United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.R., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Philadelphia, PA, Employer 

__________________________________________ 

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Docket No. 16-1790 

Issued: June 8, 2017 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On September 7, 2016 appellant, through counsel, filed a timely appeal from May 16 and 

July 25, 2016 merit decisions 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 appellant met her burden of proof to establish a back 

condition causally related to factors of her federal employment; and (2) whether appellant met 

her burden of proof to establish modification of a December 6, 2010 loss of wage-earning 

capacity (LWEC) determination. 

FACTUAL HISTORY 

This case has previously been before the Board.3

 The facts and circumstances as set forth 

in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth 

below. 

On August 9, 2007 appellant, then a 29-year-old nursing assistant, filed a traumatic injury 

claim (Form CA-1) alleging that on July 30, 2007 she sustained lower back, hips, and leg injuries 

while pivoting a patient into bed in the performance of duty. She stopped work on 

August 3, 2007. OWCP assigned the claim File No. xxxxxx261 and accepted it for acute lumbar 

sprain/strain. On September 18, 2007 OWCP placed appellant on the periodic rolls. On 

April 30, 2009 appellant accepted a full-time job offer from the employing establishment as a 

telephone operator. She returned to work on May 11, 2009. 

By decision dated March 26, 2010, OWCP reduced appellant’s wage-loss compensation, 

effective May 11, 2009, finding that her actual wages as a telephone operator fairly and 

reasonably represented her wage-earning capacity. It calculated that, effective May 11, 2009 she 

no longer had an LWEC as her actual earnings either met or exceeded “the current wages” of her 

date-of-injury position. Therefore, OWCP terminated her compensation benefits for wage loss. 

On December 6, 2010 OWCP modified its LWEC determination. It noted that it had 

received additional information from the employing establishment clarifying the amount of 

actual wages lost due to decreased premium pay between her date-of-injury nursing assistant 

position and her current telephone operator position. OWCP found that the prior LWEC 

decision was in error. It determined that appellant was entitled to compensation from May 11, 

2009 to December 18, 2010 and that she had an 87 percent wage-earning capacity. 

Appellant, on October 10, 2012, filed a claim for a recurrence of disability (Form CA-2a) 

commencing July 24, 2012 attributable to her July 30, 2007 work injury. She claimed that sitting 

eight hours a day as a telephone operator caused lower back and leg pain. Appellant asserted 

that pain from her original injury had never stopped. 

Appellant submitted an October 26, 2012 attending physician’s report (Form CA-20) 

from Dr. Franklin E. Caldera, an osteopath and Board-certified physiatrist. Dr. Caldera 

diagnosed lumbar herniated disc and indicated by marking a box “yes” that the diagnosed 

condition was caused or aggravated by a work activity. He related that appellant’s pain would 

continue with strenuous activity such as, lifting and prolonged standing and sitting. Dr. Caldera 

advised that she was unable to resume her regular work. He indicated that appellant had chronic 

 3

 Docket No. 10-794 (issued December 15, 2010) and Docket No. 14-0733 (issued August 18, 2015). 
3

low back pain radiating to her right leg. Dr. Caldera concluded that appellant was permanently 

disabled. 

In response to an OWCP request, appellant submitted additional medical evidence. In 

undated letters and medical reports dated October 10, 2012 to January 9, 2013, Dr. Caldera again 

noted a history of the July 30, 2007 employment injury and provided results on examination. He 

diagnosed low back pain, lumbar degenerative disc disease, lumbar radiculopathy, and status 

post lumbar decompression. Dr. Caldera opined that these conditions were causally related to 

the July 30, 2007 work injury. He maintained that appellant’s pain was exacerbated with 

increased activity such as prolonged standing and sitting. Dr. Caldera listed her permanent 

physical restrictions, determined that appellant had reached maximum medical improvement 

(MMI), and opined that she became totally disabled from work on July 25, 2012. 

