United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.B., Appellant

and

DEPARTMENT OF JUSTICE, U.S. MARSHALS

SERVICE, New York, NY, Employer

__________________________________________

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Docket No. 18-1021

Issued: December 4, 2018

Appearances: Case Submitted on the Record

Paul H. Felser, 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 April 19, 2018 appellant, through counsel, filed a timely appeal from a March 30, 2018 

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

ISSUE

The issue is whether appellant has met his burden of proof to establish modification of the 

March 3, 2004 loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On April 26, 1983 appellant, then a 34-year-old U.S. Marshal, filed a traumatic injury claim 

(Form CA-1) alleging that on October 7, 1982 he sustained a gunshot wound to the head when a 

suspect fired on him with an automatic weapon. He stopped work on October 7, 1982 and did not 

return. OWCP accepted the claim for an open wound of the scalp with complications, 

postconcussion syndrome, post-traumatic stress disorder (PTSD), and an adjustment reaction. It 

paid appellant wage-loss compensation for total disability subsequent to his injury. 

By decision dated March 2, 2004, OWCP reduced appellant’s wage-loss compensation as 

his actual earnings as a clinical data analyst 2, effective February 28, 2000, fairly and reasonably 

represented his wage-earning capacity. It applied the formula set forth in Albert C. Shadrick3to 

determine his compensation rate every 28 days. 

On March 22, 2004 appellant requested an oral hearing before an OWCP hearing 

representative, which was held on July 29, 2004. By decision dated October 18, 2004, the hearing 

representative affirmed the March 2, 2004 LWEC determination. He noted that appellant had 

contested the calculation of his pay rate and found that OWCP properly determined his pay rate 

for compensation purposes.

In a report dated March 3, 2015, Dr. Laura Rosenbaum-Bloom, a Board-certified 

psychiatrist, discussed appellant’s history of PTSD and depression after being shot while working 

as a U.S. Marshal. She advised that she began treating him in June 2014 when he relocated to the 

area, noting that she had increased his medication due to a “recurrence of depression, loneliness, 

and hopelessness.” Dr. Rosenbaum-Bloom indicated that appellant worked at home as a medical 

coder for a local hospital which left him “more isolated and depressed. [Appellant] feels he cannot 

handle the level of work they are demanding from him at the hospital.” She opined that his move 

to Hilton Head Island, South Carolina had exacerbated his depression and PTSD, and further noted 

that his uncle who lived nearby had died a few months earlier. Dr. Rosenbaum-Bloom found that 

appellant was totally disabled due to PTSD arising from his 1982 employment injury.

In a March 12, 2015 record of conference form, appellant’s private employer discussed his 

unacceptable work performance. During a meeting with that employer, he resigned as he did not 

believe that he could sufficiently improve.

Appellant, on March 20, 2015, informed OWCP that he was unable to work due to his 

employment injury and requested an increase in his wage-loss compensation. In response to 

OWCP’s request for additional information, he related that his condition had worsened in 

May 2014 such that he could not leave his home or otherwise function. 

 

3 5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.
3

In a report dated May 20, 2015, Dr. Rosenbaum-Bloom advised that appellant had 

experienced an acute stress reaction, PTSD, and chronic major depressive disorder since his 

October 7, 1982 employment injury. She related that moving to South Carolina had “been 

disastrous for [appellant]” and aggravated his symptoms of disability. Dr. Rosenbaum-Bloom 

advised that appellant could no longer work as a medical coder. She noted that he had believed 

that working from home would be beneficial, but instead found it isolating. Dr. RosenbaumBloom related:

“[Appellant’s] depression has worsened, he has thoughts of suicide and has no 

desire to be with others. The above symptoms are all a result of his PTSD since 

being shot in 1982. [Appellant] has been in treatment for PTSD and depression. 

His symptoms have waxed and waned throughout since his injury. The symptoms 

have worsened since [appellant] has moved here and gotten to the point where he 

cannot handle the stress from his current job.”

On July 29, 2015 OWCP advised appellant of the provisions for establishing modification 

of an LWEC determination. It requested that he submit reasoned medical evidence supporting that 

he sustained increased disability due to his employment injury.

Dr. Rosenbaum-Bloom, in an August 27, 2015 report, opined that appellant was currently 

unable to work due to his stress disorder. She advised that his increase in symptoms resulted from 

his 1982 employment injury, rather than his move to South Carolina. Dr. Rosenbaum-Bloom 

noted that after appellant moved to South Carolina his symptoms had increased such that he could 

no longer perform his employment. She opined that his chronic, acute stress disorder was 

“exacerbated by [appellant’s] current situation, and a direct result from the original injury which 

changed his trajectory of his life and how he responded to his surroundings.” Dr. RosenbaumBloom advised, “In my professional opinion [appellant’s] original medical condition has 

significantly worsened and therefore [he] would qualify for modification.”

