United States Department of Labor

Employees’ Compensation Appeals Board

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S.J., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER -- MIAMI, Miami, FL, Employer

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Docket No. 17-0449

Issued: May 7, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

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 December 23, 2016 appellant filed a timely appeal from a December 2, 2016 decision 

of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of this case.

2

ISSUE

The issue is whether appellant met her burden of proof to modify a December 10, 1997 

loss of wage-earning capacity (LWEC) determination as of August 4, 2000.

 

1 5 U.S.C. § 8101 et seq.

2 The record provided to the Board includes evidence received after OWCP issued its December 2, 2016 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

FACTUAL HISTORY

On November 24, 1992 appellant, then a 36-year-old nursing assistant, filed a traumatic 

injury claim (Form CA-1) alleging that, on that date, she injured her left toe, foot, and leg at work 

due to a crushing injury involving a bed rail. OWCP accepted the claim for contusion of left toe,

contusion of left foot, lesion of plantar nerve, left foot plantar fibromatosis, crushing injury of left 

foot, bunion, left foot, and post-traumatic osteoarthritis, ankle and left foot. It authorized surgery, 

which appellant underwent in November 1993 and June 1995. 

By decision dated December 10, 1997, OWCP determined that the position of alternative 

duty nursing assistant, a position she had worked in since January 27, 1997, fairly and reasonably 

represented her wage-earning capacity and terminated her wage-loss compensation benefits. 

Appellant resigned from her federal employment on August 4, 2000. 

The last medical report on file in 2000 was an August 28, 2000 report from Dr. Thomas P. 

San Giovanni, an orthopedic surgeon specializing in the foot and ankle. Dr. San Giovanni noted 

that appellant’s magnetic resonance imaging (MRI) scan was relatively unremarkable and 

demonstrated postsurgical changes in the great toe and mild degenerative changes within the 

midfoot. He indicated that her examination was relatively unchanged and that she may have a 

symptomatic assessor navicular. Dr. San Giovanni recommended orthotics to relieve some of the 

strain upon her midfoot/forefoot. He also noted that she should consult a spine specialist regarding 

her back pain. 

In March 2 and April 16, 2001 reports, Dr. San Giovanni indicated that appellant’s 

examination and x-rays remained unchanged. He noted that there may be a peripheral neuropathy 

as a significant component of her pain and recommended a referral to a neurologist.3

On May 8, 2015 appellant filed Form CA-7 claim for compensation for total disability from

work during the period August 4, 2000 to April 3, 2015.

As no documentation was submitted with the claim, by development letter dated May 14, 

2015, OWCP informed appellant of the three criteria necessary for modifying a formal LWEC 

determination. It advised her that her physician must describe a worsening of her accepted 

condition and provide a well-rationalized medical opinion regarding the relationship between such 

changes and her increased disability. OWCP informed her that an increase in pain did not

constitute objective evidence of disability. It afforded appellant 30 days to provide the necessary 

documentation to support her claim. 

Medical reports dated February 23 through June 23, 2015 from Dr. Tania C. Turbay, a 

podiatrist, were received. Dr. Turbay documented appellant’s residual symptoms approximately 

every three weeks. She provided an assessment of closed fracture of metatarsal bone(s), closed 

 

3 During the period April 17, 2001 through November 25, 2014, the record is devoid of any evidence for medical 

treatment for the accepted conditions. Rather, the medical evidence of record indicates that appellant was receiving 

medical treatment for a nonwork-related back condition. 
3

fracture of one or more phalanges of foot, pain in soft tissue of limb, contusion of toes, primarily 

localized osteoarthrosis, ankle and foot, crushing injury of foot, lesion of plantar nerve, contusion 

of foot, and unspecified deformity of ankle and foot, acquired. 

On March 16, May 21, and June 23, 2015 Dr. Turbay performed ultrasound guided 

injection of appellant’s left second metatarsophalangeal joint (MPJ). She noted that appellant 

suffered from neuropathy to the left foot and that procedure was medically necessary. Dr. Turbay 

indicated that the pain had not been relieved by conservative modalities, it radiated to the left lower 

extremity with numbness, tingling, and paresthesia, it was severe and intractable and interfered

with appellant’s daily activities, physical activities, physical function, quality of life, sleep and 

mood. Appellant’s diagnoses were again noted as in prior reports.

By decision dated July 9, 2015, OWCP denied modification of its December 10, 1997 

LWEC determination and, therefore, found no basis for payment of wage-loss compensation 

benefits as of August 4, 2000. It found that there was no evidence to substantiate that appellant 

had met any of the three criteria for modifying a formal LWEC determination. 