In a March 7, 2013 decision, OWCP denied appellant’s recurrence claim as the medical 

evidence of record failed to establish disability, beginning on July 25, 2012, due to a material 

change or worsening of her accepted work-related injury. It found that Dr. Caldera failed to 

explain how the accepted 2007 work injury caused her current symptoms.4

On March 11, 2013 counsel requested an oral hearing before an OWCP hearing 

representative regarding the recurrence denial. In a February 6, 2013 report, Dr. Caldera 

examined appellant and reiterated his diagnoses of low back pain and lumbar radiculopathy. He 

also restated that she was unable to work due to pain. 

In an October 21, 2013 decision, an OWCP hearing representative affirmed the March 7, 

2013 recurrence decision, finding that appellant had failed to submit rationalized medical 

evidence establishing a recurrence of disability due to the July 30, 2007 work injury. 

On February 12, 2014 counsel appealed the October 21, 2013 recurrence decision to the 

Board. 

On March 12, 2014 appellant filed an occupational disease claim (Form CA-2) alleging 

that she sustained a herniated disc at L5-S1 along with compression at the S1 nerve root sitting 8 

to 16 hours a day at work. She first became aware of her condition on July 25, 2012 and of its 

relationship to her employment on February 17, 2014.5 Appellant stopped work on 

July 24, 2012. OWCP assigned the claim File No. xxxxxx047. 

Appellant submitted several reports and diagnostic test results dated August 4, 2007 to 

February 17, 2014 which addressed her back conditions, total disability from work, and medical 

treatment. On February 17, 2014 Dr. Caldera reiterated a history of the July 30, 2007 work 

 4

 In an April 25, 2013 decision, OWCP terminated appellant’s wage-loss compensation and medical benefits 

effective that day. It found that the weight of the medical evidence rested with Dr. Noubar A. Didizian, a Boardcertified orthopedic surgeon and an OWCP referral physician, who determined in his February 25, 2013 report that, 

appellant’s work-related lumbar condition had resolved with no residuals. Dr. Didizian attributed her current 

symptomatology and work stoppage to her nonemployment-related July 25, 2012 back surgery. By decision dated 

December 18, 2013, an OWCP hearing representative affirmed the April 25, 2013 termination decision. 

5

 The employing establishment indicated that appellant medically retired effective July 24, 2012. 
4

injury and noted appellant’s medical treatment. He reported her present symptoms which 

included worsening low back pain since the accepted injury. Dr. Caldera discussed examination 

findings and reviewed diagnostic test results. He disagreed with Dr. Didizian that appellant had 

no residuals of the accepted work injury. Dr. Caldera noted that the traditional view of back pain 

was that 80 to 90 percent of patients recovered in six weeks and 5 to 10 percent developed 

chronic back pain. He maintained that current evidence showed that the recurrence rate from a 

back injury was up to 75 percent. Dr. Caldera related that this meant a patient’s symptoms from 

one injury could worsen and progress over time. He maintained that appellant’s condition 

continued to deteriorate despite her treatment and inability to work at her preinjury level. 

Appellant had pain over five years and was treated within the medical standard of care. 

Dr. Caldera restated his diagnoses of low back pain, lumbar herniated disc, lumbar 

radiculopathy, status post lumbar decompression, and lumbar facet arthropathy. He also 

reiterated that these conditions were caused by the accepted work. 

By letter dated September 11, 2014, OWCP advised appellant of the deficiencies in her 

claim and requested that she submit additional factual and medical evidence. 

In an October 3, 2014 statement, appellant noted her July 30, 2007 employment injury 

and again contended that this injury was aggravated by sitting 8 to 16 hours a day while working 

as a telephone operator. She provided a September 24, 2014 report from Dr. Caldera who 

restated the findings from his February 17, 2014 report. 

