United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.A., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE NATIONAL 

OFFICE, Richmond, VA, Employer

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Docket No. 17-0236

Issued: July 17, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 November 11, 2016 appellant, through counsel, timely appealed from a September 21, 

2016 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 the 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

ISSUE

The issue is whether appellant has met her burden of proof to establish that modification 

of her February 8, 2010 loss of wage-earning capacity (LWEC) determination was warranted. 

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth 

in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.

On November 14, 2005 appellant, then a 40-year-old clerk, filed an occupational disease 

claim (Form CA-2) attributing her elbow and arm pain to her work duties. OWCP accepted the 

claim for lateral and medial epicondylitis of the right elbow and ulnar nerve entrapment at both 

elbows. Appellant was taken off work on February 16, 2006. On March 2, 2006 she returned to 

full-time work with restrictions. Appellant was taken off work on July 17, 2007. She was returned 

to light-duty work four hours a day on April 17, 2008. Appellant underwent right ulnar nerve 

transfer submuscular, gentle and right tennis elbow release on September 5, 2008. OWCP placed 

appellant on the periodic rolls and she received wage-loss compensation and medical treatment.4

In a June 22, 2009 report, Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and 

second opinion physician, determined that appellant was at maximum medical improvement and 

was capable of performing full-time limited-duty work.

On August 6, 2009 Dr. Charles P. Bean, a Board-certified orthopedic surgeon and treating 

physician, concurred with Dr. Swartz’s opinion and findings.

On December 7, 2009 appellant accepted a permanent position as a clerk and returned to 

full-time work with permanent restrictions. She was off work for personal reasons from March 24 

to 26, 2011. Since March 2011, appellant was scheduled for full-time light-duty work. The record 

reflects that she worked from 20 to 58 hours every two weeks.

By decision dated February 8, 2010, OWCP advised appellant that she had been employed 

as a clerk with wages of $510.98 per week with the employment, effective December 7, 2009, the 

date she signed the job offer. It found that the duties of the clerk position reflected her work 

tolerance limitations and were established by the weight of the medical evidence. Additionally, 

appellant had demonstrated the ability to perform the duties of the position for two months or 

more. OWCP found that her actual earnings as a clerk represented her wage-earning capacity, and 

accordingly reduced her compensation to reflect her LWEC.

5

 It set forth the computation of 

 

3

J.V., Docket No. 09-1154 (issued February 26, 2010).

4 Appellant also has a separate work-related injury which was accepted for left elbow ulnar nerve entrapment at the 

left elbow under File No. xxxxxx593. OWCP doubled the claims under the present claim.

5 OWCP determined that appellant was entitled to compensation from December 7, 2009 to February 13, 2010, 

based on her actual earnings at the compensation level noted in the decision. 
3

compensation noting a loss in earning capacity of $76.27 per week with an augmented 

compensation rate of $50.78 per week.

On May 9, 2014 OWCP referred appellant for a second opinion examination with

Dr. Maya Thomas, a Board-certified neurologist, for an assessment of her work-related condition 

and the extent of her disability and the need for treatment. 

In a November 21, 2014 report, Dr. Thomas noted appellant’s history of injury and 

treatment and examined her. She diagnosed several conditions to include: bilateral myofascial 

pain; obstructive sleep apnea syndrome; fatigue; abnormal weight gain; and peripheral nerve 

disease. Dr. Thomas also indicated that appellant continued to suffer from residuals of her right 

elbow lateral epicondylitis, right medial epicondylitis, right elbow ulnar nerve entrapment, left 

ulnar nerve entrapment neuropathy, and left elbow ulnar nerve entrapment work-related 

conditions. Furthermore, she opined that it was likely that appellant met all of the symptoms for 

fibromyalgia. Dr. Thomas opined that appellant’s symptoms had worsened since 2009. She 

indicated that appellant was employable for part-time work that did not involve repetitive 

movement of the arms or hands. Dr. Thomas also noted that appellant had gained 100 pounds over 

the last 10 years. She provided findings and determined that appellant should have restrictions to 

include working for no more than four hours a day. They included: sitting, walking, and standing 

for no more than four hours a day. Dr. Thomas also indicated that appellant could not do any 

repetitive movement. She indicated that the restrictions involved “not using her hands constantly 

with typing or paperwork if such a job exists.”