On February 9, 2016 OWCP referred appellant to Dr. John Custer, a Board-certified 

psychiatrist, for a second opinion examination. It asked Dr. Custer to evaluate appellant’s current 

condition and disability and address whether appellant’s relocation adversely affected his 

condition.

In a report dated February 18, 2016, Dr. Custer reviewed appellant’s history of a bullet 

wound to the forehead on October 7, 1982 during an exchange of gunfire in which a fugitive was 

killed. Appellant subsequently worked as a medical coder for approximately 13 years in Albany, 

New York, and then as a coder in South Carolina, near the residence of an uncle. His uncle died 

a few months after appellant moved to the area. Dr. Custer noted:

“[Appellant stated that] he was the only coder for the entire hospital. He was 

working from home and the lack of contact with the outside world was driving him 

‘crazy.’ [Appellant] was getting constant e[-]mails and in general it was much more 

stressful and overwhelming than his job up in Albany, New York, in which he was 

one of many coders for the hospital. He became stressed, and then became 

depressed and did not want to get out of bed and do his work and quit the job.” 
4

Dr. Custer noted that appellant felt better after he stopped work, but needed income. He 

diagnosed PTSD, residual symptoms only, mild dysthymia, and possible paranoid personality 

traits. Dr. Custer related that appellant’s PTSD symptoms had decreased since the shooting and 

that he currently had some residuals symptoms of PTSD, but did not meet the full criteria for a 

diagnosis. He found that his dysthymia or persistent depressive disorder “could potentially be 

related to [appellant’s] original 1982 work injury” as he lost his career and identity. Dr. Custer 

opined that appellant’s move caused an increase in symptoms, and noted that he was close to an 

uncle who had recently died, which also affected his present condition. He found that he could 

give and take supervision, but that deadlines might “provide some added stress to [appellant’s]

condition.” Dr. Custer opined that appellant could not work in large groups of people due to 

PTSD-related anxiety. He disagreed with Dr. Rosenbaum-Bloom’s finding that his uncle’s death 

and move to South Carolina failed to adversely affect his symptoms. In a work capacity evaluation 

for psychiatric/psychological conditions (Form OWCP-5a), Dr. Custer opined that appellant could 

work eight hours per day in an office setting or away from large groups of the public. He indicated 

that he could not work in law enforcement. 

In a March 3, 2016 attending physician’s report (Form CA-20), Dr. Rosenbaum-Bloom 

diagnosed PTSD, major depressive disorder, and an acute stress disorder. She checked a box 

marked “yes” indicating that the condition was caused or aggravated by employment. 

Dr. Rosenbaum-Bloom found that appellant was totally disabled beginning March 2015 to the 

present.

By decision dated March 23, 2016, OWCP denied modification of its March 2, 2004 

LWEC determination. It found that Dr. Custer’s opinion constituted the weight of the evidence 

and established that appellant had not sustained a material change in the nature and extent of his 

accepted work injury. OWCP noted that he had voluntarily resigned from employment.

Appellant, on April 27, 2016, requested a review of the written record by an OWCP hearing 

representative. 

In support of his request appellant submitted an April 22, 2016 report by Dr. RosenbaumBloom in which she diagnosed ongoing PTSD, major depressive disorder in partial remission, and 

dysthymia. She opined that the paranoid personality traits found by Dr. Custer resulted from 

hypervigilance associated with PTSD. Dr. Rosenbaum-Bloom advised that appellant’s 

employment-related PTSD remained active and affected his decisions and world view. She noted 

that his compensation was reduced in 2000 when he began working as a medical coder. 

Dr. Rosenbaum-Bloom opined that appellant’s new position as a medical coder in South Carolina 

exacerbated his symptoms of PTSD such that he could not perform the concentration necessary 

for the position. She found that he was currently totally disabled due to PTSD.

By decision dated October 12, 2016, OWCP’s hearing representative affirmed the 

March 23, 2016 decision. She found that appellant’s condition resulted from his move to South 

Carolina and the stress due to his position in private employment, which she found were 

intervening, nonemployment-related causes.