By decision dated October 28, 2014, OWCP denied appellant’s occupational disease 

claim. It found that the medical evidence was insufficient to establish that she sustained an 

injury or a medical condition causally related to accepted work events. 

On November 10, 2014 appellant requested an oral hearing before an OWCP hearing 

representative. 

In a February 3, 2015 decision, an OWCP hearing representative set aside the 

October 28, 2014 decision and remanded the case to OWCP for further development of the 

medical evidence. She found that Dr. Caldera’s September 24, 2014 report was sufficient to 

require referral to a second opinion physician. 

On remand, by letter dated February 19, 2015, OWCP referred appellant, together with a 

statement of accepted facts (SOAF), the medical record, and a list of questions, to Dr. Robert A. 

Smith, a Board-certified orthopedic surgeon, for a second opinion. In a March 27, 2015 report, 

Dr. Smith reviewed the SOAF and discussed appellant’s medical history, including her 

diagnostic test results and July 25, 2012 surgical report she provided to him. He noted 

essentially normal findings on physical and neurological examination. Dr. Smith advised that 

there were no objective findings of residuals of the accepted July 30, 2007 work injury. He 

opined that appellant could return to her regular-duty work with no restriction. Dr. Smith further 

opined that her July 25, 2012 back surgery and treatment from 2009 to the present were not 

reasonable, necessary, or related to the accepted employment injury. He noted that recovery 

from a lumbar strain, with or without treatment, was expected to occur within two to three 

months. 
5

In an April 7, 2015 decision, OWCP again denied appellant’s occupational disease claim. 

It found that Dr. Smith’s second opinion represented the weight of the medical evidence to 

establish that she did not sustain a low back condition causally related to her work as a telephone 

operator from 2009 to 2012. 

On April 21, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. In a May 27, 2015 decision, an OWCP hearing representative set aside the 

April 7, 2015 decision. She found deficiencies in Dr. Smith’s report and also found that the case 

record in File No. xxxxxx047 did not contain all of the relevant medical evidence. The hearing 

representative remanded the case for OWCP to combine File Nos. xxxxxx261 and xxxxxx047 

and further develop the factual and medical evidence. On remand, OWCP combined the files, 

with No. xxxxxx047 serving as the master file. 

Subsequently OWCP, by letter dated June 18, 2015, requested that the employing 

establishment submit a statement verifying that appellant worked mandatory overtime as a 

telephone operator up to 16 hours a day and indicating how many times she worked more than 8 

hours a day from May 10, 2009 to July 24, 2012. It also requested a copy of her telephone 

operator position description. 

OWCP received a March 25, 2015 lumbar MRI scan report from Dr. Linda J. Bagley, a 

Board-certified radiologist, who found status post right L5-S1 hemilaminectomy and discectomy 

with postoperative sequelae. Dr. Bagley found residual/recurrent degenerative changes at this 

level, including a diffuse disc bulge with superimposed right paracentral and lateral disc 

protrusion with possible superimposed epidural scar formation narrowing the right subarticular 

and lateral recesses and neural foramen and likely compressing the right L5 and S1 nerve roots. 

A right S1 nerve root appeared enlarged. Dr. Bagley recommended a Gadolinium-enhanced 

MRI scan. Additional degenerative changes included multilevel facet arthropathy and a diffuse 

disc bulge with unchanged small superimposed right lateral disc protrusion, narrowing of the 

right neural foramen, and contacting the right L4 nerve root. There were multiple incompletely 

characterized bilateral renal lesions. Dr. Bagley suggested dedicated imaging. 

In a June 30, 2015 letter, the employing establishment indicated that appellant worked 

overtime 193 times from May 10, 2009 to July 24, 2012. It was unable to determine whether it 

or she had requested the overtime work. The employing establishment submitted a position 

description for a telephone operator. 

