014 based 

on her capacity to earn wages in the constructed position of appointment clerk. 

FACTUAL HISTORY 

This case has previously been before the Board regarding the issue of appellant’s failure 

to participate in vocational rehabilitation.3 The facts and circumstances outlined in the Board’s 

prior decision are incorporated by reference. The facts relevant to the present appeal are set forth 

below. 

On April 23, 2004 appellant, then a 51-year-old rural letter carrier, filed an occupational 

disease claim (Form CA-2) alleging osteoarthritis due to repetitive motion. OWCP assigned the 

claim file number xxxxxx260 and accepted osteoarthritis of the left thumb and hand. It 

subsequently accepted an open wound of the left wrist with tendon involvement and mechanical 

complications from the implant of an internal orthopedic device and graft.4 In March 2005, 

appellant returned to modified-duty work under physical limitations performing light office 

duties. By decision dated December 21, 2005, OWCP reduced her monetary benefits to zero as 

her actual earnings fairly and reasonably represented her wage-earning capacity. 

In June 2005, appellant filed a subsequent occupational disease claim (Form CA-2) 

alleging that the repetitive motion of her job and left wrist and hand injury caused overuse of her 

right shoulder. OWCP assigned the claim file number xxxxxx470 and accepted right rotator cuff 

syndrome. 

As of November 24, 2010, the employing establishment could no longer accommodate 

appellant’s work restrictions under OWCP file number xxxxxx470 under the National 

Reassessment Process (NRP). Accordingly, OWCP placed her on the periodic compensation 

rolls, effective January 5, 2011. In May 2011, it combined appellant’s two occupational disease 

claims, with file number xxxxxx260 designated as the master file. 

On January 3, 2012 OWCP referred appellant to the nurse intervention program, and on 

March 27, 2012 it referred her to vocational rehabilitation. 

By decision dated April 11, 2013, OWCP suspended appellant’s compensation under 

section 8113(b) of FECA and 20 C.F.R. § 10.519 because she failed to participate as required 

with vocational rehabilitation efforts. Although appellant contended that she could not 

participate with vocational rehabilitation due to fatigue, bilateral knee problems, kidney disease 

and seizure disorder, the medical evidence of record did not establish that her total disability was 

 3

 Docket No. 14-0372 (issued November 12, 2014). 

4

 On July 18, 2007 OWCP granted appellant a schedule award for 14 percent permanent impairment of her left 

arm. 
3

due to her accepted conditions. Her compensation was reduced to zero as of May 5, 2013, but 

was reinstated on June 3, 2013 after she returned to vocational rehabilitation. 

By decision dated September 11, 2013, an OWCP hearing representative affirmed the 

April 11, 2013 decision suspending appellant’s compensation from May 5 to June 3, 2013. 

Appellant appealed the September 11, 2013 decision to the Board. 

After a period of educational training, the positions of appointment clerk, information 

clerk, and telephone solicitor were identified by the vocational rehabilitation counselor. In a 

letter dated January 7, 2014, OWCP advised appellant that these positions were suitable to her 

medical and work restrictions. Appellant was advised that she would receive 90 days of 

placement assistance to help locate suitable work in one of those positions provided she 

cooperated with such effort. She was also advised that her wage-loss compensation benefits 

would be reduced based upon the salary of one of those positions at the end of the 90-day 

placement assistance period. 

Following the 90-day placement assistance period, vocational rehabilitation services were 

closed on April 9, 2014, as appellant failed to obtain employment. Despite appellant’s inability 

to secure employment, the vocational rehabilitation specialist found her vocationally capable of 

performing all targeted positons. He advised that, based on the November 20, 2012 opinion of 

referee physician Dr. Bernie L. McCaskill, a Board-certified orthopedic surgeon, all targeted 

positions remained vocationally and medically appropriate as they were within appellant’s 

medical restrictions and existed in sufficient numbers within the reasonable commuting area. 