Dr. Rosenbaum-Bloom, in a report dated October 2, 2017, discussed appellant’s history of 

a 1982 employment injury and his subsequent employment in various low-stress positions. She 
5

advised that after he relocated to South Carolina the “chronicity of the PTSD caused him to 

decompensate to the point where he cannot maintain any work at present.” Dr. Rosenbaum-Bloom 

disagreed with Dr. Custer’s conclusions, noting that appellant had required continued treatment 

for PTSD since his injury, was not close to his uncle, and did not have a support network prior to 

his move. She related:

“Given the work incident, and the ongoing difficulties documented by [appellant’s]

physicians, the lack of resolution of his classic PTSD symptoms years after the 

incident, in spite of ongoing therapy and pharmacological management his recent 

regression is not medically unexpected. I think [appellant’s] lack of connection and 

his inability or desire to make friends or go out of his comfort zone is more a 

response to the PTSD than his move to Hilton Head[, SC] or the death of his uncle.” 

Dr. Rosenbaum-Bloom noted that medical reports demonstrated that appellant had 

received treatment for PTSD since the injury. She related: “I think that the retraining for 

[appellant] as a medical coder was well intentioned, but did not consider that the position may 

have been too demanding given his fragile mental and emotional state.” Dr. Rosembaum-Bloom

found that appellant was totally and permanently disabled from employment.

On October 10, 2017 appellant, through counsel, requested reconsideration. Counsel 

asserted that Dr. Custer erred in finding that appellant had few PTSD symptoms prior to his move. 

He maintained that Dr. Custer did not provide rationale for attributing appellant’s deteriorating 

condition solely to his move, especially given his prior relocations. Counsel contended that OWCP 

asked Dr. Custer a leading question when it asked if the unfamiliarity of appellant’s environment 

after his move aggravated his symptoms. He argued that, at a minimum, a conflict in medical 

opinion existed between Dr. Custer and Dr. Rosenbaum-Bloom. Counsel further asserted that the 

original LWEC determination failed to properly consider appellant’s ongoing emotional condition.

By decision dated March 30, 2018, OWCP denied modification of its March 2, 2004 

LWEC determination. It found that appellant’s relocation to South Carolina constituted an 

independent, intervening cause of the worsening of his condition.

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

remains undisturbed until properly modified.5

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 

 

4 See 5 U.S.C. § 8115 (determination of wage-earning capacity).

5 See M.K., Docket No. 17-1852 (issued August 23, 2018).
6

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

rehabilitated, or the original determination was, in fact, erroneous.6 

Once the work-related character of any injury has been established, the subsequent 

progression of that condition remains compensable so long as it is clear that the real operative 

factor is the progression of the compensable injury and so long as the worsening is not shown to 

have been produced by an independent, nonindustrial cause.7

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint a 

third physician who shall make an examination.8 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.9

ANALYSIS

The Board finds that this case is not in posture for decision.

OWCP accepted that appellant sustained an open scalp wound with complications, 

postconcussion syndrome, PTSD, and an adjustment reaction due to an October 7, 1982 

employment injury. Appellant stopped work on October 7, 1982. 

Thereafter, appellant returned to the workforce. By decision dated March 2, 2004, OWCP 

reduced his compensation as it found that his actual earnings beginning February 28, 2000 as a 

clinical data analyst 2 fairly and reasonably represented his wage-earning capacity. It paid 

appellant compensation for partial wage loss resulting from his accepted October 7, 1982 

employment injury.

On March 20, 2015 appellant requested a resumption of wage-loss compensation for total 

disability. He asserted that he was no longer able to work as a result of his October 7, 1982 

employment injury. OWCP denied modification of its LWEC determination. It noted that

Dr. Custer, an OWCP referral physician, attributed the increase in appellant’s disability to stress 

resulting from his relocation to South Carolina and new position in private employment as a 

medical coder for a local hospital, which it found constituted an independent, intervening cause.

 

6 See J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

7 See A. Larson, The Law of Workers’ Compensation § 10.01 (June 2010); see also W.M., Docket No. 16-1658 

(issued May 3, 2017).

8 5 U.S.C. § 8123(a).

9 20 C.F.R. § 10.321.
7

As noted, once the work-connected character of any injury has been established, the 

subsequent progression of that condition remains compensable so long as it is clear that the real 

operative factor is the progression of the compensable injury and so long as the worsening is not 

shown to have been produced by an independent, nonindustrial cause.10 The Board finds that a 

conflict in medical opinion exists regarding whether the worsening of appellant’s psychiatric 

condition resulted from stress arising from his private employment and relocation, an independent, 

nonindustrial cause, or constituted a natural progression of his underlying condition.

In a report dated March 3, 2015, Dr. Rosenbaum-Bloom advised that she began treating 

appellant in June 2014 after he moved into the area. She increased his medication as he had a 

recurrence of depression. Dr. Rosenbaum-Bloom noted that appellant experienced more 

depression and isolation while working from home as a medical coder. She opined that his move 

to Hilton Head, South Carolina had exacerbated his depression, noting that his uncle who lived in 

the area had recently died. Dr. Rosenbaum-Bloom found that appellant was totally disabled from 

work as a result of PTSD, which she attributed to the October 7, 1982 work injury. 