By letter dated July 22, 2015, OWCP requested that Dr. Smith review an updated SOAF 

and the medical records in File Nos. xxxxxx047 and xxxxxx261 and submit a rationalized report 

to clarify whether appellant sustained a low back injury caused or aggravated by working as a 

telephone operator from May 10, 2009 to July 24, 2012. 

In an August 18, 2015 decision,6

 the Board set aside the October 21, 2013 recurrence 

decision, finding that OWCP’s hearing representative should have adjudicated the issue of 

modification of OWCP’s December 6, 2010 LWEC determination rather than issuing a decision 

 6 Supra note 3. 
6

denying appellant’s claim for a recurrence of disability. The Board remanded the case to OWCP 

for proper adjudication of this issue.7

In an August 19, 2015 supplemental report, Dr. Smith reviewed the updated SOAF, 

position description of a telephone operator, and medical record. He opined that there were no 

objective findings to support a back injury, need for surgery, or prolonged disability causally 

related to appellant’s employment as a telephone operator from May 10, 2009 to July 24, 2012. 

On August 26, 2015 OWCP found a conflict in medical opinions between Drs. Smith 

and Caldera as to whether appellant sustained a low back injury and resultant total disability 

caused or aggravated by working as a telephone operator from May 10, 2009 to July 24, 2012. 

By letter dated September 2, 2015, it referred her, together with a SOAF, the medical record, and 

a list of questions, to Dr. William H. Simon, a Board-certified orthopedic surgeon, for an 

impartial medical examination (IME). 

In an October 19, 2015 report, Dr. Simon noted examining appellant on 

October 14, 2015. He reviewed her medical records and the SOAF. Appellant had current 

complaints of pain in her back and legs, right side greater than left. She noted constant pain in 

the middle of her back, but related that it was tolerable with pain medicine. Appellant’s pain 

radiated down her buttock to the back of her legs to her feet, right side greater than left, with 

numbness in her right fourth and fifth toes. She rated her pain as 10 on a scale of 0 to 10. On 

examination, appellant was in no acute distress. She did not utilize any aids to ambulate. 

Appellant had slight difficulty arising from a chair due to back pain. She walked initially with a 

mild, right-sided limp and then walked normally on her heels and toes. Appellant could walk up 

on her toes and back on her heels without difficulty. Lumbar spine range of motion included 75 

degrees of forward flexion, 10 degrees of extension, 20 degrees of lateral bending, and 35 

degrees of rotation. Appellant had mild discomfort on motion extremes. She had full cervical 

spine range of motion. On examination of the legs, Dr. Simon reported no atrophy with straight 

leg raising and Lasegue signs negative. Appellant had normal range of motion and power about 

her hips, knees, ankles, and toes. Deep tendon reflexes were hyporeactive, but symmetrical 

about the knees and ankles. There were no pathologic reflexes and sensation was intact. 

Examination of the arms revealed normal ranges of motion and good grip strength bilaterally. 

Neurologic examination was normal. Examination of the spine revealed no tenderness to light to 

medium palpation from the cervical spine to the lumbosacral area. There was no tenderness in 

the left or right lumbosacral angle and no involuntary paravertebral muscle spasm. 

Dr. Simon diagnosed lumbar spine degenerative joint disease and degenerative disc 

disease and status post lumbar laminectomy and foraminotomy on the right side at L5-S1. He 

opined that appellant had no evidence of residual from her 2007 work-related lumbosacral strain. 

Dr. Simon advised that any such strain, a soft tissue injury of the lumbar spinal musculature and 

ligaments, would heal within three to four months and would not leave an objective residual. He 

noted that there was no changing objective residual in appellant’s spine based on a negative 

electromyogram (EMG) or multiple MRI scans which showed findings similar to those in 2007 

 7

 In the August 18, 2015 decision, the Board also affirmed OWCP’s hearing representative’s December 18, 2013 

termination decision. The Board determined that OWCP met its burden of proof to justify termination of 

compensation benefits, effective April 25, 2013, based on Dr. Didizian’s February 25, 2013 report. 
7

and between the time that she returned to work in 2009 and the time she underwent surgery in 