On March 16, 2015 appellant filed a claim for compensation (Form CA-7) claiming 

intermittent wage loss from February 22 to March 7, 2015.

In a letter dated March 26, 2015, OWCP informed appellant that they had received her 

claim for wage-loss compensation. However, since a formal LWEC determination had been issued 

in her claim, on February 8, 2010, the claim for wage-loss compensation would be treated as a 

request for modification of her LWEC determination. OWCP allowed appellant 30 days to submit 

evidence forming the basis for modifying her LWEC determination.

In a letter also dated March 26, 2015, OWCP also sent a request for clarification to

Dr. Thomas, regarding her assessment of work tolerance limitations. 

In an April 6, 2015 report, the treating physician, Dr. Robert R. Taylor, an internal medicine 

specialist, noted that appellant had fibromyalgia aggravated by her work injury. He determined 

that appellant had numbness and tingling in her arm from the ulnar nerve injury, positive Tinel’s 

at the elbow, and trigger-point point tenderness throughout neck, shoulders, back, and legs from 

fibromyalgia. Dr. Taylor opined that the work injury limited her ability to function because of 

numbness and tingling. He recommended a referral to a rheumatologist, instead of a neurologist,

to give an evaluation of her situation. Dr. Taylor explained that appellant would be better off with 

a different position; however, it never occurred. Furthermore, appellant was “off work waiting for 
4

a Dragon [dictation] program to arrive.”

6

 Dr. Taylor indicated that, if the Dragon program had 

been implemented, it may eliminate the problem of repetitive movement. He indicated that, if the 

Dragon dictation program was implemented, appellant could work a minimum of four hours, but 

she should not have any hand or repetitive type of program.

In an April 10, 2015 report, Dr. Taylor indicated that he concurred with most of

Dr. Thomas’ report as far as the accepted injuries. However, he did not agree with the fibromyalgia 

diagnoses. Dr. Taylor opined that he, as well as other physician’s, agreed that she had fibromyalgia 

and that it was “at the very least, aggravated, if not caused by the accepted work injuries....” He 

noted that Dr. Thomas believed it was sleep apnea. Dr. Taylor requested a referee examination.

On April 13, 2015 OWCP received a supplemental report from Dr. Thomas indicating that 

she completed her prior report to the best of her ability. Dr. Thomas indicated that she could not 

“fill the form any differently.” She noted that appellant was working the same position despite 

reporting severe disability and she indicated that she was doing this with pain. Dr. Thomas

indicated that appellant continuing to work with repetitive motions could cause persisting pain and 

was not advised. She recommended a referral to physical medicine and rehabilitation.

In a letter dated April 15, 2015, OWCP explained to appellant that Dr. Thomas’ report was 

insufficiently rationalized with regard to her assessment of appellant’s work tolerance. It advised 

appellant that the previous work tolerance limitations provided by Dr. Swartz on June 22, 2009 

remained in effect. OWCP also advised that no further action would be taken regarding her 

pending claims for wage-loss compensation until the issue of her work-tolerance limitations was 

resolved.

On April 16, 2015 OWCP referred appellant for a second opinion, along with a statement 

of accepted facts, a set of questions, and the medical record to Dr. Michael E. Callahan, a Boardcertified orthopedic surgeon.

In a report dated May 11, 2015, Dr. Callahan described appellant’s history of injury and 

treatment. He examined appellant and provided findings. Dr. Callahan found that appellant was 

morbidly obese and appeared in no acute distress. He examined the upper extremities and found 

well-healed surgical scars on the posteromedial and lateral aspect of her right upper elbow.

Dr. Callahan advised that he did not detect any signs of muscular atrophy in the upper extremities. 

He explained that motor strength was within normal limits of muscle groups bilaterally. 

