United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.M., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Homerville, GA, Employer

__________________________________________

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Docket No. 20-1038

Issued: March 10, 2021

Appearances: Case Submitted on the Record

Paul H. Felser, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION

On April 16, 2020 appellant, through counsel, filed a timely appeal from an October 30, 

2019 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 Board notes that, following the October 30, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to expand the acceptance 

of her claim to include additional conditions as causally related to her accepted April 23, 2014

employment injury; and (2) whether appellant has met her burden of proof to modify OWCP’s 

December 14, 2017 loss of wage-earning capacity (LWEC) determination.

FACTUAL HISTORY

On April 23, 2014 appellant, then a 62-year-old rural carrier, filed a traumatic injury claim 

(Form CA-1) alleging that, on that date, she sustained a left arm injury when she lifted a package 

and felt a twinge in her arm while in the performance of duty. She stopped work on April 24, 2014. 

OWCP accepted appellant’s claim for left shoulder sprain and impingement of the left rotator cuff. 

It paid her wage-loss compensation for disability from work on the supplemental rolls commencing

June 9, 2014 and on the periodic rolls commencing June 29, 2014.

The findings of left shoulder x-rays obtained on April 23, 2014 showed degenerative 

changes of the acromioclavicular joint with narrowing of the rotator interval. There was no acute 

fracture dislocation.

On October 9, 2014 appellant underwent OWCP-authorized left shoulder surgery, 

including major debridement of glenohumeral joint, biceps tenotomy, subacromial decompression, 

and distal clavicle resection.

The findings of a November 18, 2014 magnetic resonance imaging (MRI) scan of 

appellant’s cervical region contained an impression of slight posterior disc bulges with minimal 

indentation of the anterior thecal sac at the C5-6 and C6-7, without neural foraminal stenosis.

In a report dated November 18, 2015, Dr. Brook G. Bearden, a Board-certified orthopedic 

surgeon, indicated that appellant could perform light-duty work with no lifting over 20 pounds

with the affected left arm, and no outstretched or overhead arm use.

In a report dated May 18, 2016, Dr. Bearden again advised that appellant could return to 

light-duty work with no lifting over 20 pounds using the affected left arm, as well as no 

outstretched or overhead arm use.

In July 2016 OWCP referred appellant for participation in an OWCP-sponsored vocational 

rehabilitation program designed to return her to work.

In a January 4, 2017 report, Dr. Bearden indicated that appellant had a 20-pound lifting 

restriction and a prohibition from outstretched or overhead arm use. He noted no repetitive use of 

the left arm, including typing. After appellant’s vocational rehabilitation counselor requested 

clarification of the typing restriction, Dr. Bearden clarified that appellant was able to engage in 

intermittent or occasional typing and data entry.

In a January 24, 2017 report, Dr. Terry Persaud, a Board-certified anesthesiologist, 

diagnosed chronic left shoulder pain, status post subacromial decompression (with rotator cuff tear 

and acromioclavicular arthritis), muscle spasms, myofascial pain, depression, cervical disc bulge,

and insomnia. He produced a similar report on September 25, 2017.
3

The attempt to return appellant to work was unsuccessful and, on October 11, 2017, her 

rehabilitation counselor selected the position of order clerk from the Department of Labor’s 

Dictionary of Occupational Titles (DOT) as vocationally and medically suitable. The position 

(DOT No. 249-362.026) was clerical in nature and involved processing customers’ orders for 

merchandise/materials by using a telephone, computer, and/or calculating machine. An order clerk

was required to type data into a computer and to type or write out order forms by hand. The 

position was classified as sedentary and its physical requirements included occasionally lifting up 

to 10 pounds.4 A state labor survey revealed that the position was reasonably available in 

appellant’s commuting area at an average weekly salary of $313.85.

By notice dated October 24, 2017, OWCP advised appellant that it proposed to reduce her 

wage-loss compensation, under 5 U.S.C. § 8106 and 5 U.S.C. § 8115, because she had the capacity 

to earn $313.85 in weekly wages in the constructed position of order clerk. It informed her that 

the opinion of Dr. Bearden represented the best assessment of her capacity to work and that her 

vocational rehabilitation counselor properly determined that she was vocationally and medically 

capable of working as an order clerk.

