United States Department of Labor

Employees’ Compensation Appeals Board

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J.W., Appellant

and

U.S. POSTAL SERVICE, CAROL STREAM 

POST OFFICE, Carol Stream, IL, Employer

__________________________________________

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Docket No. 22-0314

Issued: June 27, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. MCGINLEY, Alternate Judge

On December 28, 2021 appellant filed a timely appeal from a December 22, 2021 merit 

decision of the Office of Workers’Compensation Programs (OWCP).1 The Clerk of the Appellate 

Boards assigned Docket No. 22-0314.2 

On March 3, 2006 appellant, then a 39-year-old full-time distribution clerk, filed an 

occupational disease claim (Form CA-2) alleging that she developed rotator cuff syndrome and 

aggravation of carpal tunnel syndrome due to factors of her federal employment. OWCP initially 

accepted the claim for right rotator cuff sprain and bilateral carpal tunnel syndrome. It 

1 The Board notes that, during the pendency of this appeal from the December 22, 2021 merit decision, OWCP 

issued a January 27, 2022 nonmerit decision denying appellant’s request for an oral hearing before a representative of 

OWCP’s Branch of Hearings and Review. However, the Board and OWCP may not simultaneously exercise 

jurisdiction over the same issue(s) in a case on appeal. Therefore, OWCP’s January 27, 2022 decision isset aside as 

null and void. 20 C.F.R. §§ 501.2(c)(3), 10.626; see Order Dismissing Appeal, M.P., Docket No. 20-0200 (issued 

May 25, 2022); Russell E. Lerman, 43 ECAB 770 (1992); ArloniaB. Taylor, 44 ECAB 591 (1993) (Groom, Alternate 

Member, concurring in part and dissenting in part); Douglas E. Billings, 41 ECAB 880 (1990).

2 The Board notes that,following the December 22, 2021 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

subsequently expanded the acceptance of the claim to include bilateral rotator cuff syndrome of 

the shoulder and allied disorders, right biceps tendon rupture and contracture of joint, right 

shoulder region, on June 14, 2013.

3

 Appellant underwent OWCP-approved surgeries on 

October 10, 2007 for left carpal tunnel release, on April 2, 2008 for right carpal tunnel release, and

on November 23, 2010 for right shoulder arthroscopy. OWCP paid all appropriate compensation 

and she later returned to work with permanent restrictions.

By decision dated December 3, 2015, OWCP found that the position of modified 

distribution clerk, which appellant had been working since July 16, 2015, fairly and reasonably 

represented her wage-earning capacity. As her current earnings either met or exceeded the 

earnings of her date-of-injury position, OWCP reduced her entitlement to wage-loss compensation 

to zero due to no loss of wage-earning capacity (LWEC).

Appellant stopped work on August 4, 2021. On August 6, 2021 she filed a claim for 

compensation (Form CA-7) for total disability from work for the period commencing 

August 4, 2021. She continued to file CA-7 forms for continuing disability.

In a development letter dated August 18, 2021, OWCP noted that appellant had returned 

to work in a modified capacity on March 11, 2020 and worked until August 4, 2021, when she 

stopped work completely. It advised her that her claim for compensation was a claim for a 

recurrence due to a material change or worsening of her accepted work-related conditions. OWCP

requested that she provide additional factual and medical information supporting that her accepted 

condition worsened such that she was disabled from employment. It afforded appellant 30 days 

to respond to the request.

In an August 30, 2021 report, Dr. Catalina A. Grija, an internist, noted the course of 

appellant’s medical treatment, and that she was approved for limited duty with restrictions, but 

was now off work. She opined that, given appellant’s job duties, she had developed progressively

worsening pain in her shoulders, and lateral epicondylitis of the elbows and right index trigger 

finger.

By decision dated September 28, 2021, OWCP denied appellant’s recurrence of disability 

claim for the period commencing August 4, 2021.

4

On October 3, 2021 appellant requested reconsideration. She submitted additional claims 

for compensation for the period October 1 through 29, 2021 and for the period November 6 

through 12, 2021.

In a September 30, 2021 report, Dr. Grija elaborated on her August 30, 2021 report. She 

noted that appellant’s June 2021 magnetic resonance imaging (MRI) scan of the right shoulder 

showed findings of recurrence moderate insertional tendinopathy and peritendinitis of the 

3 Under OWCP File No. xxxxxx714 appellant has an accepted rotator cuff syndrome of the left shoulder for a 

traumatic injury of June 18, 2007. OWCP has administratively combined appellant’s claims, with the present case, 

OWCP File No.xxxxxx731, serving as the master file.

4 OWCP noted that it paid appellant wage-loss compensation for 44.00 hours for intermittent medical appointments 

taken from August 4 through September 3, 2021.
3

supraspinatus and insertional subscapularis tendinopathy. Dr. Grija stated that, after previous 

physical therapy treatments, appellant’s conditions temporarily improved, but had overall 

progressively worsened. She opined that, given appellant’s job duties, she has had worsening pain 

and arthritis in her shoulders, hands and elbows as she developed lateral epicondylitis of the elbows 

and right index trigger finger. Dr. Grija indicated that appellant had been off work since August 4, 

2021 due to swelling, numbness, tingling, burning sensations, sharp pains, cramping, weakness 

and stiffness in her hands, wrists, and right finger (trigger finger). Appellant also had difficulty 

driving, grabbing and holding onto objects. Dr. Grija opined that appellant could not lift over 10 

pounds, could not reach above her shoulders without strain and sharp pain to her neck and 

shoulders, and she could not push or pull heavy equipment due to her conditions. She concluded 

that appellant’s MRI and her symptoms, proved that her conditions related to bilateral rotator cuff 

tendinopathy, tennis elbow and carpal tunnel syndrome were chronic and worsening and 

significantly interfered with activities of daily living. Dr. Grija related that appellant would not 

recover her full function and would likely need long-term disability, pending a functional capacity 

evaluation (FCE). A copy of appellant’sJune 5, 2021 right shoulder MRI scan was also submitted.

By decision dated December 22, 2021, OWCP denied modification of its prior decision.

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

OWCP developed the evidence and adjudicated the issue as to whether appellant 

established a recurrence of disability as of August 4, 2021. However, the Board has held that, 

when an LWEC determination has been issued and a claimant submits evidence with respect to 

disability for work, OWCP must evaluate the evidence to determine if modification of the LWEC

determination is warranted.5 OWCP procedures specifically provide that, if a formal LWEC

decision has been issued and the claimant subsequently alleges a worsening of the accepted 

condition or conditions, such claim should be processed in accordance with procedures for 

modifying a formalLWECdetermination.

6

 In its December 22, 2021decision, OWCP adjudicated 

appellant’s recurrence claim without proper consideration of the LWEC determination.

The Board finds that OWCP should have determined whether appellant had established 

that the December 3, 2015 LWEC determination should be modified, based on a worsening of the 

accepted conditions.7 The Board will, therefore, remand the case to OWCP for proper 

adjudication, to be followed by issuance of a de novo decision.

8

5 M.J., Docket No. 18-1081 (issued May 22, 2020); A.S.,Docket No. 18-0370 (issued March 5, 2019); KatherineT. 

Kreger, 55 ECAB 633 (August 13, 2004).

6

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity 

Decisions, Chapter 2.1501.3a(2)(June2013).

7

Supra, note 7. 

8

Id.
4

IT IS HEREBY ORDERED THAT the December 22, 2021 decision of the Office of 

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

consistent with this order of the Board.

Issued: June 27, 2022

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board