The vocational rehabilitation specialist indicated that the Occupational Information Network 

(O*NET) and the Occupational Employment Statistics from the U.S. Department of Labor, 

Bureau of Labor Statistics confirmed availability of such positions in appellant’s geographical 

area and provided numerous job leads and job fair information for appropriate positions. 

On July 17, 2014 OWCP proposed reducing appellant’s compensation to reflect her 

ability to earn wages as an appointment clerk at the pay rate of $328.00 per week. It indicated 

that the evidence of record revealed that she was vocationally and physically capable of working 

as an appointment clerk, that the position was reasonably available in her commuting area and 

that it represented her wage-earning capacity. Appellant was advised that, if she disagreed with 

this proposal, she had 30 days to respond. 

Evidence submitted in response to the proposal to reduce her compensation included a 

June 24, 2014 report of Dr. Jeff Fritz, an anesthesiologist, which contained an assessment of 

chronic left shoulder injury with decreasing range of motion. The report noted that appellant did 

not have transportation and driving was a problem for her. 

In an August 15, 2014 telephone call, appellant stated that: she had been applying for 

jobs but no one had returned her calls for employment, that she wanted another referee 

examination performed as Dr. McCaskill was biased, and that her left thumb was functionally 

limited. 

In an August 13, 2014 statement, appellant’s representative contended that OWCP 

utilized improper selection procedures to select Dr. McCaskill as the referee physician. He noted 

that the case records contained an October 10, 2012 screen-shot bypass note indicating that 
4

Dr. Benzel McMasters was bypassed because his appointment scheduler was unable to schedule 

an appointment within a reasonable time and was given the bypass code 0. The representative 

argued that OWCP selected Dr. McCaskill without waiting the mandatory two hours before 

moving on to the next physician on the list. He further noted that Dr. McCaskill and 

Dr. McMasters share the same office and staff. The representative additionally contended that 

Dr. McCaskill’s report was vague and speculative and did not provide medical reasoning when 

he found that the etiology of appellant’s condition was unknown. He further argued that the 

medical record indicated that appellant had epilepsy as well as kidney disease and dysfunction 

and she was unable to comply with the requirements of vocational rehabilitation. The 

representative argued that OWCP should take into account both preexisting and subsequently 

acquired conditions. 

By decision dated August 18, 2014, OWCP reduced appellant’s compensation effective 

August 24, 2014 based on her ability to earn wages as an appointment clerk. It found that the 

evidence and arguments submitted did not alter its determination to reduce appellant’s 

compensation. OWCP found appellant’s representative’s request for a new impartial medical 

examiner was not supported by the evidence of file. It indicated that the position was sedentary 

and that the physical requirements did not exceed the work restrictions as provided by 

Dr. McCaskill in his referee report of November 20, 2012. OWCP noted that the position was 

reasonably available in appellant’s commuting area and that the entry pay level for the position 

was $328.00 per week. Using the Shadrick formula,5

 it calculated the percentage of her loss of 

wage-earning capacity (LWEC) based on this position.6

On September 11, 2014 appellant, through her representative, requested an oral hearing 

before an OWCP hearing representative with regard to the August 18, 2014 LWEC 

determination. In a September 11, 2014 letter, appellant’s representative set forth duplicative 

arguments previously of record pertaining to Dr. McCaskill’s selection as the impartial medical 

specialist and requested a new referee examination. 

By decision dated November 12, 2014, the Board affirmed the September 11, 2013 

decision, but found that there had been no conflict in medical opinion between appellant’s 

treating physician, Dr. Mike Shah, a specialist in pain management, and OWCP’s second opinion 

physician, Dr. Charles Mitchell, a Board-certified orthopedic surgeon, as to appellant’s capacity 

for work due to the accepted work-related conditions. Therefore, the opinion of Dr. McCaskill, 

the Board-certified orthopedic surgeon selected as the impartial medical specialist, was reduced 

to that of a second opinion referral physician. The Board noted neither Dr. Shah, Dr. Mitchell, 

nor Dr. McCaskill found appellant totally disabled from work due to residuals of her accepted 

conditions and that the medical evidence of record did not support that appellant’s nonworkrelated medical conditions preexisted her injuries of 2004 or 2005. The Board therefore affirmed 

OWCP’s September 11, 2013 decision which found that appellant had failed to cooperate in the 

early stages of vocational rehabilitation efforts and thus properly reduced her compensation to 

zero for the period May 5 to June 3, 2013. 