On March 29, 2016 appellant requested reconsideration. 

Dr. Turbay performed ultrasound guided injection of appellant’s left second 

metatarsophalangeal joint (MPJ) on August 25 and June 23, 2015 and April 29, 2016. She noted 

appellant’s diagnoses, as in prior reports, and discussed appellant’s pain as the reason for the 

procedure.

Medical reports from Dr. Turbay dated September 15 through November 30, 2015 and 

January 8 through June 17, 2016 documented appellant’s residual symptoms and indicated that she 

had chronic pain. She continued to provide an assessment of closed fracture of metatarsal bone(s); 

closed fracture of one or more phalanges of foot, pain in soft tissue of limb, contusion of toes, 

primarily localized osteoarthrosis, ankle and foot, crushing injury of foot, lesion of plantar nerve, 

contusion of foot, and unspecified deformity of ankle and foot, acquired was provided. In her 

September 29, 2015 report, Dr. Turbay indicated that appellant had reached maximum medical 

improvement and provided a permanent impairment rating of two percent. 

In January 8, February 5, and March 4, 2016 reports, Dr. Turbay opined that appellant’s

reflex sympathetic dystrophy (RSD) was probably from the crush injury to the foot. She indicated 

that the post-traumatic arthritic changes were also causally related to the crush injury to the foot. 

Dr. Turbay indicated that appellant had chronic pain and neuropathy and impairment on 

ambulation due to severe deformity of the toes of the right foot. She provided 20 percent 

permanent impairment rating. 

In her April 29, 2016 reports and onward, Dr. Turbay provided an assessment of closed 

fracture of metatarsal bone(s), pain in unspecified foot, other hammer toe(s) (acquired), left foot,

unspecified acquired deformity of unspecific lower leg, closed fracture of one or more phalanges 

of foot, contusion of toe, primary localized osteoarthrosis, ankle and foot, crushing injury of foot, 

and lesion of plantar nerve and contusion of foot. 
4

In forms dated September 15, and 29, and November 30, 2015, January 8, February 5, and 

June 9, 2016, Dr. Turbay indicated that appellant was capable of sedentary desk-type work, only

with no weight bearing to affected foot. 

By decision dated August 4, 2016, OWCP denied modification of its July 9, 2015 decision. 

It found that none of the new evidence submitted discussed a material worsening of her accepted 

conditions which would prevent her from working the position of alternative duty nursing 

assistant. Appellant also had not demonstrated any of the three criteria for modifying an LWEC 

determination.

On August 27, 2016 appellant requested reconsideration. She stated that she was forced to 

resign or be terminated from the employing establishment because of the leave she had to use due 

to her job-related injury. 

Medical reports from Dr. Turbay dated August 24 and 25, September 29, and November 4, 

2016 were received. On August 24 and 25, 2016 appellant received an injection to the left 2nd MPJ 

joint and the plantar aspect of the left foot. Dr. Turbay indicated that appellant’s pain was the 

reason the procedure was medically necessary. In her August 25, September 29, and November 4, 

2016 reports, she continued to note appellant’s chronic pain. An assessment of closed fracture of 

metatarsal bones, closed fracture of one or more phlanges of foot, pain in soft tissues of limb, 

contusion of toes, primary localized osteoarthrosis, ankle and foot, crushing injury of toot, lesion 

of plantar nerve, contusion of foot and unspecified deformity of ankle and foot, acquired were 

provided. Dr. Turbay also submitted medication logs and disclosure and consent forms. 

In a status reporting form dated August 25, 2016, Dr. Turbay indicated that appellant was 

capable of sedentary work only. She noted that appellant reached maximum medical improvement 

on September 29, 2015. 

By decision dated December 2, 2016, OWCP denied modification of its prior decision. It

found that the evidence of record did not substantiate a worsening of appellant’s accepted 

conditions such that she could not perform the duties of alternate nursing assistant as of August 4, 

2000, the date appellant resigned from her federal employment. 

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 

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

 

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

5 Sharon C. Clement, 55 ECAB 552 (2004).
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rehabilitated, or the original determination was, in fact, erroneous.6 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.7

Rationalized medical opinion evidence is medical evidence that is based on a complete 

factual and medical background of reasonable medical certainty, and supported by medical 

rationale explaining the decision.8

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish that her 1997 

LWEC determination should be modified. 

