United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.K., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Levittown, PA, Employer

__________________________________________

)

)

)

)

)

)

)

)

Docket No. 17-1852

Issued: August 23, 2018

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 August 30, 2017 appellant, through counsel, filed a timely appeal from an April 13, 

2017 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.

3

 

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.

3 The record provided to the Board includes evidence received after OWCP issued its April 13, 2017 decision. The 

Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the 

Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

The issue is whether appellant has met her burden of proof to modify OWCP’s January 20, 

2016 loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On April 24, 1991 appellant, then a 34-year-old letter carrier, filed a traumatic injury claim 

(Form CA-1) alleging that she sustained a right shoulder injury while placing mail into a mailbox

on that date. OWCP accepted that appellant sustained a right shoulder strain, right brachial plexus 

neuropathy, and right thoracic outlet syndrome during the performance of her federal duties.

Appellant stopped work on April 26, 1991. Thereafter she returned to modified part-time work 

intermittently until July 14, 1997, when she stopped work and did not return. On May 30, 1997 

OWCP expanded acceptance of the claim to include right thoracic outlet syndrome.4 Effective 

August 16, 1997, it placed appellant on the periodic compensation rolls for total disability resulting 

from the accepted employment injury.5 

In 2001 appellant came under the care of Dr. Scott M. Fried, an osteopath and Boardcertified orthopedic surgeon, for ongoing problems with her upper extremities. 

OWCP referred appellant for vocational rehabilitation in June 2012, following an April 20, 

2012 second opinion examination by Dr. Robert Draper, a Board-certified orthopedic surgeon, 

who concluded that appellant was capable of working eight hours per day and lifting up to 50 

pounds. As the employing establishment was unable to accommodate appellant, the vocational 

rehabilitation counselor identified several positions which were medically suitable and reasonably 

available, including the constructed position of sales attendant, a position listed in the Department 

of Labor’s Dictionary of Occupational Titles (DOT) and bearing the DOT # 299.677.010. The 

physical duties of the position included: obtaining merchandise from stockroom when 

merchandise was not on the floor, arranging stock on shelves or racks in sales area, inventorying

stock, keeping merchandise in order, and marking or ticketing merchandise. The position was 

characterized as light duty, which meant an occasional strength level of no greater than 20 pounds. 

On May 14, 2014 OWCP referred appellant to Dr. Noubar Didizian, a Board-certified 

orthopedic surgeon, for a second opinion examination to determine whether she continued to suffer 

from work-related residuals and whether she was capable of working eight hours per day as a sales 

attendant. In his June 25, 2014 report, Dr. Didizian opined that appellant no longer had any workrelated residuals of the accepted conditions and no longer required any medical treatment. He 

noted that appellant had multiple diagnoses which were not related to the accepted injury.

Dr. Didizian opined that appellant had reached maximum medical improvement and was capable 

of working eight hours a day as a sales attendant, DOT # 299.677.010. 

 

4 OWCP also authorized surgery for right brachial plexus neuropathy. However, the case record does not indicate 

that appellant underwent the authorized surgical procedure.

5 On February 4, 1998 OWCP notified counsel that a left brachial plexopathy condition was not work related and 

denied a requested surgery. 
3

In his reports dated July 31 and September 3, 2014, Dr. Fried diagnosed right shoulder 

capsulitis, left shoulder rotator cuff tendinitis and capsulitis, carpal tunnel median neuropathy of 

the bilateral upper extremities, radial neuropathy of right, sympathetically-mediated pain 

syndrome of the bilateral upper extremities with reactive depression, fibromyalgia syndrome, 

brachial plexopathy/cervical radiculopathy right and left with long thoracic neuritis, and bilateral 

posterior occipital neuralgia. He opined that appellant continued to struggle with symptoms from 

the work-related injury as well as the overuse symptoms on the left. Dr. Fried also opined that 

appellant remained limited and could not return to regular work activities. 

OWCP determined that a conflict of medical opinion existed between Dr. Fried and

Dr. Didizian with regard to whether she continued to suffer residuals from the work injury and was 

capable of returning to work in any capacity. It referred appellant, along with the medical record 

and a statement of accepted facts (SOAF), to Dr. Andrew Sattel, a Board-certified orthopedic 

surgeon, for an impartial medical evaluation. 