In a letter dated November 9, 2017, counsel argued that OWCP had not adequately 

considered that appellant had additional medical conditions which prevented her from working as 

a customer order clerk, including depression and anxiety.

Appellant submitted an October 18, 2016 report from Dr. Persaud who diagnosed chronic 

left shoulder pain, status post subacromial decompression (with rotator cuff tear and 

acromioclavicular arthritis), muscle spasms, myofascial pain, depression, cervical disc bulge, and 

insomnia. He indicated that he would defer to Dr. Bearden regarding what component of her 

current condition was attributable to her April 23, 2014 injury. Dr. Persaud noted, “Additionally, 

it appears that her depression may have been precipitated by her current occupational injury and 

continues to require ongoing treatment.”

In an October 18, 2017 report, Dr. Bearden indicated that appellant’s medical condition 

had not changed. In an October 26, 2017 report, Dr. Persaud diagnosed chronic left shoulder pain, 

status post subacromial decompression (with rotator cuff tear and acromioclavicular arthritis), 

muscle spasms, myofascial pain, depression, cervical disc bulge, and insomnia. 

By decision dated December 14, 2017, OWCP issued an LWEC determination, reducing

appellant’s wage-loss compensation, effective December 15, 2017, based on her capacity to earn 

$313.85 in weekly wages as a customer order clerk.

On December 26, 2017 appellant, through counsel, requested a hearing before a 

representative of OWCP’s Branch of Hearings and Review.

Appellant subsequently submitted a November 30, 2017 report from Dr. Persaud who 

diagnosed chronic left shoulder pain, status post subacromial decompression (with rotator cuff tear 

 

4 Sedentary work, according to the DOT, involves sitting up to six hours in an eight-hour workday, but may involve 

walking or standing for brief periods of time up to two hours in an eight-hour workday. Occasionally performing an 

activity means that the activity is performed up to 1/3 of the time during the workday. 
4

and acromioclavicular arthritis), muscle spasms, myofascial pain, depression, cervical disc bulge,

and insomnia.

During the hearing held on June 18, 2018, counsel argued that OWCP had not adequately 

considered all of appellant’s conditions in assessing the suitability of the order clerk position, 

especially with respect to her depression and anxiety conditions. Counsel claimed that the 

acceptance of appellant’s claim should be expanded to include additional conditions causally 

related to the accepted April 23, 2014 employment injury, particularly those related to her 

emotional and cervical conditions.

In a July 11, 2018 report, Dr. Wendy Vandemark, a Board-certified psychiatrist, opined 

that, due to psychological factors and pain, appellant was completely unable to work. She advised

that appellant’s current diagnoses were mood disorder and generalized anxiety, and that her 

symptoms included depression, anxiety, crying spells, not leaving her home except for doctor’s 

appointments, chronic pain, fatigue, lack of good hygiene, trouble sleeping, and trouble focusing.

By decision dated September 4, 2018, OWCP’s hearing representative affirmed the 

December 14, 2017 LWEC determination. The hearing representative further found that appellant 

had not submitted sufficient medical evidence to establish that the acceptance of her claim should 

be expanded to include additional conditions causally related to the accepted April 23, 2014 

employment injury.

On September 3, 2019 appellant, through counsel, requested reconsideration of the 

September 4, 2018 decision.

Appellant submitted additional medical evidence in support of her claim that the 

December 14, 2017 LWEC determination should be modified. In an October 23, 2018 report,

Dr. Persaud diagnosed chronic left shoulder pain, status post subacromial decompression (with 

rotator cuff tear and acromioclavicular arthritis), muscle spasms, myofascial pain, depression 

(requiring ongoing psychiatric treatment), cervical disc bulge, and insomnia.