 5 Albert C. Shadrick, 5 ECAB 376 (1953). 

6 See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992). 
5

On December 16, 2014 appellant requested reconsideration of the September 11, 2013 

suspension decision for her failure to participate in the early stages of vocational rehabilitation 

efforts. Her representative noted that the Board had affirmed the finding that appellant had failed 

to cooperate with the early stages of vocational rehabilitation and had reduced referee physician 

Dr. McCaskill’s opinion to that of a second opinion physician. He contended that there 

continued to be a conflict of medical opinion as to appellant’s ability to participate in vocational 

rehabilitation and OWCP failed to meet its burden of proving that appellant was able to 

participate in vocational rehabilitation. A copy of a November 27, 2012 medical report of 

Dr. Shah previously of record7

 and new medical reports of Dr. Fritz dated November 3 and 

December 8, 2014 were submitted to demonstrate the continued conflict in medical opinion. 

In his November 3, 2014 report, Dr. Fritz indicated that appellant had a right shoulder 

injury with an accepted condition of right rotator cuff syndrome. He reviewed the magnetic 

resonance imaging (MRI) scan studies of the right shoulder from May 23, 2005, November 24, 

2008, and April 9, 2013 and indicated that the MRI scan dating back to 2005 demonstrated that 

appellant’s work injury had not ceased and she still had significant pathology. On examination 

appellant had significantly decreased strength and decreased range of motion. Dr. Fritz advised 

that her prognosis was poor and she was not a surgical candidate due to other medical problems. 

In his December 8, 2014 report, he disagreed with Dr. McCaskill’s November 20, 2012 findings 

that there was no hand atrophy and that appellant had full range of motion of the 

metacarpophalangeal joint and radial abduction of 60 degrees. Dr. Fritz cited to the evidence of 

record as well as his own examination findings. He also disagreed with Dr. McCaskill’s findings 

with regard to her shoulder injury. 

On March 12, 2015 a hearing was held with regard to the August 18, 2014 OWCP 

decision that the selected position of appointment clerk fairly and reasonably represented 

appellant’s wage-earning capacity. At the hearing, appellant’s representative noted that 

Dr. McCaskill’s report had never been submitted to Dr. Shah for his concurrence; therefore, 

OWPC erred. He indicated that appellant’s treatment was transferred from Dr. Shah to Dr. Fritz 

and resubmitted Dr. Fritz’s rebuttal report of December 8, 2014. At the hearing, the hearing 

representative advised appellant, through her representative, that, in order to create a conflict of 

opinion, the actual work restriction issue had to be addressed, and that Dr. Fritz had not 

discussed appellant’s work restrictions or whether she could perform the duties of the 

appointment clerk job. Appellant’s representative noted that the job offer came in after 

Dr. McCaskill’s report. He also contended that appellant’s personal injury worsened so that she 

was totally disabled. 

Following the hearing, the record was held open for 30 days. Evidence from Dr. Fritz 

included a prescription note dated March 24, 2015 and a progress report of the same date, which 

indicated that appellant had chronic work-related left hand injury that was prone to flare ups. 

Requests for medical authorization were also received. 

By decision dated April 29, 2015, OWCP denied appellant’s December 16, 2014 request 

for reconsideration of the April 11, 2013 decision affirming the suspension of compensation for 

 7

 The record reflects that Dr. Shah’s November 27, 2012 report was previously considered on September 19, 

2013, December 16, 2014, and January 28, 2015. 
6

May 5 to June 3, 2013. OWCP found that the request for reconsideration was untimely filed and 

failed to establish clear evidence of error. 