Dr. Callahan determined that there was a slight decrease in the grip on the right side, and explained 

that this was interpreted as being due to pain rather than any neurological weakness. He also 

indicated that there was no atrophy in the thenar or hypothenar eminence of either hand. Regarding 

the work-related accepted conditions, Dr. Callahan advised that appellant continued to complain 

of right lateral epicondylitis and medial epicondylitis demonstrated by marked tenderness to 

palpation in these areas with positive Tinel’s sign over the ulnar nerve. Furthermore, he advised 

that she continued to complain of left ulnar nerve entrapment symptoms, but she had no surgical 

treatment on that side. Dr. Callahan addressed whether appellant exhibited current objective 

 

6 The record reflects that the employing establishment placed appellant off work pending installation of a Dragon 

dictation program from March 20, 2015. Dr. Taylor filled in an April 3, 2015 duty status report (Form CA-17) in 

which he diagnosed fibromyalgia and placed appellant off work until the Dragon dictation program was installed.
5

findings of the work-related conditions. He explained that appellant continued to be somewhat 

physically active, and noted that, despite having a full year off work while she was caring for her 

ill mother, there was no significant benefit to her physical condition. Dr. Callahan determined that 

she had positive electromyography (EMG) scans, but they were “markedly variable” in the reports 

of the severity of the ulnar neuropathies. Additionally, he found that appellant had marked 

tenderness to palpation.

Dr. Callahan indicated that appellant worked four hours per day and continued to do 

repetitive work activities. He also indicated that, if fibromyalgia was a valid diagnosis, it was 

chronic, unremitting, and very difficult to treat. Dr. Callahan explained that appellant was very 

cooperative during the evaluation and appeared to be a very goad historian. He also found that 

there was no obvious symptom exaggeration or evasive behavior. Regarding the physical 

examination, Dr. Callahan noted inconsistencies in the two-point discrimination testing her right 

hand. He explained that the arm pains did not follow a typical radicular pattern although her 

complaints of numbness and tingling were in the ulnar nerve distribution in the hand. Dr. Callahan

noted that appellant had failed virtually every attempted treatment including surgical intervention 

as well as a long and extensive course of more conservative treatment. He opined that her 

prognosis was extremely guarded and unlikely to resolve. Dr. Callahan explained that appellant

was a high risk for failure in any contemplated surgery whether on the left upper extremity or even 

for neck surgery. Furthermore, appellant had failed injection therapy consistently and in? opined 

that no further injections were indicated.

Regarding fibromyalgia, Dr. Callahan determined that appellant displayed some symptoms 

of fibromyalgia including her chronic, somewhat diffuse, pain and complaints of muscle spasm. 

He noted that she complained of increased sensitivity to touch when she described discomfort 

wearing long sleeves, but he could not document that objectively when he conducted upper 

extremity muscular testing. For example, Dr. Callahan explained that appellant did not indicate 

any discomfort even with firm resistance in the hands, forearms, and arms of her upper extremities. 

While Dr. Callahan found some mild trigger-point findings in the trapezius, he did not find a 

pattern of the multiple trigger points usually described. Dr. Callahan determined that there was 

nothing in the medical records from any of her physicians to document trigger-point point testing. 

He indicated the only documentation was the diffuse pain and muscle spasms noted. Dr. Callahan 

opined that it was questionable that appellant met the diagnostic criteria for fibromyalgia. 

Additionally, Dr. Callahan explained that appellant’s morbid obesity had an adverse effect on her 

overall physical health. 

Regarding a worsening of her condition, Dr. Callahan opined that there were “no objective 

findings to consistently document any worsening of her diagnosis since June 2009. Appellant does 

complain subjectively of worsening symptoms, but these have not been documented by any 

imaging studies or electrodiagnostic studies. They did not provide any obvious evidence for 

progression.” Dr. Callahan opined that he “would have expected significant improvement of her 

condition during that year away from her work-related activities. That also makes me skeptical of 

her prognosis and a likelihood of recovering fully from her accepted injuries.” He completed the 

work restriction form and opined that appellant was capable of working an eight-hour day if the 

restrictions for her upper extremity and whole person limitations could be observed. Dr. Callahan

advised intermittent rest periods every two hours as well as the lunch period during her eight-hour 

workday. He also indicated that psychometric testing and possible cognitive behavioral therapy 
6

could be of significant benefit in her case to return her to a more functional and comfortable 

lifestyle.

By decision dated October 29, 2015, OWCP denied modification of its February 8, 2010 

LWEC determination. It found that the original LWEC determination was not in error, that 

appellant had not been retrained or otherwise vocationally rehabilitated, or that her accepted 

employment-related medical condition had materially changed.