In September 18, 2018 and August 6, 2019 reports, Dr. Bearden diagnosed left rotator cuff 

capsule strain and discussed appellant’s medical treatment. In an August 22, 2019 report,

Dr. Persaud diagnosed chronic left shoulder pain status post subacromial decompression (with 

rotator cuff tear and acromioclavicular arthritis), cervical degenerative disc disease (with C2-3, 

C4-5, C5-6 and C6-7 disc bulges), muscle spasms, myofascial pain, insomnia, and depression.

By decision dated October 30, 2019, OWCP denied modification of the September 4, 2018 

decision. 

LEGAL PRECEDENT -- ISSUE 1

When an employee claims that, a condition not accepted or approved by OWCP was due 

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

causally related to the employment injury.5

 

5

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B., 

Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004). 
5

The medical evidence required to establish causal relationship between a claimed specific 

condition and/or period of disability and an employment injury is rationalized medical opinion 

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

background of the claimant, must be one of reasonable medical certainty, and must be supported 

by medical rationale explaining the nature of the relationship between the diagnosed condition and 

the specific employment factors identified by the claimant.6

The Board has held that when the medical evidence supports an aggravation or acceleration 

of an underlying condition precipitated by working conditions or injuries, such disability is 

compensable.7 However, the normal progression of untreated disease cannot be stated to constitute 

“aggravation” of a condition merely because the performance of normal work duties reveals the 

underyling condition.8

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to expand the acceptance 

of her claim to include additional conditions as causally related to the accepted April 23, 2014 

employment injury.

In a July 11, 2018 report, Dr. Vandemark noted that appellant’s current diagnoses were 

mood disorder and generalized anxiety, and that her symptoms included depression, anxiety, 

crying spells, not leaving her home except for doctor’s appointments, chronic pain, fatigue, lack 

of good hygiene, trouble sleeping, and trouble focusing. The case record also contains a series of 

reports in which Dr. Persaud diagnosed conditions other than the accepted left shoulder sprain and 

left rotator cuff impingement. In an October 18, 2016 report, he diagnosed chronic left shoulder 

pain, status post subacromial decompression (with rotator cuff tear and acromioclavicular 

arthritis), muscle spasms, myofascial pain, depression, cervical disc bulge, and insomnia. 

Dr. Persaud indicated that he would defer to Dr. Bearden regarding what component of her current 

condition was attributable to her April 23, 2014 injury. He noted, “[a]dditionally, it appears that 

her depression may have been precipitated by her current occupational injury and continues to 

require ongoing treatment.” In a November 30, 2017 report, Dr. Persaud diagnosed chronic left 

shoulder pain, status post subacromial decompression (with rotator cuff tear and acromioclavicular 

arthritis), muscle spasms and myofascial pain, depression, cervical disc bulge, and insomnia. In 

an August 22, 2019 report, he diagnosed chronic left shoulder pain, status post subacromial 

decompression (with rotator cuff tear and acromioclavicular arthritis), cervical degenerative disc 

disease (with C2-3, C4-5, C5-6, and C6-7 disc bulges), muscle spasms and myofascial pain, 

insomnia, and depression.

Although Dr. Persaud suggested in his October 18, 2016 report that appellant’s depression 

was related to the April 23, 2014 employment injury, his opinion in this regard is of limited probative 

value because it is speculative in nature.9 The Board finds that these reports are of no probative 

value regarding appellant’s expansion claim because they do not contain an opinion on causal 

 

6 See E.J., Docket No. 09-1481 (issued February 19, 2010).

7 C.H., Docket No. 17-0488 (issued September 12, 2017).

8

Id.

9 See E.B., Docket No. 18-1060 (issued November 1, 2018).
6

relationship. The reports do not contain a clear opinion that the observed conditions were casually 

related to the April 23, 2014 employment injury. The Board has held that medical evidence that 

does not offer a clear opinion regarding the cause of an employee’s condition is of no probative value 

on the issue of causal relationship.10 Therefore, the submission of these reports are insufficient to 

establish appellant’s expansion claim.

As the medical evidence of record is insufficient to establish causal relationship between 

appellant’s additional diagnosed conditions and the accepted employment injury, the Board finds 

that she has not met her burden of proof.

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

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607.