2012. Dr. Simon reported that the operative note clearly indicated that there were no additional 

changes at the L5-S1 area that could be specifically caused by sitting at a workstation between 

2009 and 2015. He also noted that although literature was filled with evidence of the 

progression of degenerative changes in the lumbar spine over a period of years, there was no 

evidence that sitting itself caused the progression of degenerative changes or any type of 

aggravation or acceleration of previous lumbar sprain or strain. Therefore, Dr. Simon agreed 

with Dr. Smith that appellant had no objective residual trauma from the July 30, 2007 

employment injury and the time she spent sitting as a telephone operator did not cause further 

progression, aggravation, or acceleration of any changes in her lumbar spine that would warrant 

decompressive surgery. 

Dr. Simon noted that appellant had retired on disability, but opined that she could return 

to light work as long as she was allowed to take her medication and to change position as 

needed. He concluded by noting that degenerative joint disease and degenerative disc disease 

would progress slowly on their own without any additional trauma. Dr. Simon maintained that 

while this may have happened to appellant, there was no evidence by virtue of any objective 

testing that these changes, which may have occurred on the passage of time, were notable on any 

objective testing, such as an MRI scan, x-ray, or EMG. He further maintained that these changes 

were not noticeable during appellant’s back surgery. 

In an October 28, 2015 decision, OWCP denied appellant’s occupational disease claim. 

It found that Dr. Simon’s report was entitled to special weight accorded an IME to establish that 

she did not sustain a low back injury causally related to the accepted work events. 

On November 2, 2015 appellant requested an oral hearing before an OWCP hearing 

representative. 

On remand following the Board’s August 18, 2015 decision, regarding the recurrence 

claim, OWCP issued a decision on December 16, 2015 denying appellant’s recurrence claim and 

modification of the December 6, 2010 LWEC decision. In a December 21, 2015 letter, counsel 

requested an oral hearing. Later, on March 22, 2016, he requested a change from an oral hearing 

to a review of the written record. 

In an April 4, 2016 addendum, Dr. Caldera discussed his findings on examination and 

reviewed appellant’s diagnostic test results. He advised that, after reviewing the reports of 

Drs. Simon and Smith, his opinions and conclusions about appellant’s medical condition had not 

changed. Dr. Caldera disagreed that appellant’s July 30, 2007 work-related lumbar strain injury 

resolved in six weeks. He noted that, while lumbar strain injuries existed, a September 14, 2007 

MRI scan showed right foraminal disc protrusion that abutted the L5 nerve root. Dr. Caldera 

advised that this finding excluded lumbar strain as appellant’s primary diagnosis. He related that 

while repeated EMGs did not show any signs of denervation, they did not exclude radiculopathy 

as her symptoms matched the distribution of her MRI scan findings. Dr. Caldera indicated that 

electrodiagnostic testing helped to diagnose radiculopathies, but had poor sensitivity to detect 

sensory radiculopathies, as in appellant’s case. He maintained that since there was no gold 

standard for diagnosing radiculopathy, it was unknown what percentage of radiculopathies, were 

purely sensory. Dr. Caldera noted that appellant had no objective findings as multiple MRI 
8

scans showed a herniated disc which could cause pain. He reaffirmed his prior statement about 

the percentages of patients who recover from back pain and those who develop chronic back 

pain. Dr. Caldera also reiterated that appellant’s pain continued to deteriorate despite her 

treatment. He noted Dr. Simon’s finding that there was no disc material seen during her surgery, 

but maintained that he failed to mention that the S1 nerve appeared inflamed and a laminectomy 

was performed to decompress the area. Dr. Caldera related that S1 nerve inflammation was the 

reason appellant had leg symptoms. He further related that the July 30, 2007 work injury 

resulted in her chronic lumbar back pain which was exacerbated with increased activity, such as 