On November 4, 2015 appellant, through counsel, requested a telephonic hearing, which 

was held before an OWCP hearing representative on July 12, 2016. During the hearing, counsel

indicated that he would submit medical evidence which supported appellant’s disability due to 

fibromyalgia. Appellant described her job duties, which included working on a computer and 

sorting hundreds of documents a day for eight hours. She asserted that she performed the same 

repetitive duties, and it worsened to the point where she could no longer perform her duties. 

Appellant confirmed that she worked full time since November 2015. 

Following the hearing, counsel submitted duplicate copies of Dr. Taylor’s April 6 and 10, 

2015 reports.

On July 21, 2016 a copy of the transcript was sent to the employing establishment for 

review and comment within 20 days. No response was received.

By decision dated September 21, 2016, OWCP’s hearing representative affirmed the 

October 29, 2015 decision denying a modification of the February 8, 2010 LWEC determination.

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.7

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 

rehabilitated, or the original determination was, in fact, erroneous.8 

The burden of proof is on the party attempting to show a modification of the wage-earning 

capacity determination.9

 

7 See R.E., Docket No. 17-1288 (issued May 16, 2018); Katherine T. Kreger, 55 ECAB 633 (2004).

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

9

Id.
7

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that 

modification of her February 8, 2010 LWEC determination was warranted. 

In seeking modification of her LWEC determination, appellant has not argued that the 

original determination was in error or that she has been retrained or otherwise vocationally 

rehabilitated. Rather, she argued that there has been a material change in the nature and extent of 

her injury-related condition. 

In support of her request for modification, appellant provided two reports from her treating 

physician, Dr. Taylor. In an April 6, 2015 report, Dr. Taylor noted that appellant had fibromyalgia 

aggravated by her work injury. He determined that appellant had numbness and tingling in her 

arm from the ulnar nerve injury, positive Tinel’s at the elbow, and trigger-point tenderness 

throughout neck, shoulders, back, and legs from fibromyalgia. Dr. Taylor opined that the work 

injury limited her ability to function because of numbness and tingling. He noted that appellant 

could work a minimum of four hours, but she should not have any hand or repetitive type of 

program. 

Dr. Taylor also provided an April 10, 2015 report and opined that he concurred with most 

of Dr. Thomas’ second opinion report as far as the accepted injuries. However, he did not agree 

with fibromyalgia diagnoses. Dr. Taylor opined that he, as well as other physicians, agreed that 

she had fibromyalgia, and it was “at the very least, aggravated, if not caused by the accepted work 

injuries....” He noted that Dr. Thomas believed the condition was sleep apnea instead of 

fibromyalgia.

The Board finds that the medical reports of Dr. Taylor are insufficient to warrant 

modification of the LWEC determination. First, Dr. Taylor did not provide any medical rationale 

explaining how or why appellant’s condition had deteriorated such that she was precluded from 

continuing to work in the position of clerk.10 Second, his opinion is insufficient to support a 

finding that appellant sustained a new medical condition, fibromyalgia. Although the physician 

provided an opinion on the cause of appellant’s conditions, which he believed was “at the very 

least, aggravated, if not caused by the excepted work injuries....” Dr. Taylor’s report is of limited 

probative value on this issue because he did not provide a clear opinion, supported by medical 

rationale, that appellant sustained a claimed condition due to either of the specific employment 

factors accepted in this case.11 The Board has held that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale explaining how a given 

medical condition/disability was related to employment factors.12

 

10 R.M., 59 ECAB 690 (2008).

11 D.R., Docket No. 16-0528 (issued August 24, 2016).

12 See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale describing the relation between work factors and 

a diagnosed condition/disability).
8

In support of her claim for modification of the LWEC determination, appellant also relied 

upon the second opinion report of Dr. Thomas, who examined her and provided a November 21, 