The SOAF, at the time of Dr. Sattell’s referral, was dated April 11, 2012 with an addendum 

dated May 14, 2014. The April 11, 2012 SOAF listed the accepted conditions as a right shoulder 

strain and brachial plexus neuropathy. Concurrent conditions listed which were not accepted as 

work related included: carpal tunnel syndrome, hypothyroidism, endometriosis, headaches, 

fracture of coccyx (1997 motor vehicle accident), and a torn right rotator cuff in March 1990, “a 

year prior to the work injury.” The May 14, 2014 addendum noted that appellant was examined 

on April 20, 2012 by Dr. Draper, that her current treating physician was Dr. Fried, and that she 

had remained off work completely since 1996. 

In his November 19, 2014 report, Dr. Sattel noted the history of injury, his review of the 

medical records, and presented examination findings. He noted that there was no x-ray or magnetic 

resonance imaging scan films for personal review. Based on the present history obtained and the 

medical records provided, Dr. Sattel indicated that appellant was provided with an impression of 

right shoulder pain and brachial plexopathy -- thoracic outlet at the time of her initial incident and 

subsequent evaluations. He indicated that the right shoulder had some residual symptoms of 

impingement and the present objective findings for peripheral neuropathy or brachial plexopathy 

were unremarkable. Dr. Sattel indicated that, while appellant had some point tenderness over the 

supra and infraclavicular fossa, it did not reproduce paresthesias and the remaining evaluation for 

peripheral neuropathy was unremarkable. From an orthopedic standpoint, he opined that appellant 

had achieved maximum medical improvement and there was no need for further diagnostic 

workup, outpatient therapy, or any surgical intervention. Dr. Sattel opined that appellant could 

perform light work activities with restrictions, minimizing overhead work with the right arm, 

particularly with resistance. A November 19, 2014 estimated physical capacities form indicated 

that appellant could work eight hours a day in a light-duty capacity with no overhead lifting with 

her right arm. 

In a December 17, 2014 letter, OWCP informed counsel that appellant was examined by

Dr. Sattel on November 19, 2014 and that he would be provided a copy of the report once it was 

received. It enclosed the SOAFs, questions, the conflict statement, and a copy of the referral letter 

to Dr. Sattel.

In a January 7, 2015 letter, Dr. Sattel indicated that he was provided with a SOAF which 

included a synopsis of appellant’s diagnoses and various physical activities observed from 
4

October 6, 2009 through November 23, 2011. He indicated that a review of the SOAF would not 

alter his November 19, 2014 opinion. 

On January 15, 2015 OWCP requested that Dr. Sattel provide a supplemental report 

regarding appellant’s work capabilities and complete the work capacity evaluation (OWCP-5c) 

form. In a January 28, 2015 supplemental report, Dr. Sattel stated that he reviewed SOAFs dated 

April 11, 2012 and May 14, 2014 which did not alter his opinion that appellant was capable of 

working a full eight-hour day. In a January 28, 2015 OWCP-5c form, Dr. Sattel indicated that 

appellant could work sedentary to light duty, up to 20 pounds lifting or carrying, with no overhead 

lifting with right arm. 

On June 25, 2015 OWCP reopened appellant’s case in vocational rehabilitation to update 

the availability and wages of the previously identified position of sales attendant. On July 10, 

2015 the vocational rehabilitation counselor indicated that the sales attendant position, which was 

classified as light duty, existed in reasonable numbers and was reasonably available for appellant. 

An undated salary of $16,950.00 was also provided. 

On September 29, 2015 OWCP issued a notice of proposed reduction in appellant’s wageloss compensation under 5 U.S.C. §§ 8106 and 8115. It advised appellant that she was only 

partially disabled and that the position of sales attendant was medically and vocationally consistent 

with her medical limitations and work experience. OWCP found that appellant was capable of 

earning wages at the rate of $325.96 per week as a sales attendant and that the position was 

reasonably available within her commuting area. It provided an attachment detailing the 

application of the Shadrick formula,6 which has been codified at 20 C.F.R. § 10.403. Appellant 

was afforded 30 days to submit evidence and argument challenging the proposed action.

In an October 7, 2015 report, Dr. Fried continued to report on appellant’s bilateral upper 

extremity conditions. 

An October 7, 2015 neuromusculoskelatal ultrasound procedure report indicated positive 

scans for carpal tunnel and compression neuropathy, brachial plexus left, brachial plexus right. No 

significant change in the right shoulder was noted.

On October 15, 2015 counsel acknowledged receipt of the September 29, 2015 notice of 

proposed reduction, although he had not been provided a copy by OWCP. He requested a copy of

Dr. Sattel’s report, with evidence that he had been properly selected as an impartial medical 

examiner. By letters dated November 10 and 13, 2015, OWCP provided the requested 

information. 