By decision dated May 12, 2015, OWCP’s hearing representative affirmed OWCP’s 

August 18, 2014 decision which reduced appellant’s compensation effective August 24, 2014 

based on her ability to earn wages as an appointment clerk. 

LEGAL PRECEDENT -- ISSUE 1 

OWCP, through regulations, has imposed limitations on the exercise of its discretionary 

authority under section 8128(a) of FECA. It will not review a decision denying or terminating a 

benefit unless the application for review is received within one year of the date of that decision.8 

The one-year period begins on the date of the original decision. However, a right to 

reconsideration within one year accompanies any subsequent merit decision on the issues. This 

includes any hearing or review of the written record decision, any denial of modification 

following reconsideration, any merit decision by the Board, and any merit decision following 

action by the Board, but does not include prerecoupment hearing decisions.9

Its regulations state that OWCP will reopen a claimant’s case for merit review, 

notwithstanding the one-year filing limitation set forth section 10.607 of OWCP regulations, if 

the claimant’s application for review shows clear evidence of error on the part of OWCP.10 In 

this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on 

the prior evidence of record.11

To establish clear evidence of error, a claimant must submit evidence relevant to the issue 

which was decided by OWCP. The evidence must be positive, precise, and explicit and must 

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial 

question concerning the correctness of OWCP’s decision is insufficient to establish clear 

evidence of error. It is not enough to merely 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 show clear 

evidence of error, the evidence submitted must be of sufficient probative value to prima facie

shift the weight of the evidence in favor of the claimant and raise a substantial question as to the 

correctness of OWCP’s decision.12 

 8

 20 C.F.R. § 10.607(a) (2011). 

9

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011). 

10 20 C.F.R. § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000). 

11 See Alberta Dukes, 56 ECAB 247 (2005). 

12 Robert G. Burns, 57 ECAB 657 (2006). 
7

ANALYSIS -- ISSUE 1 

In its April 29, 2015 decision, OWCP improperly determined that appellant had failed to 

file a timely application for review. The Board has reviewed the record on appeal and remands 

the case to OWCP for application of the correct standard of review because appellant’s request 

for reconsideration was timely submitted. 

An application for reconsideration must be received by OWCP within one year of the 

date of a merit review of the claim, including any merit review by the Board.13 The last merit 

decision of record, regarding appellant’s failure to participate in vocational rehabilitation, was 

the Board’s November 12, 2014 decision, which affirmed OWCP’s September 11, 2013 

decision. The Board found that OWCP properly reduced appellant’s compensation to zero from 

May 5 to June 3, 2013 for failing to cooperate with the early stages of vocational rehabilitation. 

Because appellant’s reconsideration request on that issue was received on December 16, 2014, 

within one year of the last merit decision dated November 12, 2014, the Board concludes that the 

request was timely.14

The Board notes that OWCP’s April 29, 2015 decision erroneously noted that appellant 

requested reconsideration of its April 11, 2013 decision. As reflected in the procedural history, 

on September 11, 2013 an OWCP hearing representative had affirmed the April 11, 2013 

decision which suspended appellant’s compensation from May 5 to June 3, 2013. By merit 

decision dated November 12, 2014, the Board affirmed the September 11, 2013 decision. 

In its April 29, 2015 decision denying appellant’s reconsideration request, OWCP applied 

the clear evidence of error legal standard. This standard is the appropriate standard only for 

cases in which a reconsideration request is untimely filed.15 Since OWCP erroneously reviewed 

the evidence submitted by appellant in support of her reconsideration request under the clear 

evidence of error standard, the Board will remand the case to OWCP for application of the 

standard for reviewing a timely request for reconsideration as set forth at 20 C.F.R. 

§ 10.606(b)(3). 