2014 report in which she opined that appellant’s condition had worsened. She diagnosed appellant 

with several conditions to include: bilateral myofascial pain; obstructive sleep apnea syndrome; 

fatigue; abnormal weight gain; and peripheral nerve disease. Dr. Thomas also indicated that 

appellant continued to suffer from residuals of her right elbow lateral epicondylitis, right medial 

epicondylitis, right elbow ulnar nerve entrapment, left ulnar nerve entrapment neuropathy, and left 

elbow ulnar nerve entrapment work-related conditions. Furthermore, she opined that it was likely 

that appellant met all of the symptoms for fibromyalgia. Dr. Thomas opined that appellant’s 

symptoms worsened since 2009. She indicated that appellant was employable for part-time work 

that did not involve repetitive movement of the arms or hands. Dr. Thomas determined that 

appellant should have restrictions to include working for no more than four hours a day including

sitting, walking, and standing for no more than four hours a day and that appellant could not do 

any repetitive movement. She noted that the restrictions involved “not using her hands constantly

with typing or paperwork if such a job exists.”

However, when Dr. Thomas was requested to clarify her opinion and provide objective 

findings to support her opinion, she responded, but merely reiterated her prior opinion.

The Board finds that Dr. Thomas did not provide objective findings to explain why 

appellant could not perform the duties of the clerk position. There was no explanation as to how 

the work restrictions were due to the accepted work-related condition. Furthermore, there was no 

explanation of how appellant’s functional ability due to her accepted conditions had changed such 

that she could not perform the duties of the clerk position. The Board also notes that fibromyalgia 

was not accepted as a work-related condition.13 The opinion of Dr. Thomas was that appellant did 

not develop the condition of fibromyalgia, and thus her opinion does not support a finding that the

acceptance of the claim should be expanded to include this condition.14

Dr. Callahan examined appellant and provided findings and his opinion regarding 

appellant’s physical condition and ability to perform her employment duties. He examined 

appellant’s upper extremities and found well-healed surgical scars on the posteromedial and lateral 

aspect of her right upper elbow. Dr. Callahan explained that appellant continued to be somewhat 

physically active, and noted that despite having a full year off work while she was caring for her 

ill mother, there was no significant benefit. He reviewed the diagnostic testing which was 

“markedly variable” and also found marked tenderness to palpation. Dr. Callahan indicated that 

appellant worked four hours per day and continued to do repetitive work activities. Regarding 

fibromyalgia, he determined that there was nothing in the medical records from any of her

physicians to document trigger-point testing and opined that it was questionable that appellant met 

the diagnostic criteria for fibromyalgia. Regarding a worsening of her condition, Dr. Callahan 

opined that there were “no objective findings to consistently document any worsening of her 

 

13 Where a claimant alleges that a condition not accepted or approved by OWCP was due to his or her employment 

injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury 

through the submission of rationalized medical evidence. See M.B., Docket No. 17-1773 (issued May 24, 2018); 

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

14 See M.B., id.
9

diagnosis since June 2009....” He noted that while she complained subjectively of worsening 

symptoms, these were not documented by any imaging studies or electrodiagnostic studies. “They 

did not provide any obvious evidence for progression.” Dr. Callahan opined that he “would have 

expected significant improvement of her condition during that year away from her work-related 

activities. That also makes me skeptical of her prognosis and a likelihood of recovering fully from 

her accepted injuries.” Dr. Callahan completed the work restriction form provided to him and 

opined that appellant was capable of working an eight-hour day if the restrictions for her upper 

extremity and whole person limitations could be observed. He advised intermittent rest periods 

every two hours as well as the lunch period during her eight-hour workday. The Board finds that

Dr. Callahan is entitled to the weight of the evidence as it provides a well-rationalized opinion 

explaining that there had been no material change in the nature and extent of appellant’s injuryrelated condition. Appellant has not established a material change in the nature and extent of her 

injury-related condition, that the original determination was in fact erroneous, or that she was 

vocationally rehabilitated. Thus, she has not met her burden of proof to establish that the 

February 8, 2010 LWEC determination should be modified.15

On appeal counsel for appellant, argues that OWCP committed error when it failed to 

accept fibromyalgia. However, for the reasons noted above, the Board found that she did not meet 

her burden of proof to support that either the original LWEC determination was erroneous or that 

there had been a material change in the nature and extent of her injury-related conditions.

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

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish that 

modification of the LWEC determination was warranted.

 

15 See supra note 9.
10

ORDER

IT IS HEREBY ORDERED THAT the September 21, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 17, 2018

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