In an October 20, 2015 report, Dr. Sofia Lam, a Board-certified anesthesiologist, 

diagnosed cervical sprain/strain, brachial plexopathy, right more than left side, cervical 

radiculopathy, and cervical facet joint pathology bilaterally. Cervical transforaminal epidurals and 

facet joint injections were recommended.

On November 20, 2015 counsel requested a copy of the Labor Market Survey, the 

vocational information, and a copy of the September 29, 2015 notice of proposed reduction. He

 

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

advised that he was not copied on the September 29, 2015 notice of proposed reduction. On 

December 15, 2015 OWCP mailed copies of the requested information to appellant and counsel. 

In a January 4, 2016 letter, counsel requested that OWCP reissue the notice of proposed 

reduction with full appeal rights as they were not issued with the proposed decision. He also 

argued that, since he was not notified of the September 29, 2015 notice of proposed reduction, that 

decision was not considered valid under 20 C.F.R. § 10.127. 

By decision dated January 22, 2016, OWCP reduced appellant’s compensation, effective 

February 2, 2016, based on her capacity to earn wages as a sales attendant, DOT # 299.677.010, 

at the rate of $325.96 per week. It found that the evidence of record showed that appellant was 

vocationally and physically capable of working as a sales attendant, based on Dr. Sattel’s reports 

which were accorded the weight of the medical evidence. OWCP applied the Shadrick formula to 

adjust her compensation.

On January 13, 2017 counsel requested reconsideration. He stated that appellant had

accepted conditions of brachial plexus neuropathy, bilateral thoracic outlet syndrome, and right 

shoulder strain. Counsel alleged that the SOAFs did not include the thoracic outlet syndrome as 

an accepted condition. He also indicated that, while the SOAF noted several concurrent 

conditions, it did not indicate other conditions which had been diagnosed prior to her accepted 

injury. Counsel also alleged that the proposed position of sales attendant was constructed before

Dr. Sattel’s referee examination and that Dr. Sattel was not asked, nor did he comment on, the 

propriety of the position proposed. He also argued that, while he received copies of Dr. Sattel’s 

referee reports and the labor market study, he never received a description of the proposed position 

and the information from the rehabilitation counselor from 2013 through 2015. Counsel further 

contended that the demands of the sales attendant position were not medically suitable to the 

restrictions of both Dr. Fried and Dr. Sattel and that appellant’s other conditions must be 

considered as they prevented her from being gainfully employed. In a January 17, 2017 letter, he

referenced Dr. Fried’s January 16, 2017 report as support that the constructed position was outside 

of appellant’s medical capacities. Appellant also provided a January 12, 2017 letter, in which she 

provided reasons why she was unable to perform the duties of the constructed position. 

Reports of ultrasound examination of appellant’s right brachial plexus and right median 

nerve and carpal tunnel dated January 13, 2017 were provided along with a January 28, 2016 note 

from the Suburban Pain Control Center.

Dr. Fried reported on appellant’s condition in reports dated November 10 and

December 22, 2016, and February 14, 2017. In his January 16, 2017 report, he disagreed with

Dr. Sattel’s opinion that appellant could perform light-duty work with restrictions of overhead 

lifting of her right arm. Dr. Fried indicated that Dr. Sattel’s opinion was not well rationalized or 

supported by the medical evidence. Specifically, Dr. Sattel did not offer objective evidence which 

discounted or discussed the previously submitted evidence of ongoing pathology as well as 

appellant’s limitations in multiple notes, reports, and examinations as recent as 

November 10, 2016. Dr. Fried indicated that Dr. Sattel noted positive findings in the right 

shoulder, but he found appellant did not have objective findings of peripheral neuropathy or 

brachial plexopathy despite positive EMG nerve conduction studies and neuromusculoskeletal 

ultrasound evaluations of record, of which he was aware. Additionally, Dr. Sattel did not perform 

the standard tests on the right side to evaluate for brachial plexus injury including Ross test, 
6

Hunter’s test, Wright’s test, Adoson’s test, or any of the other elevated arm stress tests. Thus,

Dr. Fried concluded that Dr. Sattel could not fairly opine as to whether or not a brachial plexus 

injury on the right side existed or not. He also reviewed the job description for sales attendant and 

opined that appellant was unable to perform such a job with her accepted conditions. Specifically,

Dr. Fried indicated that the constructed position fell outside of the limitations as outlined on the 

functional capacity evaluation. He opined that appellant had ongoing evidence of her accepted 

work injuries which disabled her from regular work and activities. 