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim it has the burden of proof to justify termination or 

modification of compensation benefits.11 An injured employee who is either unable to return to 

the position held at the time of injury or unable to earn equivalent wages, but who is not totally 

disabled for all gainful employment, is entitled to compensation computed based on his or her 

LWEC.12 An employee’s actual earnings generally best reflect his or her wage-earning capacity.13 

Absent evidence that actual earnings do not fairly and reasonably represent the employee’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity.14

 But if actual earnings do not fairly and reasonably represent the employee’s 

wage-earning capacity or the employee has no actual earnings, then wage-earning capacity is 

determined with due regard to the nature of the injury, the degree of physical impairment, the 

employee’s usual employment, age, qualifications for other employment, the availability of 

suitable employment and other factors and circumstances that may affect wage-earning capacity 

in his or her disabled condition.15 

OWCP must initially determine the employee’s medical condition and work restrictions 

before selecting an appropriate position that reflects his or her vocational wage-earning capacity.16 

The medical evidence OWCP relies upon must provide a detailed description of the employee’s 

condition and the evaluation must be reasonably current.17 Where suitability is to be determined 

based on a position not actually held, the selected position must accommodate the employee’s 

 

10 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11 James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

12 5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

13 Hayden C. Ross, 55 ECAB 455, 460 (2004).

14 Id.

15 5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

16 M.A., 59 ECAB 624, 631 (2008).

17 Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a 

Constructed Position, Chapter 2.816.4d (June 2013).
7

limitations from both injury-related and preexisting conditions, but not limitations attributable to 

post-injury or subsequently acquired conditions.18 

When OWCP makes a medical determination of partial disability and of specific work 

restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for 

selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles

(DOT) or otherwise available in the open labor market that fits the employee’s capabilities with 

regard to his or her physical limitations, education, age and prior experience.19 Once this selection 

is made, a determination of wage rate and availability in the open labor market should be made 

through contact with the state employment service or other applicable service.20 Finally, 

application of the principles set forth in the Shadrick decision will result in the percentage of the 

employee’s LWEC.21

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.22 The burden of proof is on the 

party attempting to show a modification of the wage-earning capacity determination.23

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met her burden of proof to modify OWCP’s 

December 14, 2017 LWEC determination.

The Board finds that the opinion of Dr. Bearden, delineated in several reports produced in 

2006 and 2007, represents the weight of the medical evidence with respect to appellant’s ability to 

work in the constructed position of customer order clerk, and that appellant has not established 

that modification of the December 14, 2017 LWEC determination is warranted because the 

original determination was erroneous.24 The Board further finds that Dr. Bearden provided an 

opinion of appellant’s work capacity based on an accurate factual and medical background and he 

properly found that appellant could perform sedentary duty with a 20-pound lifting restriction and 

no outreaching/overhead work using the left arm. The selected position of order clerk was a 

sedentary position with occasional lifting of 10 pounds. It was clearly within the work restrictions 

 

18 N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, id. at Chapter 2.816.4c (June 2013).

19 Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b 

(February 2011).

20 The job selected for determining wage-earning capacity must be a position that is reasonably available in the 

general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335 n. 9 

(2004); Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.816.6 (June 2013).

21 20 C.F.R. § 10.403(d), (e); see Albert C. Shadrick, 5 ECAB 376 (1953).

22 C.R., Docket No. 14-0111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

23 See T.M., Docket No. 08-0975 (issued February 6, 2009).

24 See supra note 22.
8

provided by Dr. Bearden.25 The Board thus finds that the probative medical evidence establishes 

the position was medically suitable.

The rehabilitation counselor confirmed that the order clerk position was vocationally 

suitable and was performed in appellant’s commuting area.26 The wages were reported as $313.85 

per week. OWCP applied the Shadrick formula to determine the LWEC. The earnings of $313.85 

was divided by the current pay rate for appellant’s date-of-injury job, to determine the wageearning capacity percentage. The pay rate for compensation purposes was then multiplied by the 

wage-earning capacity percentage. This amount was subtracted from the pay rate for 

compensation purposes to determine the LWEC.27 The record does not contain any evidence of 

error with respect to these calculations. The Board accordingly finds that no error in the original 

December 14, 2017 LWEC determination has been established.