prolonged standing and sitting. Dr. Caldera advised that cumulative trauma over time worsened 

her condition. Appellant’s pain progressively worsened and she never recovered from her 

original injury. Dr. Caldera indicated that appellant’s pain was exacerbated even when she 

changed to a sedentary position as it involved prolonged sitting. The progression of appellant’s 

condition was evident by a lumbar spine MRI scan. Dr. Caldera advised that her condition 

continued to deteriorate and the lumbar MRI scan after her July 25, 2012 surgery still showed 

evidence of a herniated disc touching the nerve root. He related that she had reached MMI and 

addressed her treatment plan. Dr. Caldera reiterated his prior diagnoses of low back pain, lumbar 

herniated disc, lumbar radiculopathy, status post lumbar decompression, and lumbar facet 

arthropathy and opinion that these conditions were caused by the July 30, 2007 work-related 

incident and resulted in her disability from work as of July 25, 2012. 

In a May 16, 2016 decision, an OWCP hearing representative affirmed the October 28, 

2015 decision denying appellant’s occupational disease claim. He found that the special weight 

of medical evidence rested with Dr. Simon’s October 19, 2015 impartial report and established 

that there was no connection between any low back problem and appellant’s telephone operation 

job or the July 30, 2007 work injury. 

By decision dated July 25, 2016, another OWCP hearing representative affirmed the 

December 16, 2015 decision denying appellant’s recurrence claim and denying modification of 

the December 6, 2010 LWEC determination.8

 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking benefits under FECA has the burden of proof to establish the 

essential elements of his or her claim, including the fact that the individual is an employee of the 

United States within the meaning of FECA, that the claim was filed within the applicable time 

limitation, that an injury was sustained while in the performance of duty as alleged, and that any 

disability and/or specific condition for which compensation is claimed are causally related to the 

employment injury.9

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10

 8

 In the July 25, 2016 decision, the hearing representative incorrectly adjudicated the issue of appellant’s 

recurrence claim, by affirming OWCP’s December 16, 2015 decision. In the Board’s August 18, 2015 decision, the 

case was remanded to rule only on appellant’s LWEC claim. 

9 C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989). 

10 S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 

153 (1989). 
9

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, a claimant must submit the following: (1) medical evidence establishing the 

presence or existence of the disease or condition for which compensation is claimed; (2) a factual 

statement identifying employment factors alleged to have caused or contributed to the presence 

or occurrence of the disease or condition; and (3) medical evidence establishing that the 

employment factors identified by the claimant were the proximate cause of the condition for 

which compensation is claimed or, stated differently, medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the claimant. 

The medical evidence required to establish a causal relationship is rationalized medical opinion 

evidence. The opinion of the physician must be based on a complete factual and medical 

background of the employee, must be one of reasonable certainty, and must be supported by 

medial rationale explaining the nature of the relationship between the diagnosed condition and 

the specific employment factors identified by the employee.11 

When there exists opposing medical reports of virtually equal weight and rationale and 

the case is referred to an IME 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.12

ANALYSIS -- ISSUE 1 

OWCP found that a conflict existed between the medical opinion of appellant’s treating 

physician, Dr. Caldera, and the second opinion physician, Dr. Smith, with regard to whether 

appellant had a low back condition causally related to her job duties as a telephone operator from 

May 10, 2009 to July 24, 2012. It properly referred appellant to Dr. Simon to resolve the 

conflict.13

The Board finds that Dr. Simon’s opinion is well rationalized and represents the special 

weight of the medical evidence. Dr. Simon October 19, 2015 report establishes that appellant 

did not sustain an occupational disease due to job duties from May 10, 2009 to July 24, 2012. 