By decision dated April 13, 2017, OWCP denied modification of its January 22, 2016 

LWEC determination. It found that appellant had failed to submit evidence sufficient to satisfy 

the criteria for modification and that the weight of the medical opinion evidence rested with

Dr. Sattel. 

On appeal counsel asserts that the SOAF provided to the impartial medical specialist failed 

to include all the accepted conditions and therefore the LWEC determination was erroneous.

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 it meets the requirements for modification.8 Chapter 

2.1501 of OWCP’s procedures contains provisions regarding the modification of a formal LWEC.9 

The relevant part provides that a formal LWEC 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.10 It further provides that the party seeking modification of a formal 

LWEC decision has the burden to prove that one of these criteria has been met.11

Section 8123(a) of FECA 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.12 The implementing regulations 

provide 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 

 

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

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

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

2.1501 (June 2013).

10 Id. at Chapter 2.1501.3(a) (June 2013).

11 Id. at Chapter 2.1501.4 (June 2013).

12 5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).
7

will select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.13 In situations where there exist opposing medical reports of virtually equal weight 

and rationale and the case is referred to an impartial medical specialist 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.14

OWCP’s procedures provide as follows: 

“The [claims examiner] is responsible for ensuring that the SOAF is correct, 

complete, unequivocal, and specific. When the [district medical adviser], second 

opinion specialist, or referee physician renders a medical opinion based on an 

SOAF which is incomplete or inaccurate or does not use the SOAF as the 

framework in forming his or her opinion, the probative value of the opinion is 

seriously diminished or negated altogether.”

15

ANALYSIS

The Board finds that appellant has established that the January 20, 2016 LWEC 

determination was erroneously issued. 

The Board finds that Dr. Sattel’s opinion was based on an inaccurate SOAF. In securing 

the opinion of a medical specialist, Chapter 2.809.3 of OWCP’s procedures provides that a SOAF 

and development questions are to be prepared by the claims examiner for use by the physician.16 

The claims examiner is required to set forth the relevant facts of the case, including the employee’s 

date of injury, age, job held when injured, the mechanism of the injury, and any conditions claimed 

or accepted by OWCP.17 Dr. Sattel was provided a SOAF dated April 11, 2012 with an addendum 

dated May 14, 2014. The April 11, 2012 SOAF listed the accepted conditions only for a right 

shoulder strain and brachial plexus neuropathy. It did not include the accepted right thoracic outlet 

syndrome, which was accepted in 1997. The April 11, 2012 SOAF was therefore improper as it 

did not include all the accepted conditions. The May 14, 2014 addendum to the SOAF only noted 

that appellant was examined by Dr. Draper on April 20, 2012 and that Dr. Fried was her treating 

 

13 20 C.F.R. § 10.321; S.R., Docket No. 09-2332 (issued August 16, 2010); Elaine Sneed, 56 ECAB 373 (2005).

14 Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

15 Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3 

(October 1990).

16 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.3 

(September 2009).

17 Id.; see A.C., Docket No. 09-0389 (issued October 7, 2009).
8

physician, this SOAF did not list any accepted conditions. Dr. Sattel’s report is, therefore, not 

entitled to the special weight of the medical evidence.

18

Once OWCP undertakes development of the record, it has the responsibility to do so in a 

proper manner.19 Given the error on the SOAF on which Dr. Sattel’s report was based, it should 

not have afforded his opinion special weight on the issue of appellant’s wage-earning capacity. 

Thus, appellant has shown that the January 20, 2016 LWEC determination was erroneous.

20

CONCLUSION

The Board finds appellant has met her burden of proof to modify the January 20, 2016 

LWEC determination.

 

18 Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, at Chapter 2.809 explains that 

the SOAF is one of the most important documents a claims examiner (CE) prepares. It is the written summary of the 

CE’s findings of facts. It serves as a factual frame of reference for the medical specialist, the CE or other case reviewer. 

When it is used by physicians who base their medical opinions solely on the information presented in the SOAF, the 

outcome of a claim may depend on its completeness and accuracy. Therefore, the SOAF must clearly and accurately 

address the relevant information.

19 Melvin James, 55 ECAB 406 (2004).

20 In light of this disposition, the Board will not review the evidence submitted on reconsideration to determine 

whether the other criteria for modification have been met.
9

ORDER

IT IS HEREBY ORDERED THAT the April 13, 2017 decision of the Office of Workers’

Compensation Programs is reversed.

Issued: August 23, 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