Moreover, the Board finds that appellant has not established that modification of the 

December 14, 2017 LWEC determination is warranted by submitting medical evidence 

demonstrating that, after issuance of the December 14, 2017 determination, there was a material 

change in the nature and extent of her accepted employment-related conditions such that she could 

no longer work as a customer order clerk.28

After December 14, 2017, appellant continued to submit periodic reports from Dr. Persaud. 

In an October 23, 2018 report, Dr. Persaud diagnosed chronic left shoulder pain, status post 

subacromial decompression (with rotator cuff tear and acromioclavicular arthritis), muscle spasms, 

myofascial pain, depression (requiring ongoing psychiatric treatment), cervical disc bulge, and 

insomnia. In an August 22, 2019 report, he again diagnosed chronic left shoulder pain, status post 

subacromial decompression (with rotator cuff tear and acromioclavicular arthritis), cervical 

degenerative disc disease (with C2-3, C4-5, C5-6, and C6-7 disc bulges), muscle spasms,

myofascial pain, insomnia, and depression. Appellant also continued to submit reports of

Dr. Bearden. In September 18, 2018 and August 6, 2019 reports, Dr. Bearden diagnosed left 

rotator cuff capsule strain and discussed appellant’s medical treatment.

The Board notes that, although the reports of Dr. Persaud and Dr. Bearden mentioned 

appellant’s left shoulder condition, they do not show that the April 23, 2014 employment injury 

worsened such that appellant could no longer perform the limited duties of the order clerk position 

upon, which her LWEC capacity was based. Dr. Persaud and Dr. Bearden did not provide an 

 

25 In a January 4, 2017 report, Dr. Bearden indicated no repetitive use of the left arm, including typing. After 

appellant’s vocational rehabilitation counselor requested clarification of the ostensible typing restriction, Dr. Bearden 

clarified that appellant was able to engage in intermittent or occasional typing and data entry. There is no indication 

that the order clerk position required typing or data entry that was non-intermittent or engaged in beyond occasional 

frequency.

26 See supra notes 19 and 20.

27 See Albert C. Shadrick, supra note 21. See also 20 C.F.R. § 10.403(d), (e).

28 See supra note 22.
9

opinion on whether the April 23, 2014 employment injury prevented appellant from working as an 

order clerk.

29

 

The Board finds that appellant did not provide any medical evidence establishing that an 

accepted employment-related condition prevented her from working as an order clerk. Therefore, 

she did not establish that modification of the December 14, 2017 LWEC determination is 

warranted on that basis. Appellant also has not demonstrated that modification of the 

December 14, 2017 LWEC determination is warranted because she has been retrained or otherwise 

vocationally rehabilitated.30 For these reasons, appellant has not met her burden of proof to modify 

OWCP’s December 14, 2017 LWEC determination.

On appeal, counsel argues that OWCP failed to adequately consider appellant’s emotional 

condition in determining whether she was capable of working as an order clerk. However, the 

Board notes that there is no clear, probative evidence establishing that appellant’s emotional

condition preexisted the April 23, 2014 employment injury or that it developed as a consequence 

of the April 23, 2014 employment injury. Therefore, appellant’s emotional condition would not 

be considered in determining whether she was capable of working as an order clerk.31 

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 not met her burden of proof to expand the acceptance 

of her claim to include additional conditions causally related to the accepted April 23, 2014 

employment injury. The Board further finds that appellant has not met her burden of proof to 

modify OWCP’s December 14, 2017 LWEC determination. 

 

29 See L.B., Docket No. 18-0533 (issued August 27, 2018) (medical evidence that does not offer an opinion 

regarding the cause of an employee’s condition or disability is of no probative value); D.K., Docket No. 17-1549 

(issued July 6, 2018).

30 See id. 

31 See supra note 18.
10

ORDER

IT IS HEREBY ORDERED THAT the October 30, 2019 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: March 10, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board