He found no clinical findings showing a causal relationship between appellant’s diagnosed 

lumbar degenerative joint disease and lumbar degenerative disc disease and the accepted July 30, 

2007 employment-related acute lumbar sprain/strain and time spent and established employment 

factor of sitting as a telephone operator. Dr. Simon noted that a soft tissue injury of the lumbar 

spinal musculature and ligaments healed within three to four months and did not have any 

objective residuals. He further noted that while literature was filled with evidence of the 

progression of degenerative changes in the lumbar spine over a period of years, there was no 

evidence that sitting itself caused the progression of degenerative changes or any type of 

aggravation or acceleration of a previously sustained lumbar sprain or strain. Dr. Simon 

accurately summarized the relevant medical evidence, provided detailed examination findings 

 11 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. 

12 S.R., Docket No. 09-2332 (issued August 16, 2010); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. 

Godfrey, 52 ECAB 486 (2001). 

13 See C.B., Docket No. 15-2015 (issued July 24, 2015). 
10

which were essentially normal with the exception of limited range of motion and mild discomfort 

on motion extremes, and reached conclusions about appellant’s condition which comported with 

his findings.14 As his report is detailed, well rationalized, and based on a proper factual 

background, his opinion is entitled to the special weight accorded an IME.15 Dr. Simon’s report 

represents the special weight of the evidence and establishes that appellant’s lumbar degenerative 

joint disease and lumbar degenerative disc disease were unrelated to established sitting as a 

telephone operator or to the resolved July 30, 2007 employment injury. 

As the special weight of the evidence rests with the rationalized opinion of the IME, 

appellant has not met her burden of proof to establish a low back condition causally related to 

her job duties as a telephone operator from May 10, 2009 to July 24, 2012 or to the resolved 

July 30, 2007 work injury. 

Dr. Caldera’s April 4, 2016 report is insufficient to overcome the special weight accorded 

Dr. Simon as an IME. He merely reiterated his findings and conclusions and noted his 

disagreement with the opinions of Dr. Simon and Dr. Smith. The Board has long held that 

reports from a physician who was on one side of a medical conflict that an IME resolved, are 

generally insufficient to overcome the weight accorded to the report of the IME, or to create a 

new conflict.16 Dr. Caldera had been on one side of the conflict resolved by Dr. Simon. His 

report is therefore insufficient to outweigh Dr. Simon’s opinion or to create a new conflict in 

medical evidence.17

Other medical evidence, including reports of diagnostic testing, is insufficient to establish 

the occupational disease claim as the evidence does not address how a diagnosed condition is 

causally related to sitting at her job or to the resolved July 30, 2007 work injury. Medical 

evidence that does not offer any opinion regarding the cause of an employee’s condition is of 

limited probative value.18 Consequently, there is insufficient medical evidence of record to 

establish that appellant’s claimed low back condition was caused or aggravated by her federal 

employment. Appellant did not meet her burden of proof. 

On appeal counsel contends that the weight of the medical evidence is not represented by 

the medical opinion of the IME as it is not well reasoned. For the reasons stated above, 

Dr. Simon’s opinion is entitled to the special weight of the medical evidence as an IME because 

it was detailed, well rationalized, and based on a complete factual and medical history. Counsel 

further contends on appeal that OWCP’s October 28, 2015 decision should be vacated because 

he did not receive a copy of the decision at the time it was issued. His contention is not 

supported by the record. The Board notes that the record indicates that the reason the 

 14 Manuel Gill, 52 ECAB 282 (2001). 

15 See Kathryn E. Demarsh, 56 ECAB 677 (2005). 

16 I.J., supra note 11.

17 See B.T., Docket No. 08-1885 (issued June 3, 2009). 

18 See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); 

Michael E. Smith, 50 ECAB 313 (1999). 
11

October 28, 2015 decision was not received by counsel was that he did not become the attorney 

of record until February 29, 2016, after issuance of the decision. Furthermore, after counsel was 

authorized, he appeared at the March 4, 2016 hearing, argued on appellant’s behalf, and was duly 

provided a copy of the May 16, 2016 decision. 