On May 20, 2015 Dr. Rosenbaum-Bloom diagnosed an acute stress reaction, PTSD, and 

an exacerbation of major depressive disorder. She noted that appellant’s relocation to Hilton Head, 

South Carolina had increased his depression and exacerbated his disability, but attributed his 

current symptoms to the 1982 work injury as it altered his response to his surroundings. 

Dr. Rosenbaum-Bloom opined that his original condition had worsened such that LWEC 

determination should be modified.

OWCP referred appellant to Dr. Custer for a second opinion examination. On February 18, 

2016 Dr. Custer noted that appellant’s position in South Carolina as a medical coder was 

significantly more stressful than his prior work in Albany, New York. He diagnosed residual 

symptoms of PTSD, mild dysthymia, and possible paranoid personality traits. Dr. Custer found 

that, while appellant had some residual PTSD, he did not meet the full criteria for the diagnosis. 

He advised that the dysthymia could be related to his 1982 employment injury due to his loss of 

career and identify. Dr. Custer opined that appellant’s move to South Carolina and the death of 

his uncle exacerbated his symptoms. He determined that appellant could work full time in an 

office environment as long as he was away from large groups of people and the position was not 

in law enforcement.

Dr. Rosenbaum-Bloom, on April 22, 2016, diagnosed ongoing PTSD, major depression in 

partial remission, and dysthymia. She opined that the paranoid personality symptoms found by

Dr. Custer resulted from hypervigilance attributable to appellant’s PTSD. Dr. Rosenbaum-Bloom 

advised that appellant’s work as a medical coder in South Carolina aggravated his condition and 

that he was now currently disabled. On October 2, 2017 she found that he decompensated in South 

Carolina after his relocation due to his chronic PTSD. Dr. Rosenbaum-Bloom disagreed with

Dr. Custer’s opinion that appellant’s uncle’s death and appellant’s move to South Carolina resulted 

in his symptoms, noting that he was not close to his uncle and had no friends in his prior locations. 

She found that appellant was totally disabled from employment and advised that his recent 

regression was not unexpected given the lack of resolution of his PTSD symptoms. 

 

10 See supra note 7; see also C.H., Docket No. 13-2179 (issued April 23, 2014).
8

Dr. Rosenbaum-Bloom opined that working as a medical coder may have been too demanding in 

view of his mental state. 

The Board finds that the case is not in posture for decision as a conflict in medical evidence 

between Dr. Custer, who found that appellant could work in an office setting and that any 

exacerbation of his emotional condition resulted solely from his relocation to South Carolina and 

change in private employment, and Dr. Rosenbaum-Bloom, who found that his condition had 

materially changed such that he was unable to work any duties and that the increase in disability 

resulted from his October 7, 1982 work injury. While Dr. Rosenbaum-Bloom determined that his 

move and resulting new position as a medical coder exacerbated his symptoms, she attributed his 

increased disability to chronic PTSD arising from his employment injury. 

If there is disagreement between OWCP’s referral physician and appellant’s physician, 

OWCP will appoint a third physician who shall make an examination.11 For a conflict to arise, the 

opposing physician’s viewpoints must be of virtually equal weight and rationale.12 The Board 

finds that the medical opinions of Dr. Custer and Dr. Rosenbaum-Bloom are of equal weight and 

are in conflict as to whether appellant’s accepted conditions have worsened such that he is unable 

to perform the duties of the constructed position.

As there exists an unresolved conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a), 

the case will be remanded for OWCP to refer appellant, together with the medical record and a 

statement of accepted facts, to an appropriate Board-certified physician to determine whether his 

accepted conditions have worsened such that he is unable to perform the duties of a clinical data 

analyst 2.

13

 The impartial medical examiner should address whether any increase from partial to 

total disability resulted from factors he encountered in his private employment, an independent, 

intervening cause, or constituted a natural progression of the compensable work injury.14 After 

such further development as OWCP deems necessary, it shall issue a de novo decision.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

11 5 U.S.C. § 8123(a); see V.G., Docket No. 17-1341 (issued July 16, 2018).

12 See M.R., Docket No. 17-0634 (issued July 24, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).

13 See B.C., Docket No. 18-0407 (issued September 17, 2018).

14 See supra note 7.
9

ORDER

IT IS HEREBY ORDERED THAT the March 30, 2018 decision of the Office of 

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

consistent with this opinion of the Board.

Issued: December 4, 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