LEGAL PRECEDENT -- ISSUE 2 

Once OWCP accepts a claim, it has the burden of proof to justify termination or 

modification of compensation benefits.16 An injured employee who is either unable to return to 

the position held at the time of injury or unable to earn equivalent wages, but who is not totally 

 13 20 C.F.R. § 10.607. 

14 C.V., Docket No. 14-1293 (issued February 23, 2015); J.N., Docket No. 12-1543 (issued February 12, 2013). 

15 See Donna M. Campbell, 55 ECAB 241 (2004). 

16 H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 

197 (2005). 
8

disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.17 

Under section 8115(a) of FECA, wage-earning capacity is determined by the actual 

wages received by an employee, if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent the employee’s 

wage-earning capacity or if the employee has no actual wages, the wage-earning capacity is 

determined with due regard to the nature of the injury, the degree of physical impairment, the 

employee’s usual employment, age, qualifications for other employment, the availability of 

suitable employment, and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.18 Wage-earning capacity is a measure of the 

employee’s ability to earn wages in the open labor market under normal employment 

conditions.19 The job selected for determining wage-earning capacity must be a job reasonably 

available in the general labor market in the commuting area in which the employee lives.20 The 

fact that an employee has been unsuccessful in obtaining work in the selected position does not 

establish that the work is not reasonably available in her commuting area.21

When OWCP makes a medical determination of partial disability and of specific work 

restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for 

selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles 

(DOT) or otherwise available in the open market, that fit the employee’s capabilities with regard 

to his or her physical limitations, education, age, and prior experience. Once this selection is 

made, a determination of wage rate and availability in the labor market should be made through 

contact with the state employment service or other applicable service. Finally, application of the 

principles set forth in Albert C. Shadrick22 and codified by regulations at 20 C.F.R. § 10.40323

should be applied. Subsection(d) of the regulations provide that the employee’s wage-earning 

capacity in terms of percentage is obtained by dividing the employee’s actual earnings or the pay 

rate of the position selected by OWCP, by the current pay rate for the job held at the time of the 

injury.24 

In determining an employee’s wage-earning capacity based on a position deemed 

suitable, but not actually held, OWCP must consider the degree of physical impairment, 

 17 20 C.F.R. §§ 10.402, 10.403. 

18 5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB 

584 (1996). 

19 Albert L. Poe, 37 ECAB 684, 690 (1986). 

20 Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See 

Glen L. Sinclair, 36 ECAB 664, 669 (1985). 

21 See Leo A. Chartier, 32 ECAB 652, 657 (1981). 

22 Supra note 5. 

23 20 C.F.R. § 10.403. 

24 Id. at § 10.403(d). 
9

including impairments resulting from both injury-related and preexisting conditions, but not 

impairments resulting from postinjury or subsequently acquired conditions.25 Any incapacity to 

perform the duties of the selected position resulting from subsequently acquired conditions is 

immaterial to the loss of wage-earning capacity that can be attributed to the accepted 

employment injury and for which appellant may receive compensation. Additionally, the job 

selected for determining wage-earning capacity must be a job reasonably available in the general 

labor market in the commuting area in which the employee lives.26 OWCP is not obligated to 

actually secure employment for appellant.27 Additionally, the Board has held that a wageearning capacity determination must be based on a reasonably current medical evaluation.28

ANALYSIS -- ISSUE 2 

In 2004 OWCP accepted that appellant sustained osteoarthritis of the left thumb and 

hand, an open wound of left wrist with tendon involvement and mechanical complications of 

internal orthopedic device, implant, and graft. In 2005 under claim, file number xxxxxx470, it 

accepted right rotator cuff syndrome. Appellant continued to work as a modified rural letter 

carrier until November 24, 2010 when the employing establishment could no longer 

accommodate her work restrictions. She was placed on the periodic rolls in receipt of 

compensation for total disability as of January 5, 2014. OWCP reduced appellant’s 

compensation benefits effective August 24, 2014 based on her ability to earn wages as an 

appointment clerk, a decision that was affirmed by the hearing representative on May 12, 2015. 