OWCP accepted that appellant sustained a contusion of left toe, contusion of foot, lesion 

of plantar nerve, left foot plantar fibromatosis, crushing injury of left foot, bunion, left foot and 

post-traumatic osteoarthritis, ankle and left foot and authorized surgery, which appellant 

underwent in November 1993 and June 1995. On December 10, 1997 a formal LWEC 

determination was issued, finding that the position of alternative duty nursing assistant fairly and 

reasonably represented her wage-earning capacity. Appellant resigned from her federal 

employment on August 4, 2000. She subsequently claimed total disability as of August 4, 2000. 

OWCP found that appellant was not entitled to wage-loss compensation when she stopped 

work, as her wage-earning capacity had previously been established. As a formal LWEC 

determination has been issued, the decision will remain in place, 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 erroneous.9

Appellant has not alleged that she had been retrained or otherwise vocationally 

rehabilitated. She alleges that her accepted conditions worsened such that she is now totally 

disabled from work as a result of her accepted employment injuries. Since OWCP found that 

appellant could perform the duties of an alternative duty nursing assistant, the issue is whether 

there has been a material change in her work-related condition that would render her unable to 

perform those duties.10 This is primarily a medical question.11 In reviewing the medical evidence

of record, the Board finds appellant has failed to provide sufficient evidence to establish that a 

modification of the LWEC determination is warranted.12

 

6 Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000).

7

Id.

8

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

9 See supra note 4. 

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

11 R.S., Docket No. 15-1229 (issued October 2, 2015).

12 See R.L., Docket No. 15-1337 (issued January 27, 2016); J.I., Docket No. 15-0516 (issued September 21, 2015).
6

Evidence from Dr. San Giovanni during the years 2000 to 2001 indicated that appellant’s 

examination and x-rays remained unchanged. His reports are, therefore, insufficient to establish a 

material worsening of the accepted conditions and that appellant could not perform her modified 

position due to her employment injury.13

The multiple reports from Dr. Turbay commencing in 2015 do not establish a material 

worsening of an employment-related condition. Dr. Turbay’s reports do not contain a rationalized 

opinion explaining how the residuals from appellant’s employment injury prevented her from 

performing the duties as an alternate nursing assistant on the dates in question. Although

Dr. Turbay provided examination findings, documented the chronicity of appellant’s pain, and 

provided injections, she did not offer an opinion on whether appellant’s accepted conditions had 

materially worsened preventing her from performing the duties of alternate nursing assistant. An 

increase in pain alone does not constitute objective evidence of disability.14 

In her January 8, February 5, and March 4, 2016 reports, Dr. Turbay opined that appellant 

had RSD “probably” due to the crush injury to the foot. However, OWCP did not accept RSD,

and the opinion itself is equivocal and, therefore, of limited probative value.15 Dr. Turbay also 

opined that the post-traumatic arthritic changes were causally related to the crush injury to the foot, 

but offered no medical rationale for her opinion.16 While she also indicated that appellant had 

chronic pain and neuropathy and impairment on ambulation due to severe deformity of the toes of 

the right foot and provided an impairment rating, she did not discuss whether this was due to a 

worsening of the accepted conditions and prevented appellant from working the position of 

alternate nursing assistant. A mere conclusory opinion provided by a physician without the 

necessary rationale explaining how or why the work injury was sufficient to result in the diagnosed 

medical condition is insufficient to meet appellant’s burden of proof to establish her claim.17 

Furthermore, Dr. Turbay does not address in any of her reports appellant’s ability to work in the 

alternate nursing assistant position.18 

As the medical evidence of record during the claimed period fails to provide support for a 

material worsening of the accepted employment-related conditions such that appellant was 

precluded from performing her duties as an alternate nursing assistant, appellant has not met her 

burden of proof. 

The Board finds that the evidence of record does not establish that appellant’s accepted 

work-related medical conditions have materially changed or worsened, that the original LWEC

determination was in error, or that she had been retrained or otherwise vocationally rehabilitated. 

 

13 See A.N., Docket No. 16-0166 (issued February 1, 2016). 

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

Decisions, Chapter 2.1501.5(b)(1)(b) (June 2013).

15 J.E., Docket No. 16-0509 (issued September 16, 2016).

16 See B.T., Docket No. 13-0138 (issued March 20, 2013).

17 See J.D., Docket No. 14-2061 (issued February 27, 2015).

18 Supra note 12. 
7

Thus appellant has not established that the December 10, 1997 LWEC determination should be 

modified. 

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

evidence or argument, at any time before OWCP.

CONCLUSION

The Board finds that appellant has failed to meet her burden of proof to modify the 

December 10, 1997 LWEC determination as of August 4, 2000.

ORDER

IT IS HEREBY ORDERED THAT the December 2, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: May 7, 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