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2 

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.19

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

such determination is not warranted unless it meets the requirements for modification.20 OWCP 

procedures at section 2.1501 contain provisions regarding the modification of a formal loss of 

wage-earning capacity.21 The relevant part provides that a formal loss of wage-earning capacity 

will be modified when: (1) the original rating was in error; (2) the claimant’s medical condition 

has materially changed; or (3) the claimant has been vocationally rehabilitated.22

The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.23

ANALYSIS -- ISSUE 2 

In File No. xxxxxx261 OWCP accepted appellant’s claim for acute lumbar sprain/strain. 

It issued a December 6, 2010 decision finding that her actual earnings as a telephone operator 

fairly and reasonably represented her wage-earning capacity and reduced her compensation 

accordingly. Beginning on July 24, 2012, appellant requested total disability compensation. On 

July 25, 2012 she underwent a lumbar decompression performed by Dr. Arlet to treat her lumbar 

herniated disc. 

As a formal LWEC determination was in effect at the time appellant claimed total 

disability, she must show a basis for modification of that decision to be entitled to wage-loss 

compensation. The Board finds that the evidence of record is insufficient to establish that the 

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

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

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

2.1501 (June 2013). 

22 Id. at § 2.1501.3(a). 

23 Jennifer Atkerson, 55 ECAB 317 (2004). 
12

original LWEC determination was erroneous or to establish a material change in appellant’s 

employment-related conditions.24

Appellant has submitted several reports of Dr. Caldera. In reports dated October 10, 

2012 to August 8, 2013, Dr. Caldera diagnosed lumbar herniated disc, low back pain, lumbar 

degenerative disc disease, lumbar radiculopathy, and status post lumbar decompression. He 

opined that these conditions were causally related to the accepted July 30, 2007 work-related 

injury and found that appellant was totally disabled from work as of July 25, 2012. 

As noted above, the accepted lumbar condition in this case is acute lumbar sprain/strain. 

Dr. Caldera did not sufficiently explain why this accepted condition prevented appellant from 

performing the telephone operator duties, in light of his additional diagnoses that included a 

lumbar herniated disc that required surgery on July 25, 2012 which has not been accepted.25 He 

has not provided a reasoned explanation as to how appellant’s accepted condition worsened such 

that she was unable to perform the duties-of-the job in which her LWEC determination was 

based. Dr. Caldera attributed her symptoms to conditions not accepted as employment related. 

The Board has held that appellant has the burden of proof to establish that the unaccepted 

conditions are employment related.26 The Board finds that appellant did not submit sufficient 

medical evidence to establish a material change in the nature and extent of her injury-related 

condition and, therefore, she did not meet her burden of proof to show that the December 6, 2010 

LWEC determination should be modified.27

Appellant may request modification of the LWEC determination, supported by new 

evidence or argument, before OWCP at any time. 

CONCLUSION 

The Board finds that appellant has failed to meet her burden of proof to establish a back 

condition causally related to factors of her federal employment. The Board further finds that 

appellant has failed to meet her burden of proof to establish modification of a December 6, 2010 

loss of wage-earning capacity determination. 

 24 Supra note 20. 

25 Where residuals of an accepted employment-related condition prevent the employee from performing regular 

duties, physical ailments that preexisted the accepted condition must be taken into consideration. Physical ailments 

acquired subsequent to and unrelated to the accepted injury are excluded from any wage-earning determination. 

Lee A. Dent, 54 ECAB 704 (2003). 

26 See G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, supra note 8; Alice J. Tysinger, 51 

ECAB 638 (2000). 

27 See T.M., Docket No. 08-975 (issued February 6, 2009). 
13

ORDER 

IT IS HEREBY ORDERED THAT the July 25 and May 16, 2016 decisions of the 

Office of Workers’ Compensation Programs are affirmed. 

Issued: June 8, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board