The Board finds that OWCP improperly determined that appellant was physically capable 

of performing the selected position of an appointment clerk. The Board notes that the opinion of 

Dr. McCaskill is not that of an impartial medical specialist, but that of a second opinion referral 

physician. In its November 12, 2014 decision, the Board had determined that there was no 

conflict in medical opinion at the time appellant was referred to Dr. McCaskill, which rendered 

his opinion that of a second opinion referral physician.29 

 25 James Henderson, Jr., 51 ECAB 268 (2000). 

26 Id. 

27 Phillip S. Deering, 47 ECAB 692 (1996). 

28 See M.A., 59 ECAB 624 (2008). See Carl C. Green, Jr., 47 ECAB 737, 746 (1996) (six-month-old medical 

reports are reasonably current for purposes of wage-earning capacity determination); Cf. Keith Hanselman, 42 

ECAB 680 (1991) (two-year-old medical report and year-old work restriction evaluation forms were not reasonably 

current for wage-earning capacity determination); Anthony Pestana, 39 ECAB 980 (1988) (three-year-old medical 

evaluation is not reasonably current for wage-earning capacity determination). 

29 See Docket No. 14-372 (issued November 12, 2014). The Board specifically found that Dr. Shah offered 

insufficient medical reasoning pertaining to appellant’s residuals and work limitations to warrant application of 

section 8123 of FECA. 
10

The appointment clerk position was listed as sedentary and the duties do not exceed the 

restrictions set forth by Dr. McCaskill. In this case, however, the medical evidence upon which 

OWCP relied to determine appellant’s ability to work an appointment clerk was stale.30 

Dr. McCaskill’s November 20, 2012 opinion regarding appellant’s ability to work was 

based on an examination of appellant conducted nearly nine months prior to OWCP’s reduction 

of compensation effective August 24, 2014. His opinion would not provide a reasonably 

accurate assessment of appellant’s medical condition and ability to work around the time OWCP 

adjusted her compensation. While the Board has had occasion to evaluate the probative value of 

older medical reports and, because cases differ, it has never adopted a rigid standard.31 

The Board further notes that Dr. McCaskill’s November 20, 2012 report, as well as older 

medical reports previously of record, did not discuss appellant’s disability as of August 24, 2014 

when her compensation was reduced. While Dr. McCaskill opined that appellant’s restrictions 

were related to difficulties grasping with her left hand because of thumb dysfunction and pain, 

none of the physicians of record, including Dr. Shah, Dr. Mitchell, Dr. McCaskill, found 

appellant totally disabled for work due to residuals of her accepted conditions. The Board has 

held that stale medical evidence cannot form the basis for current evaluation of residual 

symptomology or disability determination.32 For this reason, the Board finds that 

Dr. McCaskill’s reports are of limited probative value regarding appellant’s ability to work as an 

appointment clerk in August 2014. OWCP therefore improperly reduced appellant’s 

compensation effective August 24, 2014 based on her capacity to earn wages as an appointment 

clerk.33

CONCLUSION 

The Board finds that since OWCP evaluated appellant’s timely reconsideration request 

under the wrong standard the April 29, 2015 decision of OWCP will be set aside and the case 

remanded to OWCP for proper consideration of appellant’s timely request for reconsideration. 

The Board further finds that OWCP improperly reduced appellant’s compensation effective 

August 24, 2014 based on her capacity to earn wages as an appointment clerk.

 30 See R.B., Docket No. 14-0594 (issued September 4, 2015). 

31 Id. 

32 See Keith Hanselman, supra note 28; see also Ellen G. Trimmer, 32 ECAB 1878 (1981). 

33 In light of the disposition of this case, appellant’s contentions on appeal will not be addressed. 
11

ORDER 

IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of 

Workers’ Compensation Programs is set aside and the case remanded for further proceedings 

consistent with this opinion and the May 12, 2015 OWCP decision is reversed. 

Issued: August 16, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board